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Showing 21 to 40 of 1398 Records

2020 (10) TMI 1378

Plea of juvenility - juvenile as per the Juvenile Justice Act, 1986 or not - HELD THAT:- This Court at this stage can decide and determine the question of juvenility of Satya Deo, notwithstanding the fact that Satya Deo was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced. As Satya Deo was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.

Whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide Sub-section (1) to Section 111 repeals the 2000 Act, albeit Sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act. Section 69 'Repeal and saving clause' of the 2000 Act is identical as Sub-section (1) thereof had repealed the 1986 Act and Sub-section (2) provides that notwithstanding such repeal anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act.

In light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an Accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.

While upholding the conviction of Satya Deo, the sentence of life imprisonment set aside - matter remanded to the jurisdiction of the Board for passing appropriate order/directions Under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.

The appeal filed by the Satya Deo is partly allowed.
2020 (10) TMI 1377

Seeking grant of bail - concealment of contraband material (Charas) weighing 3285 grams - HELD THAT:- It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.

Considering the facts and circumstances on record, the appellant is entitled to the benefit under Section 439 of the Code - Appeal allowed.
2020 (10) TMI 1376

Murder - disciplinary enquiry - Proof of misconduct in disciplinary proceedings - acquittal of accused - HELD THAT:- In the present case, the Respondent was acquitted of the charge of murder - The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the Rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the Respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove.

But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.

The direction of the Division Bench for reinstatement is set aside. In exercise of the jurisdiction Under Article 142 of the Constitution, it is directed that the cessation from service will notionally take place on the Respondent completing minimum qualifying service. The direction of the High Court that the Respondent shall not be entitled to back wages is upheld. The retiral dues of the Respondent shall be computed and released on this basis within a period of three months - Appeal allowed.
2020 (10) TMI 1375

Grant of Regular bail - conspiracy - murder - HELD THAT:- It appears that though the name of the applicant is shown in the FIR for the alleged offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, for the incident which took place on 9th May 2020, on perusal of the charge-sheet papers, it appears that the complainant in the subsequent statement dated 3rd June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details.

Perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No. 11993005200314 of 2020 dated 9th May 2020 registered with Adesar Police Station, Bhachau, District Kutch on executing a personal bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - bail application allowed.
2020 (10) TMI 1374

Rectification of mistake - MA is directed at the instance of Revenue pointing out apparent error in the order of the Tribunal [2024 (2) TMI 428 - ITAT AHMEDABAD]- assessment framed u/s 147 relying on belief of CBI - as pleaded in the MA that case of the Revenue falls within the exception clause (e) of para-10 of the CBDT Circular i.e. proceedings in this case was taken up on the basis of external information i.e. CBI - HELD THAT:- As assessee did not dispute about this, and submitted that appeal of the assessee for this assessment year is pending in the Tribunal for adjudication. This appeal was listed last on 15.9.2021, but Bench did not function, hence this is pending. He do not raise objection for recall of this order of the Tribunal for adjudication on merit.

On due consideration of the above facts, this MA is allowed and the appeal of the Revenue is restored to original number. Registry is directed to list this appeal for hearing along with cross appeal.
2020 (10) TMI 1373

Cancellation of sale and forfeiture of amount deposited - failure to comply the terms and conditions of auction sale - petitioner alleges high handedness of the respondent Bank in cancelling the sale and forfeiture of the amount deposited - HELD THAT:- From the material on record it is established that it is the petitioner who having not deposited the 75% of the auction sale within stipulated time, has to blame herself. The circular of the Reserve Bank of India relied by the petitioner in paragraph 6.7 of the petition is of no assistance to the petitioner, as it is applicable to the borrowers. Even the impugned cancellation communication reveals that the petitioner was given the reminders and Covid 19 extension which is not denied by the petitioner.

There are no illegality in the impugned communication as would warrant any indulgence - petition dismissed.
2020 (10) TMI 1372

Approval of Resolution Plan - Prior permission of the CCI was not obtained under Proviso to Section 31(4) of I&B Code - It was held by NCLAT that the Adjudicating Authority was conscious of CCI approval and hence, ignoring the fact that CCI approval has been obtained post CoC approval of the Resolution Plan is in order.

HELD THAT:- There are no reason to interfere with the impugned order since no substantial question of law is involved in the appeal.

