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2014 (11) TMI 1275
TP Adjustment - ALP determination of international transaction - allocation of expenses - segment wise account rejected as assessee did not maintain segmental accounts contemporaneously - HELD THAT:- In our opinion the segment wise account submitted by the assessee could not be rejected unless any defect was pointed out in the segmental results shown by the assessee. Moreover, the activities relating to both these transactions are different activities as is observed from the functional analysis described in the above part of this order as one transaction is relating to communication network operation and engineering services and other transaction relates to provision of finance and accounts services, therefore, these transactions are to be evaluated separately for determination of ALP.
If the claim of the assessee is to be rejected then Revenue Authorities are bound to explain that why such claim of the assessee is required to be rejected. No such reason has been given except stating that either the segmental results are unaudited or they have been prepared later on or for the purpose of TP study.
Taking into account these facts and submissions which are supported by the case laws relied upon by Ld. AR, we are of the opinion that it would meet the interest of justice if the matter is restored back to the file of AO/TPO with a direction to re-determine the ALP of these international transaction separately after verifying the segmental results of the assessee. Needless to observe that in the whole process of re-determination of ALP with regard to impugned transactions, the assessee will be provided with reasonable opportunity of hearing and placing evidence on record to support its case.
After re-determination of ALP of the impugned international transaction in the manner described above, Ld. AO/TPO will give appropriate relief as per proviso to section 92C(2) as it is applicable for the year under consideration after giving the assessee a reasonable opportunity of hearing.
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2014 (11) TMI 1274
Disallowance u/s 14A r.w.r. 8D - Whether investment made in partnership firm does not represent “Investment”? - HELD THAT:- AO does not appear to have examined the application of the provisions of sec,. 14A by having regard to the accounts of the assessee. We notice that the assessing officer has asked the assessee to work out the disallowance.
Assessee excluded investment made in partnership firm as it does not represent “Investment”. AO did not examine the above said claim of the assessee and also failed to note the inconsistencies in working out the average value of investments.
All these discussions would show the half hearted approach adopted by the assessing officer and his carelessness in examining the workings furnished by the assessee vis-à-vis the accounts of the assessee company. We also find that the assessee has also failed to explain as to how the provisions of sec. 14A shall not apply to the share income from partnership firms, which consisted of 99.5% of its income.
The assessee has further canvassed the view that the provisions of sec. 14A r.w. Rule 8D should not be applied to Variable expenses, which consisted of expenses incurred directly on the projects undertaken by it. With regard to the Fixed/semi-variable expenses, the assessee submitted that the disallowance may be restricted to 5% of the said expenses. Though the assessee did not give any basis for adopting the above said rate of 5%, yet the Ld CIT(A) has accepted the same.
Both the tax authorities have addressed the issue of disallowance to be made u/s 14A of the Act from the point of view of “dividend income” only. Further the disallowance has been made with reference to Administrative expenses only. As noticed earlier, both the tax authorities have failed to make reference to the accounts of the assessee.Decided against revenue.
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2014 (11) TMI 1273
Grant of leave to defend the suit, conditional upon its depositing only the principal sum - appellant contends that the suit is based only on the loan and not on the cheques and bills of exchange admittedly drawn and accepted by the appellant - whether the loan in the present case falls within the ambit of sections 2(17) and (10) of the Bombay Money Lenders Act? - HELD THAT:- The appellant's contention that the suit is barred by the provisions of the Bombay Money Lenders Act is not well founded. Section 2(9) defines a loan to mean an advance at interest whether of money or in kind, but does not include a loan or advance of the nature stipulated in clauses (a) to (f2) thereof. The above suit is not hit by the Bombay Money Lenders Act in view of clause (f) of section 2(9) of the Bombay Money Lenders Act. In view of clause (f), the loans do not fall within the purview of the Act as they were advances made on the basis of the negotiable instrument as defined in the Negotiable Instruments Act, 1881 viz. the cheques and the bills of exchange.
