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Showing 21 to 40 of 1076 Records
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2014 (10) TMI 1066
CENVAT Credit - clearances to SEZ Developers even prior to 2008 - specific amendments made to Cenvat Credit Rules, whether the said amendments were prospective or retrospective? - HELD THAT:- This Court had an occasion to consider the said question in THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT], wherein it was held that amendment has to be construed as retrospective in nature and the benefit of Rule 6(6)(i) as amended in 2008 has to be extended to the goods cleared to a ‘developer’ of a Special Economic Zone for their authorised operations. Therefore, there are no merit in this appeal.
Appeal dismissed.
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2014 (10) TMI 1065
Use/infringement of trade mark - Goodwill and reputation - Suit for permanent injunction, damages for infringement of trade mark WORLD BOOK, passing off, dilution, unfair competition, delivery up, and rendition of account or damages against the defendant - use of domain name - main case of the plaintiffs is that the defendant is not entitled to use the trade name/trademark WORLD BOOK as part of defendant’s corporate name or trade name - Principles of Balance of Conveniens.
HELD THAT:- The defendant’s entitlement to use other corporate name with different brand name cannot be denied if the defendant would join any book fair or seminar under different corporate name and trademark.
The plaintiffs’ objection in the present case is with respect to the use of the mark WORLD BOOK by the Defendant as a trade name/mark and/or domain name. The logo of the Defendant contained the trade mark/trade name WORLD BOOK of the Plaintiffs. The defendant has no right to use the trade mark/trade name of the plaintiffs in any form whatsoever. The use of the domain name WORLDBOOKCOMPANY.IN on the part of the defendant is also likely to cause confusion and deception in the mind of unwary class of customers. The business of the Plaintiffs’ is likely to be diverted to the defendant on account of features of the domain which contain the mark of the Plaintiff.
The plaintiffs’ mark WORLD BOOK in the present case is highly distinctive; it has acquired residual goodwill and reputation. It is a registered trademark. Hence, mere defences raised by the defendant are moonshine and flimsy which are against the law.
In view of the facts, circumstances and the evidence filed on record, the plaintiffs establish a prima facie case for the confirmation of the ex-parte order of interim injunction. The balance of convenience also lies in favour of the plaintiffs and against the defendant, if the interim order is not continued, the plaintiffs would suffer loss and irreparable injury. On the other hand, the defendant is also under injunction for the last more than one year and four months. Their adoption of the name is not honest.
The defendant’s application under Order XXXIX Rule 4 CPC is dismissed.
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2014 (10) TMI 1064
Weighted deduction u/s 35(2AB) on clinical trials outside India - AO observing that expenditure relating to clinical trials outside India have not been included by the prescribed authority in its report in Form No. 3CL, disallowed assessee’s claim of weighted deduction on such expenditure - HELD THAT:- On a perusal of the report of the prescribed authority in Form No. 3CL it becomes clear that such expenditure has, in fact, been mentioned in the said report of the prescribed authority. Therefore, reasoning of the AO is without any basis.
Furthermore, the issue relating to claim of weighted deduction on expenditure incurred on clinical trial outside India was subject matter of dispute in appeals filed by Revenue before the coordinate bench of this tribunal in assessee’s own case for the AY 2000-01 to 2002-03 and again in AY 2004-05 & 2005-06 [2010 (1) TMI 1299 - ITAT HYDERABAD].
Tribunal while deciding the issue upheld the order of CIT(A) by observing that assessee is entitled for weighted deduction on expenditure incurred on clinical trials outside India. As the CIT(A) has followed the decision of the coordinate bench of this Tribunal in assessee’s own case for preceding assessment year, there is no reason to interfere with the same. Accordingly, we uphold the order of CIT(A) by dismissing grounds raised by the department.