The Civil Appeal is accordingly dismissed.
2020 (10) TMI 1371

Invocation of bank guarantee that had been furnished by the petitioner as security deposit - requirement to fulfill certain preconditions before invoking the arbitration - HELD THAT:- There is a clear indication therein that the terms of the Concessionaire Agreement are to be accorded priority over all other agreements and documents that formed part of the Concessionaire Agreement. The recital 'F' of the Concessionaire Agreement, no doubt, indicates that the RFQ, RFP and LOIA would all form integral parts of the Concessionaire Agreement. The point to be noted, however, is that in the event of ambiguities and discrepancies arising between clauses in the Concessionaire Agreement and clauses in the RFP, as in this case, it is the clause in the Concessionaire Agreement that has to prevail. No doubt, it is only in the event of a 'conflict' that the relevant clause in the Concessionaire Agreement would prevail over the corresponding clause in the RFP. On an overall perusal of the clauses in the RFP as also in the Concessionaire Agreement, I find that the clauses in the Concessionaire Agreement which deal with the same subject matter as the corresponding clause in the RFP were intended to override the latter clauses in the RFP.

The contention of the learned senior counsel for the respondent cannot be accepted that it is only in the event of a challenge to clause 5.15 of the RFP on the ground that it is violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India, that this Court can hold the said clause, in the RFP, as illegal. After the amendment of the 1996 Act in 2015, the law must be taken to be that any clause in an agreement, that requires one of the contracting parties to make a deposit of amount as a precondition for invoking the arbitration, has to be seen as rendering the entire clause arbitrary, being not only excessive or disproportionate but leading to a wholly unjust situation in arbitration proceedings, that are ordinarily to be encouraged on account of the high pendency of cases in courts and the ever-increasing cost of litigation - it is opined that even if the clause in the RFP is to be treated as supplementing Article 22 of the Concessionaire Agreement, the offending conditions in the RFP would have to be ignored in view of the declaration of law by the Supreme Court.

Article 22 of the Concessionaire Agreement constitutes the arbitration agreement between the parties, discretion required under Section 11 of the 1996 Act, and appointment of a sole arbitrator is made - Justice (Retd.) Sri. T.R. Ramachandran Nair, a former Judge of this Court is nominated as the sole arbitrator to arbitrate on the disputes that have arisen between the parties herein.

This Arbitration Request is allowed.
2020 (10) TMI 1370

Addition u/s 68 - unexplained cash credit for the loans taken - HELD THAT:- Both the lender companies i.e. Aereo Deal Com Pvt. Ltd and M/s Chamak Traxim Pvt. Ltd are genuine companies carrying out regular business of finance in their capacity as Non Banking Finance Companies registered with Reserve Bank of India and having sufficient liquidity to give loan to various borrowers. Ld. CIT(A) has also mentioned the fact that Mr. Deepak Kalani who controls the financials of M/s ADPL and M/s CTPL is having long time friendship with the Directors of Agrawal Group of Companies and in the past also he has given loan to other group concerns of Agrawal Group on interest.

We further find that the issue of unexplained cash credit u/s 68 of the Act from the very same lender companies namely M/s Aereo Deal Com Pvt. Ltd and M/s Chamak Traxim Pvt. Ltd which were received by another group concern of the assessee namely M/s Agrawal Coal Corporation Pvt. Ltd and Admanum Finance Ltd came for adjudication before the Tribunal wherein the appeal was filed by the revenue challenging the finding of Ld. CIT(A) deciding in favour of the assessee. The Co-ordinate Bench has dealt this issue in Agrawal Coal Corporation Pvt. Ltd [2011 (10) TMI 496 - ITAT INDORE] and has confirmed the finding of Ld. CIT(A) thereby confirming the identity of the lenders , genuineness of transactions and accepting the creditworthiness of the lender companies namely M/s ADPL & M/s CTPL and holding that the Ld. A.O was not justified in making the addition u/s 68.

Thus assessee has duly proved the identity of the cash creditors, genuineness of the transaction and proved creditworthiness of the lender companies which thus do not call for any addition u/s 68 of the Act and the interest paid on such loans should be allowed.

Disallowance u/s 14A r.w.r. 8D - CIT(A) held that disallowance of interest was not called for since at the end of the year it earned net interest income and secondly the assessee had sufficient own capital and from reserves to cover up the investments made - HELD THAT:- As far as interest disallowance is concerned we observe that during the year assessee has earned interest income which is higher than the interest paid during the year.