In the present case, the loans were advanced by the respondents to the appellants on the basis of negotiable instruments other than promissory notes. This is clear from the facts and circumstances of this case especially the manner in which the amounts were advanced and cheques were drawn. The fact that the cheques were forwarded by the appellants to the respondents after the loans were advanced by RTGS transfers makes no difference. The amounts were advanced by the respondents to the appellants and the cheques and the bills of exchange were issued by the appellant to the respondents as a part of one composite agreement. In other words, this agreement was entered into at the same time. This is not a case where the amounts were first advanced and thereafter the parties agreed that the borrower would draw the cheques and bills of exchange and execute the said writings. The entire arrangement was agreed upon at the same time.
There is nothing on record that militates against this view. The appellant has not even pleaded anything to the contrary. It is not the appellant's case that the cheques and the bills of exchange were drawn and the writings were executed independent of the loan pursuant to any understanding arrived at subsequently. It follows therefore that the said loans were made on the basis of the said negotiable instrument viz. the cheques and the bills of exchange drawn by the appellants in favour of and payable to the respondents.
The mere fact that a negotiable instrument is handed over subsequent to the loan being disbursed makes no difference if the loan was made on the basis of the negotiable instrument. Where it is agreed as part of a composite agreement to advance a loan against a negotiable instrument covered by section 2(9)(f), it makes no difference that the negotiable instrument is handed over subsequently.
There is in fact no defence to the suit. Despite the same, the learned Judge has granted leave conditional upon the appellants depositing only the principal sum claimed. The appellant can, therefore, have no grievance against the said order - Appeal dismissed.
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2014 (11) TMI 1272
Disallowance of interest - assessee could not establish that advance was given for the purpose of the business even when it was paying interest on secured loan taken - CIT-A deleted the addition - HELD THAT:- The assessee was having interest free own funds more than interest free advances - In view of the various case laws relied upon by the ld. AR including the decision in the case of CIT vs. Reliance Utilities [2009 (1) TMI 4 - BOMBAY HIGH COURT] CIT (A) was justified in deleting the addition as investments would be out of the interest-free fund generated or available with the company, if the interest-free funds were sufficient to meet the investments - Decided in favour of assessee.
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2014 (11) TMI 1271
Non-compliance of Section 313 Code of Criminal Procedure - contention of the Appellant is that since the material evidence Ex-P12 and Ballistic Expert opinion was not put to him in his statement Under Section 313 Code of Criminal Procedure, it must be completely excluded from consideration and barring the same - whether non-compliance of the mandatory provisions of Section 313 Code of Criminal Procedure vitiates the trial and conviction of the Appellant? - HELD THAT:- There are two kinds of examination Under Section 313 Code of Criminal Procedure. The first Under Section 313(1)(a) Code of Criminal Procedure relates to any stage of the inquiry or trial; while the second Under Section 313(1)(b) Code of Criminal Procedure takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory.
The object of Section 313(1)(b) Code of Criminal Procedure is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him - The real importance of Section 313 Code of Criminal Procedure lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
Undoubtedly, the importance of a statement Under Section 313 Code of Criminal Procedure, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 Code of Criminal Procedure statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all - Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure, it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal.
This Court has widened the scope of the provisions concerning the examination of the accused after closing prosecution evidence and the explanation offered by the counsel of the accused at the appeal stage was held to be a sufficient substitute for the answers given by the accused himself.
If all relevant questions were not put to accused by the trial court as mandated Under Section 313 Code of Criminal Procedure and where the accused has also shown that prejudice has been caused to him or where prejudice is implicit, whether the appellate court is having the power to remand the case for re-decision from the stage of recording of statement Under Section 313 Code of Criminal Procedure Section 386 Code of Criminal Procedure deals with power of the appellate court? - HELD THAT:- As per Sub-clause (b)(i) of Section 386 Code of Criminal Procedure, the appellate court is having power to order retrial of the case by a court of competent jurisdiction subordinate to such appellate court. Hence, if all the relevant questions were not put to accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again Under Section 313 Code of Criminal Procedure and may direct remanding the case again for re-trial of the case from that stage of recording of statement Under Section 313 Code of Criminal Procedure and the same cannot be said to be amounting to filling up lacuna in the prosecution case.