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2014 (10) TMI 1063
Deduction u/s.80P(2)(a)(i) - assessee is a co-operative credit society registered under Co-operative Societies Act engaged in the business of accepting deposits from members and lending to members of the co-operative credit society only on the basis of self help and mutuality - AO was of the firm belief that the assessee fulfils the condition laid down u/s.56(c)(ccv) of part V of the Banking Regulation Act, 1949 for being a co-operative bank and proceeded by denying the claim of deduction - HELD THAT:- The Hon’ble Gujarat High Court in the case of CIT vs. Jafari Momin Vikas Co-op. Credit Society Ltd. [2014 (2) TMI 28 - GUJARAT HIGH COURT] as held we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’
Similar view is taken by the Tribunal’s Mumbai Bench in the case of M/s. Mumbai Teleworkers Co-op. Credit Society Ltd. [2014 (7) TMI 1057 - ITAT MUMBAI] and in the case of M/s. Kulswami Co-op. Credit Society Ltd. [2014 (4) TMI 355 - ITAT MUMBAI] - Decided against revenue.
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2014 (10) TMI 1062
Addition u/s 68 - AO noticed from AIR information that the assessee has deposited cash in bank account - HELD THAT:- Assessee has undertaken to fully co-operate with the tax authorities and also agreed to produce all the relevant parties who have given cash to the assessee and to whom cheques were issued. Further the assessee has also agreed to furnish all other details. We are of the view that, in the interest of natural justice, the assessee may be given one more opportunity to prove the cash deposits made into the bank accounts.
Accordingly, we set aside the order of CIT(A) on these two issues and restore them to the file of the assessing officer with the direction to examine them afresh after affording necessary opportunity of being heard to the assessee and take appropriate decision in accordance with the law. We prefer to set time frame for completion of the assessment.
We direct AO to complete the assessment within three months from the date of receipt of this order. The assessee is also directed to fully co-operate with AO in completing the assessment by furnishing all the details that may be called for and by producing the parties as may be required by the assessing officer. Assessee is treated as allowed for statistical purposes.
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2014 (10) TMI 1061
Reopening of assessment u/s 147 - notice beyond four years from the end of the relevant assessment year - jurisdiction to the AO to issue reopening notice viz. failure on the part of the petitioner to truly and fully disclose all material facts necessary for assessment - HELD THAT:- We are unable to understand/accept the submission made on behalf of the Revenue that Schedule 21 Notes to Annual Accounts were written in small print and hidden away in the Balancesheet resulting in the AO omitting to notice during the regular assessment proceedings. The reasons in support of the impugned notice which have been issued long after the completion of the regular assessment proceedings on 21 March 2002 rely upon the same Notes to Annual Accounts to issue impugned notice for reopening of the assessment.
The submission of the Revenue based on Explanation 1 to Section 147 that the Notes to Annual Accounts could only have been discovered by the AO with due diligence and therefore would not amount to a disclosure within the meaning of the first proviso to Section 147 is not acceptable. This for the reasons Explanation 1 to Section 147 of the Act does not refer to the Balancesheet and Profit & Loss Account which is necessarily to be submitted alongwith the return of income, otherwise the return of income is itself regarded as defective u/s 139 of the Act. Thus Explanation 1 to Section 147 of the Act would have no application to the present facts.
While allowing the petition on the above grounds, we must make it clear that we do not accept the submissions of the petitioner that the reasons in support of the impugned notice is devoid of particulars and therefore bad in law. The reasons do indicate why according to the AO there has been escapement of income. The impugned notice as well as the order rejecting the petitioner's objection to the impugned notice are quashed and set aside.
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2014 (10) TMI 1060
Infringement in the use of trademark or not - Seeking interim injunction against the appellant restraining the appellant from using the mark ‘D’DAAZS’ or any other mark deceptively similar to that of the respondent-plaintiff’s trade mark ‘HAAGEN-DAZS’ in relation to ice cream - HELD THAT:- Since time immemorial the Supreme Court has consistently sounded a note of caution that the competing marks have to be compared keeping in mind an unwary purchaser of average intelligence and imperfect recollection - Consumers of any product do not deliberately memorize marks. They only retain a general, indefinite, vague, or even hazy impression of a mark and so may be confused upon encountering a similar mark. Consumers may equate a new mark or experience with one that they have long experienced without making an effort to ascertain whether or not they are the same marks. The consideration therefore is whether one mark may trigger a confused recollection of another mark. Thus, if the marks give the same general impression confusion is likely to occur.