The judgment of Hon’ble Bombay High Court in the case of CIT V/s Reliance Utilities & Power Ltd [2009 (1) TMI 4 - BOMBAY HIGH COURT] is also squarely applicable in the case of assessee as the assessee has sufficient share capital and free reserves at Rs. 1584.75 lakhs and Rs. 1682 lakhs as on 31.3.2013 and 31.3.2014 respectively to cover up the investments of Rs. 1101.46 lakhs. This itself proves that borrowed funds have not been utilised for making these investments and nothing contrary has been brought to our notice by the revenue authorities. Therefore we confirm the finding of Ld. CIT(A) to the extent of that no interest disallowance was called for u/s 14A of the Act in the case of the assessee and thus the interest disallowance has been rightly deleted.

Remaining portion as computed by the Ld. A.O applying 0.5% on the average investment the word average investment referred in Rule 8D of I.T rules certainly does not include the investments made for earning taxable interest income but for sure includes the investment fetching tax free interest and those made in equity shares, which can be listed or unlisted.

The contention of the assessee and finding of Ld. CIT(A) that investment in unlisted companies should not consider for computing the disallowance under third limb of rule 8D is devoid of any merit. There is no bar under the law for the unlisted companies to declare dividend. In other words dividend income can be generated from both the listed as well as unlisted companies. So for calculating the disallowance under third limb of Rule 8D of I.T. Rules we first need to subtract the investment in debentures of Rs. 5 crores from the total average investments of Rs. 11.01 crores.

The resultant average investment will be Rs. 6.01 crores and 0.5% of this average investment works out to Rs. 3,00,731/-. However the disallowance so calculated at Rs. 3,00,731/- should not exceed the dividend income earned by the assessee during the year at Rs. 2,70,120/-.

Our this view of not making disallowance u/s 14A of the Act exceeding the total exempt income earned during the year is on the basis of the judgment of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] wherein as confirmed the finding of Tribunal that in the absence of any exempt income disallowance u/s 14A of the Act is not warranted. In view of the above judgment we sustain the disallowance u/s 14A of the Act at Rs. 2,71,120/-. Thus Ground No. 1 of assessee’s appeal in case of Admanum Finance Ltd is partly allowed.
2020 (10) TMI 1369

TP adjustment - MAM - why CUP method cannot be applied as the most appropriate method? - HELD THAT:- Since the facts of the instant case are identical to the facts for the A.Y. 2011- 12 and AY 2013-14, therefore, respectfully following the decision of the Tribunal in assessee's own case and in absence of any distinguishable features brought to our notice, we are of the opinion that CUP is the most appropriate method in the instant case which has been applied by the assessee for benchmarking the transactions for provision of consultancy services rendered. We hold and direct accordingly. Since this issue is decided in favour of the assessee.

Non-grant of mat credit under section 115JAA and short grant of tax deducted at source - As we deem it proper to restore this issue to the file of the AO with a direction to verify the record and give proper credit in respect of the same. Needless to say, AO shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. Grounds raised by the assessee are allowed for statistical purposes.
2020 (10) TMI 1368

Suit for declaration of title of the plaintiff and the second defendant to the suit property - seeking exemption to adduce evidence - HELD THAT:- The revision petitioner cannot seek exemption to adduce evidence due to his choice to examine his son. If exemption to appear and adduce evidence is granted to the defendant, it would imply that the plaintiff may not be in a position to invoke Section 114 illustration (g) of the Indian Evidence Act, best evidence could be shut.

In a litigious battle, if a party fails to produce best evidence, when he is in a position to tender it, other side is entitled to seek the court an adverse inference. The court cannot forfeit its power to draw adverse inference by its own orders.

This petition is partly allowed and only that portion of the impugned order in I.A. No. 3 of 2020 in O.S. No. 72 of 2013 on the file of the Additional District Munsif Court, Valliyur, which exempts the first defendant from tendering evidence is set aside.
2020 (10) TMI 1367

Transfer petition - seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand - HELD THAT:- The transfer power Under Section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.

While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the Petitioner in my assessment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can't also be overlooked that the Petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore, it is difficult to accept that justice for the Petitioner can only be ensured by transfer of three cases mentioned in these petitions.

When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this Court finds it difficult to accept that the cases are on account of journalistic activities of the Petitioner. In fact the credibility of the journalistic activity of the Petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, the prosecution in the concerned three cases can't prima facie be said to be on account of malicious prosecution.