In ASRAF ALI VERSUS STATE OF ASSAM [2008 (7) TMI 1081 - SUPREME COURT], this Court has examined the scope and object of examination of accused Under Section 313 Code of Criminal Procedure and in para (24) it was observed that in certain cases when there is perfunctory examination Under Section 313 of the Code, the matter could be remitted to the trial court with a direction to retry from the stage at which the prosecution was closed.
In GANESHMAL JASHRAJ VERSUS GOVERNMENT OF GUJARAT AND ORS. [1979 (10) TMI 232 - SUPREME COURT], after closure of evidence of the prosecution and examination of accused Under Section 313 Code of Criminal Procedure was completed, the accused admitted his guilt presumably as a result of plea bargaining and the accused was convicted. Pointing out that the approach of the trial court was influenced by the admission of guilt made by the accused and that conviction of the accused cannot be sustained, this Court has remanded case to trial court to proceed afresh from the stage of examination Under Section 313 Code of Criminal Procedure.
The objection as to the defective 313 Code of Criminal Procedure statement has not been raised in the trial court or in the High Court and the omission to put the question Under Section 313 Code of Criminal Procedure, and prejudice caused to the accused is raised before this Court for the first time. It was brought to our notice that the Appellant is in custody for about eight years. While the right of the accused to speedy trial is a valuable one, Court has to subserve the interest of justice keeping in view the right of the victim's family and the society at large.
The accused is not entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure We agree to some extent that the Appellant is prejudiced on account of omission to put the question as to the opinion of Ballistic Expert (Ex-P12) which was relied upon by the trial court as well as by the High Court. Trial court should have been more careful in framing the questions and in ensuring that all material evidence and incriminating circumstances were put to the accused. However, omission on the part of the Court to put questions Under Section 313 Code of Criminal Procedure cannot enure to the benefit of the accused.
The matter is remitted back to the trial court for proceeding with the matter afresh from the stage of recording statement of the accused Under Section 313 Code of Criminal Procedure The trial court shall examine the accused afresh Under Section 313 Code of Criminal Procedure - appeal disposed off.
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2014 (11) TMI 1270
Default in payment of Central Excise duty beyond the period prescribed under Rule 8(3A) of Central Excise Rules, 2002 - liability of the appellants to pay the duty in cash but the appellants paid by utilizing CENVAT credit - HELD THAT:- The issue is no longer res integra and this Tribunal in the case of SOLAR CHEMFERTS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2011 (6) TMI 640 - CESTAT, MUMBAI] has already held that in such cases of default, it is not necessary for the appellants to deposit the entire amount utilized as CENVAT credit in cash but it is sufficient if the interest is paid.
The learned counsel agrees to deposit the interest and penalty which may be imposed by this Tribunal. Accordingly, the appellant is directed to calculate the interest and pay the same and also penalty is reduced to Rs. 5,000/-.
Appeal allowed in part.
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2014 (11) TMI 1269
Violation of principles of natural justice (Audi alteram partem) - Direction u/s 26(1) of the Competition Act, 2002 for investigation into the allegations made by the informants i.e., respondent Nos.1 and 2 herein, and for submission of report - whether opinion formed by the Commission with regard to the existence of a prima facie case, to direct the Director-General to cause an investigation into the matter, calls for interference?
HELD THAT:- The Commission having deliberated, found that there exits a prima facie case and directed the investigation by the Director- General. The finding in Annexure-A being only for the limited purpose of directing investigation into the allegations made in Annexure-C, by the Director-General, shall have no bearing either on the investigator or even on the Commission, at a subsequent stage. When once report of investigation is received, the matter shall have to proceed in accordance with Sub-sections (4) to (8) of S.26 of the Act. Annexure-A having made reference to certain aspects, cannot be said to be perverse or is without any basis and thus, arbitrary to warrant interference under Article 226 of the Constitution.
Non providing of opportunity of hearing while issuing the direction - Principles of natural justice - HELD THAT:- The points raised for consideration has no merit and should fail.