The ‘ordinary observer’ test is applied to determine if two works are substantially similar. The Court will look to the response of an ‘average lay observer‟ to ascertain whether a copyright holder's original expression is identifiable in the allegedly infringing work - Since it is employed to determine qualitative and quantitative similarity in visual copyright work, the said test can also be usefully applied in the domain of trademark law as well.
The Courts have reiterated that the test for substantial similarity involves viewing the product in question through the eyes of the layman. A layman is not expected to have the same ‘hair-splitting’ skills as an expert. A punctilious analysis is not necessary. A layman is presumed to have the cognition and experiences of a reasonable man. Therefore, if a reasonable observer is likely to get confused between the two products then a copyright violation is said to take place - Transposing the said principles in the context of trademark infringement, one may venture to assess similarity and likelihood of confusion between rival marks on the touchstone of the impression gathered by a reasonable observer, who is a layman as opposed to a connoisseur.
No interference is called for with the impugned order passed by the learned Single Judge. Consequently, the present appeal is dismissed.
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2014 (10) TMI 1059
Seeking to assail the territorial jurisdiction of this Court invoked by the original writ petitioner - doctrine of forum conveniens - HELD THAT:- Undisputedly, the first respondent’s business is located at Mumbai. This gave rise to the first respondent filing applications under the Patents Act in the Office of the Registrar of Patents at Mumbai, and the patents of the first respondent were registered at Mumbai. It is in fact the petitioner which was aggrieved by the registration of the patents in favour of the first respondent and sought revocation of the patents by initiating proceedings before the Gujarat High Court. In those proceedings, the first respondent took an objection about the jurisdiction of that Court. The first respondent also initiated criminal proceedings before the X Metropolitan Magistrate’s Court at Mumbai. He had also filed a writ petition in the Bombay High Court, which he subsequently withdrew on account of other reasons.
The petitioner was desirous of an early adjudication on the issue of the applications filed for revocation of patents. The parties thus joined together to have the matter heard at Chennai, which was the Principal Seat of the IPAB, on account of time being at the disposal of the IPAB. It is in this context that the hearing was held by the IPAB at Chennai and the final order was passed at Chennai and not at Mumbai. In our view, this was an arrangement only for convenience of hearing - Merely because both the parties having agreed to get the matter heard early, made arrangements through their counsel to attend the hearings at Chennai being the Principal Seat of the IPAB, would not make a difference and it is a fit case where the principle of forum conveniens should be invoked and the parties be put to adjudication before the High Court of Bombay, rather than this Court.
The present factual matrix is not even where it is the situs of the appellate authority in question. The Bench of the appellate authority was actually located at Mumbai and thus, only for convenience of hearing for certain days were sittings held at Chennai. This is a distinct factor, even though the Full Bench of the Delhi High Court in M/s. Sterling Agro’s case [2012 (6) TMI 76 - DELHI HIGH COURT - LB] had in fact observed that an order of the appellate authority constitutes a part of the cause of action, yet the same may not be a singular factor, and the High Court may refuse to exercise jurisdiction by invoking the doctrine of forum conveniens. The mere fact that hearing was held at Chennai rather than at Mumbai on account of a given inadequacy of sittings at Mumbai by the IPAB Circuit Bench at Mumbai, thus would not imply that this Court should necessarily exercise the jurisdiction.
Application allowed.
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2014 (10) TMI 1058
Levy of penalty u/s. 271D - Cash Loans taken - whether the assessee has accepted cash loans from various parties in contravention of the provisions of sec. 269SS so as to invite the rigour of the penal provision of S.271D ? - HELD THAT:- From the records available before us, we are not able to decide the issue as to whether the assessee has taken cash loan as stated by the department, or there are only journal entries as claimed by the assessee, since material to that effect have not been furnished before us. We therefore, deem it just and proper to remit the matter to the file of the Assessing Officer, to verify the fact as to whether the assessee has actually received cash loan from five parties or there were mere journal entries to that effect. If ultimately, it is found that no cash loan was actually received by the assessee in the course of the transactions from five parties to the tune of Rs. 10,85,010/- and there were only journal entries to that effect, then no penalty can be levied under Sec.271D - AO shall accordingly redecide the issue of applicability of the penal provisions of Sec.271D to the facts of the present case, in accordance with law, keeping in view our aforesaid direction, and after giving reasonable opportunity of hearing to the assessee.