These Transfer Petitions are dismissed.
2020 (10) TMI 1366

Pronunciation of final orders without a reasoned judgment - Deprivation from seeking further judicial redressal in the next tier of judicial scrutiny - HELD THAT:- A Constitution Bench of this Court as far back as in the year 1983 in the STATE OF PUNJAB VERSUS JAGDEV SINGH TALWANDI [1983 (12) TMI 332 - SUPREME COURT] drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment where it was held that If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.

It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per ANIL RAI VERSUS STATE OF BIHAR [2001 (8) TMI 1330 - SUPREME COURT] - The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.

The appeal is allowed.
2020 (10) TMI 1365

Grant of validity certificate in favour of the Petitioners, resultantly invalidating the tribe claim of the Petitioners - HELD THAT:- The Registrar of the Aurangabad Bench are called upon to verify the aforesaid fact and communicate to this Court forthwith as to why the order has not been uploaded. The Supreme Court Registry to send the message immediately and obtain the necessary copy of the order, if available.

List on 13th October, 2020.
2020 (10) TMI 1364

Exemption u/s 11 - whether proviso to section 2 (15) is not applicable in the present case? - HELD THAT:- As decided in own case [2020 (11) TMI 483 - KARNATAKA HIGH COURT] the proviso to section 2 (15) is not applicable in case of this assessee.

Depreciation claim - Second issue is also squarely covered in favour of the assessee by the tribunal order in assessee’s own case in which, the tribunal has followed a judgment of Hon’ble Supreme Court rendered in the case of CIT vs. Rajasthan and Gujarat Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] Hence, we decline to interfere in the order of CIT (A).

Appeal of the revenue is dismissed.
2020 (10) TMI 1363

Power of CIT(Appeals) to enhance the assessment - Power vested in the CIT (A) u/s 251(1)(a) - Tribunal holding that the CIT (Appeals) cannot enhance the assessment on a reference made by the AO especially when the provision of Section 251(1)(a) confers the power to enhance on the CIT(A) and there is no bar in the AO from reporting the shortcoming in the order passed for the purpose of enhancement - Revenue contended that the power of the CIT(A) u/s 251 is of very wide that in disposing of the appeal, his powers are co-equal to that of the Assessing Authority,and is bound to consider the request of the ITO to enhance the assessment and if he failed to do so without any reasonable cause, it is open to the Revenue to file a second appeal before the Tribunal from the order passed by the Commissioner of Income-Tax (Appeals) in appeal - HELD THAT:- The Commissioner of Income-tax (Appeals) is exercising a quasi-judicial function. He should have adverted to the request made by the Income-tax Officer in his letter dated February 2, 1983, and disposed of the matter fairly and reasonably. It was his statutory duty to do so. On the other hand, he failed in his duty and disposed of the appeal even without adverting to the said request made by the Income-tax Officer.

We are of the view that it is a patent jurisdictional error. CIT (Appeals) has abnegated in discharging the duty Imposed on him by law. Since the Revenue was prejudiced by the failure of the Commissioner of Income-tax (Appeals) to discharge his statutory duty aforesaid, it is open to the Revenue (Income tax Officer) to file an appeal from the order passed by the Commissioner of Income-tax (Appeals) and assail the same. Against the order of the Commissioner of Income-tax (Appeals), the appeal filed by the Revenue under Section 253(2) of the Income-tax Act is competent and maintainable.

As observed by us earlier, we do not propose to consider the first substantial question of law framed because the issue has become academic in the assessee’s case. Therefore, we leave the first substantial question of law open for consideration.

Allowability of contribution made towards superannuation fund - ITAT treated it as business expenditure and is to be allowed u/s 37 - whether Tribunal is proper especially when as per Section 36(1)(iv), the employer's contribution towards recognized provident fund or approved superannuation alone is to be allowed as a deduction subject to the conditions prescribed thereunder which is not the case on hand ? - HELD THAT:- Issue decided in favour of assessee as in the assessee’s own case [2020 (10) TMI 798 - MADRAS HIGH COURT], by common judgment dated 08.10.2020,
2020 (10) TMI 1362

Right of pre-emption in case of sale of immovable property - time limitation - whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time? - HELD THAT:- The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the Respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale - A reading of the Section 9 shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting Plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier.

It would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a Plaintiff every time there is a subsequent transaction or sale once the Plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated Under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right.

So far as the case of Kutina Bibi [1960 (7) TMI 68 - ASSAM HIGH COURT] is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the Plaintiff's right as a co-sharer had become disputed in absence of challenge to the previous transaction. It is opined that such a right is available once-whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of preemption in a subsequent transaction.