Since the petitioner has further opportunity to raise its objections as against the said report before the Commission, order passed on 23.09.2014, on the memo filed and submissions made by Sri Krishna S.Dixit, that the report dated 30.04.2013 of respondent No.9 shall be kept in abeyance and not to act upon the same, until further orders, is hereby recalled.
Both the legal points raised by the petitioner are covered by the Judgment referred to hereinbefore, this writ petition being devoid of merit is dismissed. Liberty is reserved to the petitioner to file its objections to the report dated 26.04.2013, in view of Sub-section(6) of S.26 of the Act.
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2014 (11) TMI 1268
Allowability of prior period expenses - recompute the loss for assessment year 2006-07, as these were not allowable - HELD THAT:- CIT(A) examined these facts and has held that prior period expenses are below the line adjustment and are carried to balance sheet but not claimed for income-tax purpose. He accordingly directed the Assessing Officer to verify the same and recompute the loss. Though the Revenue has challenged the order of the ld. CIT(A), but could not point out any infirmity therein, as the assessee has not included the prior period expenses in the computation of income. Therefore, there is no question of disallowance. He, however, referred the matter to the A.O. for re-computation of loss after verification. Therefore, we find no infirmity in the order of the ld. CIT(A) and we accordingly confirm the same.
Netting of prior period expenses and prior period income - Disallowance be restricted to the net prior period expenses debited to the profit and loss account - HELD THAT:- Revenue has preferred an appeal before the Tribunal with the submission that netting between prior period expenses and prior period income may be permissible, but the net prior period expenses cannot be allowed against current income of the impugned financial year. Therefore, disallowance be restricted to the net prior period expenses debited to the profit and loss account. To this effect, the ld. counsel for the assessee has no objection.
Assessee has further submitted that the entire prior period expenses cannot be disallowed, as it can be set off against the prior period income. If any disallowance is required to be made, it can only be restricted to net prior period expenses debited to the profit and loss account of the current year unless and until it is crystalised in the current year. In this regard, no direction was made by the ld. CIT(A) and the AO has also not looked into this aspect of the matter. We accordingly modify the order of the ld. CIT(A) and restore the matter to the AO with a direction to make necessary verification and if any disallowance is required to be made, it can only be made with respect to the net prior period expenses debited to the profit and loss account of the current year, if it is not crystalised during the impugned financial year.
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2014 (11) TMI 1267
Levy of penalty - evasion of entry tax - bringing the scrap from out side the State of Punjab from secret passages in order to avoid the payment of tax - offence under Sections 420/120-B IPC and Section 4 of the Punjab Tax Entry of Goods into Local Areas Act, 2000 - HELD THAT:- A perusal of sub Section (7) (a) of Section 51 of the VAT Act lays down the provisions for penalty of 50% of the value of the goods if the vehicle is going without any documents. Under Section 51 (4) of the Act, there is a provision of imposition of penalty of 50% of the value of the goods involved if the driver has failed to deliver within forty eight hours the transit receipt to the Officer Incharge of the check post or information Collection Centre. Sub Section (7) (b) of Section 51 of the VAT Act makes out the provisions of penalty when the vehicle is going without any proper or genuine documents to be 30% of the value of the goods. Provisions under the VAT Act provide for mandatory penalty.
The provisions under Prevention of Corruption Act, 1988 came up for consideration before the Supreme Court in Dilawar Singh's case [2005 (11) TMI 502 - SUPREME COURT] and it was held that a co-accused cannot be summoned under Section 319 Cr.P.C as the Prevention of Corruption Act, 1988 was a special Act.
In the present case, allegations in the FIR is that petitioner had made an attempt by deleting data from pan driver to conceal the total weight in the vehicle so as to evade imposition of VAT Act. The provisions in the VAT Act are sufficient and equipped to deal with the matters where an attempt is made to evade the tax. Thus, the registration of the FIR in such like matters is totally an abuse of process of law.
Petition allowed.