Levy of Penalty on payments other than account payee cheques - CIT(A) has given categorical finding after examining the bank certificates furnished before the Assessing officer, that transactions of M/s. Madura Capital Market Services Pvt. Ltd. and Mr. Vishal M. Kapadia were not be account payee cheques. Also for M/s. Padinjarathala Securities Ltd. only part of the transaction was by account payee cheque. Being so, the CIT(A) justified the levy of penalty of 20% of the amount of and confirmed the levy of penalty .
Regarding the deposits relating to transactions amounting to Rs. 25.50 crores - Admittedly, the CIT(A) has not called for remand report from the Assessing officer in order to verify the correctness of the bank certificate. The CIT(A) should have called for remand report from the Assessing officer so as to physically examine the copies of Cheque Nos. 191212, 191106, 191121 and 191181. Without examining the copy of cheques physically, she deleted the penalty which is not proper. In our opinion, it is just and proper to remit the entire issue to the file of the Assessing officer to conduct necessary enquiry and the assessee has to produce necessary evidence in support of its claim and if the assessee fails to produce the necessary evidence, the Assessing officer is at liberty to take adverse inference and decide accordingly.
Levy of penalty u/s. 271E - Amounts paid as commission by way of book entries and repayment of loan by book entries - HELD THAT:- It is just and proper to remit the entire issue to the file of the Assessing officer to conduct necessary enquiry and the assessee has to produce necessary evidence in support of its claim and if the assessee fails to produce the necessary evidence, the Assessing officer is at liberty to take adverse inference and decide accordingly.
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2014 (10) TMI 1057
Dishonor of Cheque - whether such presentation of the cheque for the second time and then to lodge a complaint on dishonour, was permissible? - HELD THAT:- There is no doubt what so ever that a prosecution based upon a second or successive dishonour of the cheque is permissible as long as the same satisfies the requirements stipulated in the proviso to Section 138 of the NI Act - Incidentally, a finding by the appellate court that the petitioner had suppressed the fact of the cheque having been dishonoured in the first instance, is also incorrect. As may be seen from the sworn statement of the petitioner before the trial court, this fact has been stated.
Accordingly, in the present case on hand, as the complainant was well within his right to have made a second presentation of the cheque in question and the complaint filed upon dishonour and failure to meet the demand under a notice issued thereafter, cannot be said to be bad in law.
The appeal is allowed.
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2014 (10) TMI 1056
Dishonor of Cheque - existence of debt and liability or not - prosecution under Section 138 of Negotiable Instruments Act - liability for act of the partners of the firm - vicarious liability or not - HELD THAT:- The settled position of law is that the act of the partners of the firm can well be construed as an act on behalf of all the partners if the circumstances warrants such a conclusion. Also, that the Firm is not presumed, conversely, to be an agent of the individual partner, in the considered opinion of this Court. Every partner is in contemplation of the law the general and accredited agent of the partnership, or as it is some times expressed each partner is praepositus Negotiis Societaties, and may resultantly bind all the other partners by his acts in all matters which are within the ambit and objects of the partnership.
As per Section 25 of the Indian Partnership Act, 1932 every partner is liable, jointly with all other partners and also severally for all acts of the Firm done while is a partner. Admittedly, a Firm is not a legal entity. It is only a collective or compendious name for all the partners, as opined by this Court. To put it differently, a Firm does not have any existence away from its partners. Each partner shall be liable as if the 'Debt" of the firm has been incurred on its personal liability - The obligation of the Respondent / Accused that at the time of the offence was committed he was not incharge and was not responsible to the Firm for the conduct of the business of the Firm wold arise only when firstly the Appellant / Complainant make proper and necessary averments in the complaint and establishes that fact.
As a matter of fact, the mere writing or filing of an acknowledge of the debt by one partner does not necessarily of itself bind its co-partner unless he had Authority, express or imply to do so. Furthermore, the proof of authority from other partner is quite essential and necessary and cannot be presumed. Also that after dissolution, however, express authority must be proved. A partner will have no imply authority to bind the firm unless it can be shown that giving of guarantees is necessary for carrying on the business of the firm in ordinary fashion. When an Negotiable Instrument is regularly drawn by a partner in a trading Firm in a transaction ancillary to form business another partner is not less liable because his name does not appear on the face of the instrument.