The judgments referred to by the Respondent of Bishan Singh [1958 (5) TMI 52 - SUPREME COURT] and Barasat Eye Hospital [2019 (10) TMI 1560 - SUPREME COURT] are only for the proposition that the right of pre-emption is a right of substitution-no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is 'only once'.

The right of pre-emption is only exercisable for the first time when the cause of such a right arises, in a situation where the Plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property.

Appeal allowed.
2020 (10) TMI 1361

Maintainability of SLP - writ petition has been decided in the meantime - HELD THAT:- Since the Special Leave Petition is rendered infructuous, it is dismissed as such. This would not preclude recourse being taken to the remedies available to any of the parties against the final judgment and order of the High Court.

The Special Leave Petition is dismissed as infructuous.
2020 (10) TMI 1360

Reopening of assessment u/s 147 - as per assessee notice was not properly served - service of notice u/s 148 issued through notice server, assessee refused to receive the notice, subsequently, notice was sent through speed post which was not received back - HELD THAT:- No infirmity in the order of the lower authorities in rejecting the contention of the assessee that notice was not properly served. The revenue has made three different attempts to serve the notice. Firstly, by notice server on 22.03.2007 which was not accepted by the assessee. This is not disputed by assessee. Secondly, notice was sent through speed post which is not received back by the AO. Thirdly through fixtures on 30.03.2007. Same is also not disputed by the assessee. There is no reason given to us that whether all the three actions of the ld AO were not correct. Accordingly, we dismissed ground No. 1 of the appeal.

Taxation of interest on enhanced compensation - assessee has not produced any evidence whether the interest on enhanced compensation is received u/s 34 or u/s 28 of the Land Acquisition Act - HELD THAT:- Interest u/s 28 is unlike interest u/s 34 is accretion to the value, hence, it is part of enhanced compensation whereas the interest u/s 34 of the Act is interest. As no information is available on record, we set aside the whole issue back to the file of the ld AO with a direction to the assessee to show that with reference to various order, under which section of the Land Acquisition Act interest is received by the assessee.

AO may examine the whole issue with respect to taxability of the same and decide it afresh. The assessee is directed to submit the complete information before the ld AO within 3 months from the date of this order and thereafter the issue may be decided on the merits of the case. Accordingly, ground No. 2 and 3 of the appeal are allowed with above direction.
2020 (10) TMI 1359

Reopening of assessment u/s 147 - legal necessity to issue notice u/s 143(2) - DR submitted that where the return of income has not been filed and the best judgment order has been U/s 144 of the Act, there is no legal necessity to issue notice U/s 143(2) - HELD THAT:- In the instant case, the Assessing officer has not taken cognizance of the return of income so filed by the assessee on 12.12.2018 stating that such a return of income has been filed beyond the stipulated time frame of thirty days as specified in the notice u/s 148 for filing such return of income. In our view, such a return of income even though filed belatedly would still qualify as return furnished under section 139 of the Act and should therefore be taken cognizance of by the Assessing officer.

Even where it is held that no return of income has been filed in response to notice u/s 148, the return of income so filed on 12.12.2018 shall be taken as return filed in response to notice u/s 142(1) dated 11.12.2018 and therefore, in either case, the return of income has to be taken cognizance of by the Assessing officer. Where the return of income has been filed u/s 139 or in response to notice u/s 142(1), where the Assessing officer finds that there are certain matters which require explanation by the assessee, then in such cases, he has to comply with the provisions of section 143(2).

The assessee by filing the return of income and not claiming the carry forward of losses pertaining to A.Y 2005-06 has admitted to the wrong claim made and assessed earlier. Thereafter, there assessment has been completed u/s 147 where the only finding of the A.O is that only losses for A.Y 2013-14, and not of any earlier years, can be carried forward accepting the very position taken by the assessee in the return so filed on 12.12.2018. Therefore, in the facts of the present case, where the return filed by the assessee has been accepted and the reassessment order has been passed u/s 147accepting the returned income and there is no variation or addition made by the Assessing officer to the returned income, we do not see any necessity for the Assessing Officer to call for the explanation from the assessee and for the purposes, issue notice u/s 143(2) of the Act.

Thus where the reassessment order has been passed u/s 147 accepting the returned income, we don’t see any infirmity in the order so passed in absence of notice u/s 143(2) of the Act as there is no legal necessity as so envisaged as applicable in the facts of the present case and the same is hereby affirmed. In the result, sole ground of appeal is dismissed.