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2014 (11) TMI 1266
Claim for deduction u/s 80IA(4) - HELD THAT:- The Tribunal vide its order [2014 (7) TMI 424 - ITAT MUMBAI] after following the decision of Hon’ble Bombay High Court in the case of CIT vs. ABG Heavy Industries Ltd. [2010 (2) TMI 108 - BOMBAY HIGH COURT] held that the assessee was entitled for claim of deduction u/s 80IA(4) of the Act.
Disallowance u/s 14A - HELD THAT:- Hon’ble jurisdictional High Court in the case of CIT vs. Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] held that if there are funds available, both interest free and overdraft/loans taken, then presumption would arise that investments would be out of the interest free fund generated or available with the company, if, the interest free funds were sufficient to meet the investments. Recently, the Hon’ble Bombay High Court again followed the same principle in the case of HDFC [2014 (8) TMI 119 - BOMBAY HIGH COURT] Applying the proposition of law laid down in the judicial pronouncements, we found that in the instant case case profit was much more than the investment in the joint venture company therefore the disallowance made by the A. O. by invoking the provisions of section 14A of the Act was not justified. Accordingly the A. O. directed to delete the same.
Addition u/s 36(1)(iii) - HELD THAT:- We found that the cash profit of the assessee company that have been earned during the year as reduced by the amount of investment in joint venture company, was in excess to the monies advanced to Chafal as on the cut-off date, therefore it can be safely presumed that advance have been given against profits of the year and not out of interest bearing funds. This view has been supported by the decision of Hon’ble Bombay High Court in the case of Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT]. Fact that no further advance was given during the year and no disallowance was made in the preceding year also supports the case of the assessee. Accordingly we do not find any merit in the action of the A. O. in disallowing the interest u/s 36(1)(iii) of the Act. Appeal of the assessee is allowed
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2014 (11) TMI 1265
Addition u/s 68 - funds in the form of share capital came from persons other than the company - HELD THAT:- The issue No.1 is already answered by this Court in favour of the assessee and against the revenue in the decision rendered in [2010 (8) TMI 1135 - GUJARAT HIGH COURT] as relied upon by the learned advocate for the appellant held that as having traced out the source of funds to specific persons who had invested the same in shares of the assessee company, it was open for the Assessing Officer to proceed against the said persons. The funds not having emanated from the assessee company, there was no warrant for making addition of the said amount as undisclosed income under section 68 of the Act in its hands. In the circumstances, the Tribunal was justified in deleting the addition.The issue No.1 is already answered by this Court in favour of the assessee and against the revenue.
Charging of interest u/s 217 when the assessment under Section 143(3) read with Section 147 has to be treated as an original assessment - ITAT deleted the addition - HELD THAT:- Issue concluded by the decision of the Punjab and Haryana High Court in the case of Darshan Lal Gulati [2008 (3) TMI 683 - PUNJAB AND HARYANA HIGH COURT] wherein, it is held that in case an assessment had been framed in response to original return filed by assessee, first or initial assessment made by Assessing Officer would be treated as regular assessment and in that situation, assessment in pursuance to reassessment proceedings could not be termed as ‘first assessment’ so as to come within the meaning of expression ‘regular assessment’ and, accordingly interest under Section 217 could not have been charged. Thus, the question No.2 is also answered in favour of the assessee and against the revenue.
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2014 (11) TMI 1264
Penalty u/s 271B - not maintaining the books of account in respect of investments made - sales of Future and Options had been made by the assessee, which were business receipts but not included and shown by the assessee and no tax audit report had been submitted by the assessee of these business receipts - default u/s 44AB - HELD THAT:- As per section 44AB the assessee is required to get his accounts audited if the particular criteria as prescribed in the section is fulfilled. Once the accounts are audited u/s 44AB, in any view of the matter, merely because a particular item of income has not been included in the said tax audit report, it cannot be held that there was default of not getting the accounts audited.
In the present case, admittedly the assessee did not claim loss on share transactions in its return of income on account of bona fide belief that the transactions with India Bulls Securities Ltd. were investment transactions. The assessee was under bona fide belief that it was not in share trading business because his main business was advertising etc., as is evident from the tax audit report. Under such circumstances, we are of the opinion that the penalty is not exigible in the present set of facts. Accordingly, we cancel the penalty levied u/s 271B. - Decided in favour of assessee.