Without filing a complaint against the partnership firm, filing a complaint against the Respondent / Accused in his individual capacity is per se not maintainable in the eye of Law - Ordinarily, a complaint based on bald / vague averments can only be construed to be a case of utilising the process of Court in an otiose fashion. Also that, in the instant case, though Ex.P1 Cheque appears in the name of the Respondent / Accused as partner for 'Sri Karpaga Vinayagar Jewellery' yet the principal offender viz., Jewellery partnership firm was not arrayed as the principal Accused along with other Partners / Accused, if any. Only when the 'Sri Karpaga Vinayagar Jewellery' (Partnership Firm) was shown to have committed an offence under Section 138 of Negotiable Instruments Act, 1881, the Respondent / Accused can be roped in as an Accused in the capacity as partner of the said Jewellery Firm and then only he along with other partners, if any, can be liable for the dishonour of Ex.P1 Cheque in issue.
The Criminal Appeal is dismissed
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2014 (10) TMI 1055
Maintainability of complaint - public servants and Gazetted officers of the State Government of Chhattisgarh - initiation of criminal proceedingswithout prior sanction from the appointing authority as per Section 197 of the Code of Criminal Procedure - Whether prior sanction of the competent authority to prosecute the Appellants, who are admittedly public servants, is mandatory Under Section 197 of the Code? - whether the complaint filed by the Respondent is motivated and afterthought, after losing the battle in civil litigation and amounts to misuse and abuse of law? - HELD THAT:- The Respondent had filed the civil suit challenging the decision of the Electricity Board in returning his tender documents on the ground that the same were not as per pre-qualifying conditions of the tender. He had thus resorted to the civil remedy. However, he failed therein as for the reasons best known to him, he sought to withdrew the same and accordingly the same was dismissed for non-prosecution. It is trite that once the suit is withdrawn, that acts as constructive res judicata having regard to the provision of Order XXIII Rule 1 of the Code of Civil Procedure. Also, when suit is dismissed under Order IX Rule 8 Code of Civil Procedure, fresh suit under Order IX Rule 9 is barred. The legal implication would be of that the attempt of the Respondent in challenging the decision of the Tender Committee in not considering his tender remained unfaulted.
No doubt, the Respondent in his complaint has right to colour his complaint by levelling the allegations that the Appellants herein fabricated the records. However, on the facts of this case, it becomes difficult to eschew this allegation of the Respondent and we get an uncanny feeling that the contents of FIR with these allegations are a postscript of the Respondent after losing the battle in civil proceedings which were taken out by him challenging the action of the Department in rejecting his tender. When he did not succeed in the said attempt, he came out with the allegations of forgery. It is thus becomes clear that the action of the Respondent in filing the criminal complaint is not bonafide and amounts to misuse and abuse of the process of law.
The attempt is made by the Respondent to convert a case with civil nature into criminal prosecution. In a case like this, High Court would have been justified in quashing the proceedings in exercise of its inherent powers Under Section 482 of the Code. It would be of benefit to refer to the judgment in the case of INDIAN OIL CORPORATION VERSUS NEPC INDIA LTD & ORS [2006 (7) TMI 575 - SUPREME COURT], wherein the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available is available or has been availed.
Order of the High Court is set aside - appeal allowed.
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2014 (10) TMI 1054
Income from other sources - Interest earned by the assessee on funds temporarily parked - rejecting the claim of the assessee that interest income is not chargeable to tax at all - HELD THAT:- We are also of the view that the decision in the case of KUIDFC [2006 (2) TMI 114 - KARNATAKA HIGH COURT] will be squarely applicable to the facts of the present case wherein answered the question Interest earned by Governmental nodal agency set up for development activities on funds provided by Central Government but parked in banks for the period of non-utilisation is income chargeable to tax in negative.
CIT(A) has not followed the aforesaid decision on the basis that KUIDFC was engaged in welfare activities to transform Bangalore to a mega city, whereas the assessee was engaged in trading of agricultural produce. In our view, this distinction sought to be made out by the CIT(A) cannot be accepted. The assessee as well as KUIDFC are engaged in welfare activity wholly owned by State Government. KUIDFC is also a company. The assessee is also engaged in welfare activity and formed for the purpose of helping the agricultural produce and procession of export.
Therefore the ratio laid down by the Hon’ble Karnataka High Court in the case of KUIDFC (supra) will clearly apply to the facts of the present case also. The fact that the Assessee would charge commuters for use of metro rail service which is an infrastructure to be created by the Assessee cannot be the basis not to follow the decision in the case of KUIDFC (supra). KUIDFC would also charge fee for use of infrastructure facility that it creates from the end users. CIT(A) would call this a nominal fee and distinguish the fare charged by a commuter of metro rail. We are of the view that the distinction sought to be made out by the CIT(A) from the case of KUIDFC (supra) and the Assessee’s case in our view cannot be sustained - we hold that the interest income in question cannot be brought to tax as income of the assessee - Decided in favour of assessee.
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2014 (10) TMI 1053
Dishonor of Cheque - application of presumption laid down in Section 118 of Negotiable Instruments Act when the defendants have completely denied the execution of Ex. B6 - improbabilities of the execution of the transaction referred to in the Ex. A.6 in view of Ex. B.1 - whether the parties have discharged the onus cast upon them in establishing their respective cases? - HELD THAT:- The main mortal attack on the plaintiff's case is based on Ex. B.1. According to the learned counsel for the appellants, Ex. B.1 completely consigned Ex. A.6 to the coffin and this had resulted in eclipsing the effect of Section 118 of the Negotiable Instruments Act to Ex. A.6. Expanding his this submission, the learned counsel for the appellants would submit that the alleged old promissory note is dated 15.06.2013, while in his Ex. B.1 letter dated 26.08.2013, just few months after the old promissory note how plaintiff could have been lamented about non-payment of interest and amount for a long period - There was no reference in Ex. B.1 that it has been written in connection with the promissory note debt. Ex. B.1 would not absolve the defendants from their very duty to rebut the presumption arose under Section 118 of the Negotiable Instruments Act.
The arising of the presumption under Section 118 of the Negotiable Instruments Act noticed by the First Appellate Court with reference to Ex. A.6 rightly resulted in vacating the judgment and decree of the trial Court and substitution of them with its own judgment and decree, decreeing the suit.
Appeal dismissed.
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2014 (10) TMI 1052
Direction regarding disbursement of the amount - HELD THAT:- The Official Liquidator has distributed forms for disbursement pursuant to the said orders. The members of the applicant-Association shall submit back those forms duly filled. In respect of the grievance made by learned advocate Mr.Vasavada that Official Liquidator has been insisting for mentioning the date of the order, it is observed that such incident is uncalled for in asmuch as the directions of the Division Bench are clear and operative, as they stand today.
The process of disbursement in compliance of the directions of the Division Bench shall not be haulted - the matter shall stand over to 14th November, 2014.
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2014 (10) TMI 1051
Whether Chapter IIB of the West Bengal Land Reforms Act would be applicable qua the Appellants in view of the fact that they belonged to a place which was in erstwhile State of Bihar and by virtue of the State Reorganisation Act, their lands were included in the State of West Bengal? - HELD THAT:- The land in question was transferred from the State of Bihar to the State of West Bengal pursuant to the enactment of Bihar and West Bengal (Transferred Territories) Act, 1956 and the provisions of West Bengal Land Reforms Act were extended to the transferred territories. Consequently, the land in question was shown to have been vested in the State and the Appellant challenged the said order of vesting by filing a writ petition being CR No. 3466 of 1984. The said writ petition was allowed by the Calcutta High Court in terms of Order dated 25.11.1994 and the said order of vesting was quashed on the ground of non applicability of Chapter IIB of the aforesaid Act.
It is well settled that even if the decision on a question of law has been reversed or modified by subsequent decision of a superior court in any other case it shall not be a ground for review of such judgment merely because a subsequent judgment of the single judge has taken contrary view. That does not confer jurisdiction upon the tribunal to ignore the judgment and direction of the High Court given in the case of the Appellants.
The High Court also fell in error in affirming the order of the tribunal, hence these orders cannot be sustained in law - Appeal allowed - decided in favor of appellant.