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2014 (11) TMI 1263
Dishonor of Cheque - insufficiency of funds - Seeking leave to appeal - acquittal of the accused - issuance of summon to face the trial for the commission of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 - whether the trial Court has committed such jurisdictional error to acquit the respondent and there are substantial and compelling reasons to set aside the judgment of acquittal or not in this respect?
HELD THAT:- The complainant was only competent to advance agricultural loan if he holds the pointed valid licence/registration certificate. Having a money lender's license is a condition precedent to advance the loan to the Farmers. The advancement of loan by the complainant to the respondent without any valid licence is not only illegal, but, at the same time, he can be prosecuted u/s 4 of the Money- lender's Act as well.
Once it is proved and the entire facts that the alleged Bahi entries are not negotiable instruments, which can be enforced, not alone sufficient to charge any person with liability, sequelly, the complainant was legally debarred to recover the alleged loan, as envisaged under the indicated provisions of the Money lender's Act and in view of such legal disabilities attached to the complaint, as discussed here-in-above, are put together, then, in that eventuality, to my mind, the conclusion is irresistible and inescapable that he (complainant) cannot adhere to initiate the criminal prosecution against the respondent within the meaning and in the garb of complaint u/s 138 of the NI Act.
Meaning thereby, the trial Magistrate has examined the matter in the right perspective and recorded the cogent grounds in this behalf. The learned counsel for complainant did not point out any material, much less cogent, so as to warrant any interference in the present matter. Such articulated impugned judgment of acquittal, containing valid reasons, cannot possibly be interfered with by this Court, in exercise of limited jurisdiction u/s 378(4) Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction - Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for complainant, so, the impugned judgment of acquittal deserves to be and is hereby maintained in the obtaining circumstances of the case.
There is no merit, therefore, the instant petition for leave to appeal is hereby dismissed as such.
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2014 (11) TMI 1262
Deduction u/s.80IA - operating of Container Freight Station (CFS) - scope of term infrastructure facilities - As per AO assessee company has not entered into an agreement with the Central or State Govt. or a local authority or any other statutory body for developing or operating and maintaining or developing, operating and maintaining a new infrastructure facility making it ineligible for availing the benefit u/s. 80IA(4) - CIT-A allowed the deduction - HELD THAT:- Respectfully following the decision of the Tribunal in assessee’s own case in the immediately preceding assessment year [2012 (8) TMI 893 - ITAT MUMBAI] wherein held ICD is not a port but It Is an inland port. The case of CFS is similarly situated In the sense that both carry out similar functions. i.e.. warehousing, customs clearance and transport of goods from. Its location to the seaports and vice versa by railway or by trucks in containers. Thus, the issue is no longer res integra. Respectfully following this decision, it Is held that a CFS is an Inland port whose Income is entitled to deduction under s. 80-IA(4).
As in absence of any contrary material brought to our notice by Ld. Departmental Representative , we find no infirmity in the order of the CIT(A) allowing the claim of the assessee. Accordingly, the order of the CIT(A) is upheld and the grounds raised by the Revenue are dismissed.
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2014 (11) TMI 1261
Dishonor of Cheque - legally enforceable debt or not - rejection of petitioner's application for sending certain documents tendered by him in evidence, to the handwriting expert for examination and his opinion - section 138 of NI Act - HELD THAT:- Here was a case where the accused had come with a specific plea that he had already paid the amounts due and payable by him to the complainant, and as such, the cheque could not have been said to have been issued in discharge of any legally enforceable debt, or other liability. He had categorically stated that the complainant had acknowledged the receipt of the said amounts. It is shocking that in spite of this categorical stand taken by the accused, neither the Magistrate, nor the learned Addl. Sessions Judge, felt the necessity of giving an opportunity to the accused to adduce evidence in support of his contention.