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2014 (10) TMI 1050
Dishonor of Cheque - liability of administrator/partner of a partnership firm - Whether an administrator/partner of a partnership firm would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without partnership firm being arraigned as an accused? - HELD THAT:- In the present case, the original complainant has not joined the partnership firm as an accused, and the complaint is filed only against the driver of the firm, and therefore, in view of the decision rendered by the Honourable Apex Court in the case of In the present case, the original complainant has not joined the partnership firm as an accused, and the complaint is filed only against the driver of the firm, and therefore, in view of the decision rendered by the Honourable Apex Court in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT], all the aforesaid impugned complaints in the present three cases are not maintainable. Hence, this Court can exercise the powers under Section 482 of the Cr.P.C. for quashing and setting aside the impugned complaints.
All the aforesaid impugned complaints in the present three cases are not maintainable. Hence, this Court can exercise the powers under Section 482 of the Cr.P.C. for quashing and setting aside the impugned complaints.
Application allowed.
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2014 (10) TMI 1049
Disallowance of employees contribution of provident fund & ESI in computing taxable total income - Contribution remitted beyond the due date for payment but within the due date for filing of return applying the provisions of section 43B - HELD THAT:- This issue has been decided in favour of the assessee by various High Courts following the decision in the case of CIT Vs.Alom Extrusions Ltd [2009 (11) TMI 27 - SUPREME COURT] held that omission of second proviso to section 43B and amendment of first proviso by Finance Act, 2003 are curative in nature and are effective retrospectively and thus with effect from 1.4.1988 i.e. the date of insertion of first proviso. The co-ordinate Bench of this Tribunal considering a similar issue in the case of M/s. Venkateswara Electrical Industries P.Ltd. Vs. DCIT [2014 (8) TMI 960 - ITAT CHENNAI] following the decision of Amil Ltd. [2014 (8) TMI 960 - ITAT CHENNAI] held that even the employees contribution to provident fund is to be allowed as deduction if it is paid within due date for filing of return - Decided in favour of assessee.
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2014 (10) TMI 1048
Exemption u/s 11 - refusing registration u/s 12AA - Proof of charitable object u/s 2(15) - non-approval of the state government for running educational institutions - HELD THAT:- There is no dispute that the assessee’s objects hereinabove point out education and ancillary activities are ‘charitable purposes’ prescribed u/s 2(15) of the Act. There is no preference given to any particular group of people. We find from page 43 of the paper book that the Directorate of Tamil Nadu Matriculation Schools, Chennai has already accorded approval on 4.3.2014 permitting the assessee to open a school for LKG to VIIIth class from academic year 2014-15. Therefore, the first objection does not survive.
Assessee has not commenced its charitable activities and its activity as a commercial organization - the assessee has already enrolled students in the school. The hon'ble jurisdictional high court in DIT(E) vs M/s Seervi Samaj Tambaram Trust [2014 (2) TMI 32 - MADRAS HIGH COURT] has held that registration u/s 12AA of the Act ought not be refused on the ground of non-commencement of charitable activities.
Lack of genuineness in the assessee’s activities as well - we accept the assessee’s contentions and hold it entitled for registration u/s 12AA of the Act. Needless to say, the issue of commercial activities and lack of genuineness abovesaid are left to be examined in the course of assessment as per law. - Decided in favour of assessee.
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2014 (10) TMI 1047
Revision u/s 263 by CIT - As per CIT AO has wrongly granted deduction u/s 80IC - HELD THAT:- On perusal of the above paragraph in the assessment order, coupled with the facts that in the earlier assessment year the same AO denied the exemption u/s 80IC to the assessee on the very same grounds and the facts that the CIT (Appeals) has reversed such addition, we are of the opinion that the AO has properly applied his mind and hence take a plausible view. Thus applying the proportions laid down in the case of CIT vs. Max India Ltd.[2007 (11) TMI 12 - SUPREME COURT] and case of Malbar Industries Co. Ltd. Vs. CIT 243 ITR 83 (SC)[2000 (2) TMI 10 - SUPREME COURT] we conclude that order passed u/s 263 is bad in law. - Decided in favour of assessee.
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