It goes without saying that the accused is entitled to have an opportunity to adduce evidence in defence. In fact, if the accused is denied an opportunity to adduce evidence, the trial would be vitiated - The approach of the Magistrate and also that of the Addl. Sessions Judge was totally erroneous and contrary to the well settled principles of law. Denying the accused an opportunity to establish the stand taken by him, would be totally unfair and unjust - It was a simple case where the accused wanted to adduce defence evidence. It was nobody's case that the evidence intended to be adduced, was irrelevant or inadmissible. When that was so, it was not open for the Magistrate to say that it was not necessary for the accused to adduce that evidence.
The impugned orders are patently illegal and contrary to the settled principles of criminal jurisprudence. The principle that defence evidence (which is not irrelevant or inadmissible) can be prevented from being adduced only if the Court considers that the prayer to adduce such evidence, is made for the purpose of vexation, or delay, or for defeating the ends of justice, has been recognized by the Code of Criminal Procedure - Petition allowed.
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2014 (11) TMI 1260
Non-fulfilment of export obligation - failure to furnish the bank guarantee - Section 4I of the Imports and Exports (Control) Act, 1947 read with Section 20(2) of the Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- Indisputably, the bank guarantee was furnished by the petitioner prior to the order dated 13.10.1997 passed by the Appellate Authority and as such the said order is erroneous.
The learned counsel for the respondent argued that the petition is barred by delay and latches as the petitioner has approached this Court after over 15 years. However, in the peculiar facts and circumstances of this case, where there is no evidence that the order dated 13.10.1997 was served on the petitioner and it is clear - by the fact that the bank guarantee had been kept alive by the petitioner - that the petitioner continued in its belief that its appeal was pending, the delay is liable to be condoned.
It is deemed appropriate that the order dated 13.10.1997 of the Appellate Authority be set aside and the matter be remanded to the Appellate Authority to decide it afresh in accordance with law - petition disposed off.
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2014 (11) TMI 1259
Conviction of Appellant/1st accused Under Section 498A Indian Penal Code - award of punishment/sentences - whether the sentence can be made to run concurrently, instead of running consecutively? - HELD THAT:- Section 31 Code of Criminal Procedure relates to the quantum of punishment that the court has jurisdiction to pass where the accused is convicted for two or more offences at one trial.
Section 31(1) Code of Criminal Procedure enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the Courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the Court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31(1) Code of Criminal Procedure There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, Court has to direct those sentences to run concurrently.
When the prosecution is based on single transaction where it constitutes two or more offences, sentences are to run concurrently. Imposing separate sentences, when the acts constituting different offences form part of the single transaction is not justified. So far as the benefit available to the accused to have the sentences to run concurrently of several offences based on single transaction, in VK. BANSAL VERSUS STATE OF HARYANA AND OTHERS [2013 (8) TMI 488 - SUPREME COURT], in which one of us (Justice T.S. Thakur) was a member, this Court held has held that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.
Thus, Section 31 Code of Criminal Procedure leaves full discretion with the Court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances - there are no reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. of course, if the Court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the Court may direct.
The trial court directed the sentences imposed on the Appellant/accused Under Sections 498A and 306 Indian Penal Code to run consecutively, which was affirmed by the High Court. When the trial court declines to exercise its discretion Under Section 31 Code of Criminal Procedure in issuing direction for concurrent running of sentences, normally the appellate court will not interfere, unless the refusal to exercise such discretion is shown to be arbitrary or unreasonable. When the trial court as well as the appellate court declined to exercise their discretion, normally we would have refrained from interfering with such direction of the courts for consecutive running of sentences. But in the facts and circumstances of the present case, the sentences imposed on the Appellant could be ordered to be run concurrently.
Appeal allowed in part.
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2014 (11) TMI 1258
Deduction u/s.80IB(10) - AO observed that commercial area exceeded the prescribed percentage of 10 of the total construction area, therefore, the assessee is not eligible for deduction u/s.80IB(10) - HELD THAT:- AO has carried out verification of these two flats and found that Flat No.103 was sold by the assessee company to Shri Dharmendra Dhade vide agreement dated 22.06.2000 and Flat No.104 was sold by assessee company to Shri Suresh Kadam. vide agreement dated 4.7.2000. Subsequently, vide agreement dated 3.3.2005 flat No.103 was sold by Dharmendra Dhade to Smt. Pratima Suresh Kadam, wife of Shri Suresh Kadam.
AO also reported that as per floor plan these two flats were separate from each other by a brick wall and also had two separate entrances and separate kitchens. We found that both the residential units independently capable of being use of stand alone basis, and area of each unit was within 1000 sq.ft.. With regard to the commercial area the CIT(A) also recorded a finding to the effect that in terms of decision of jurisdictional High Court, there was no condition of 1000 sq.ft. for shops and this condition was only for residential unit.
CIT(A) also recorded a categorical finding that the project was commenced on 9-3-2000 and a completion certificate was also issued on 23-1-2003. AO has included the commercial area at 6% on the basis of the certificate of architect and occupancy certificate after inclusion of club house.
AO has also computed the area which neither form part of residential area nor of built-up commercial area, accordingly, following the decision of case of Brahma Associates[ 2011 (2) TMI 373 - BOMBAY HIGH COURT] wherein as held that deduction should not be denied to projects which include commercial area when the project is approved by the local authority, even where commercial area exceeds 10%. After relying on various judicial decision of coordinate benches of the Tribunal, the CIT(A) has followed the decision of the Hon’ble High Court in the case of Brahma Associates - Decided against revenue.
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2014 (11) TMI 1257
Notice in name of the transferor or amalgamating company - corporate death of an entity upon amalgamation - Curable defect u/s 292B - HELD THAT:- These appeals by the Revenue have to be dismissed as the issue is covered by decision of this Court in Spice Entertainment Ltd. vs. Commissioner of Income Tax [2011 (8) TMI 544 - DELHI HIGH COURT]
Our attention is also drawn to another decision in Commissioner of Income Tax-III vs. Dimension Apparels Pvt. Ltd[2014 (11) TMI 181 - DELHI HIGH COURT]
It is stated that Dimension Apparels Pvt. Ltd. is a sister concern of the respondent assessee in the present appeals. What is noticeable is that during the course of block assessment proceedings, it was pointed out to the Assessing Officer that the respondent assessee has merged and was no longer in existence but the AO did not take remedial and corrective steps.
In view of authoritative pronouncement of this Court in the case of Dimension Apparels Pvt. Ltd. (supra), the appeals have no merit and are accordingly dismissed.
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2014 (11) TMI 1256
Recovery of electricity charges - arguments advanced by respondent is that on one hand petitioner has not installed any meter to record consumption in auxiliaries but at the same time has claimed that for computation of auxiliaries consumption the total load of 462 KW should be taken into consideration although part of this load was also being used in sugar manufacturing process by the petitioner - HELD THAT:- The factual controversy on record seems to involve mixed question of fact and law. Power of appellate Court or the Civil Court is much wider than the power of this Court available under Article 226/227 of the Constitution of India in DWARKA PRASAD AGARWAL (D) BY LRS. AND ANR. VERSUS BD. AGARWAL, RAMESH CHANDRA AGARWAL AND ORS. [2003 (7) TMI 481 - SUPREME COURT] and DIPAK CHANDRA RUHIDAS VERSUS CHANDAN KUMAR SARKAR [2003 (7) TMI 691 - SUPREME COURT].
It shall not be possible for this Court while exercising power conferred by Article 226 of the Constitution of India to resolve the factual controversy on record. Whether the assessment order has been passed imposing duty is based on correct appreciation of facts and material on record or not is a disputed question of fact. Further whether petitioner has installed meter or it was possible to find out the actual consumption by the auxiliaries is also a disputed question of fact. Appellate authority has got wider power then this Court to enter into factual controversy on record and also to decide question of fact and law - It is well-settled proposition of law that where mixed question of fact and law are involved ordinarily this Court should refer the matter to statutory authority.
The petitioner to prefer an appeal within a month from today before the appellate authority under Rule 13A of the U.P. Electricity Duty Rules 1952 - Petition disposed off.
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