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Showing 21 to 40 of 1764 Records
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2016 (11) TMI 1749
Validity of order of punishment of compulsory retirement - Rule 14 of CCS (CCA) Rules, 1965 - Seeking grant of medical leave with permission to leave the station - principles of natural justice - HELD THAT:- Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ Petitioner with major penalty which is a clear violation of principle of natural justice.
Before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ Petitioner on the inquiry report. The writ Petitioner in his representation to the inquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules.
There was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ Petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report - the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained.
Thus, present is the case where the High Court while quashing the punishment order as well as Appellate order ought to have permitted the Disciplinary Authority to have proceeded with the inquiry from the stage in which fault was noticed i.e. the Stage Under Rule 15 of Rules - sufficient time has elapsed during the pendency of the writ petition before learned Single Judge, Division Bench and before this Court, however, in view of the interim order passed by this Court dated 31.08.2015 no further steps have been taken regarding implementation of the order of the High Court. The ends of justice be served in disposing of this appeal by fixing a time frame for completing the proceeding from the stage of Rule 15.
Appeal allowed in part.
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2016 (11) TMI 1748
TP Adjustment - comparables selection - functinall similarity - HELD THAT:- Bodhtree Consulting Ltd. - Since the Tribunal has examined the profile and datas of Bodhtree Consulting Ltd. and has come to the conclusion that this company cannot be taken as good comparable for computing the ALP, we find no justification in re-examining the issue again. Accordingly, exclusion of Bodhtree Consulting Ltd. from the list of comparables upheld.
Exclusion of this company i.e., Exensys Software Solution Ltd. from the list of comparables considering the fact that unusual profits arose out of an extra ordinary event of amalgamation.
Syassaris Software P. Ltd. engages itself in products and services as well as software training, it cannot be considered as a comparable of the Appellant.
Thirdware Solutions Ltd. be excluded as information furnished by the said company that though the said company is also into product development, there are no software products that the company invoiced during the relevant financial year and the financial results are in respect of services only. Thus, it is clear that there is no sale of software products during the year but the said company might have incurred expenditure towards the development of the software products.
Geometric Software Solutions Company Ltd. issue should also go back to the TPO to adjudicate the justification of its exclusion on the point of RPT filter.
Tata Elxsi Ltd. cannot be included in the list of comparables as it is functionally different and has incomparable size to that of the assessee.
iGate Global Solutions Ltd., Flextronics Software Systems Ltd., L&T Infotech Ltd., Satyam Computer Services Ltd. and Infosys Technologies Ltd., be excluded as their turnover exceeds 10 times of the turnover of the assessee.
Four Soft Ltd. - Tribunal in the aforesaid order has applied RPT filter and excluded this company from the list of comparables, but RPT of this company was not mentioned in the order. Therefore, in the absence of complete details, it is not proper to follow the order of Tribunal blindly. We therefore set aside this issue to the file of TPO/AO to examine the justification of its inclusion/exclusion by applying the RPT filter in the light of available datas of this company.
VJIL Consulting Ltd. - In the absence of clear details, the TPO rejected this comparable. Now the details of this comparable are available and the CIT(A) has included the same in the list of comparables without confronting the audit report and datas to the TPO. We therefore find it proper to remit the matter to the TPO to reconsider the inclusion of this comparable in the list of comparables in the light of the order of the Tribunal in the case of Qualcomm India Pvt. Ltd. (supra). Accordingly adjudication of this comparable is restored to the TPO.
Melstar Information Technology Ltd - We restore the matter to the file of AO/TPO to examine the claim of inclusion of this comparable in the light of annual report and other details.
Deduction u/s. 10A in respect of Unit–II custom bonding licenses were obtained only on 29.1.2002. - CIT(A) allowed deduction - HELD THAT:- We have carefully examined the order of CIT(Appeals) on this issue and we find that the CIT(Appeals) has examined this issue in the light of various judicial pronouncements of different Benches of the Tribunal and finally having relied upon the order of Tribunal in assessee’s own case for the AYs 2002-03 to 2004-05, the CIT(Appeals) has held that the company is eligible to claim deduction u/s. 10A in respect of Lara Unit income and allowed the relief. Since the CIT(Appeals) has decided the issue following the order of Tribunal which was later on confirmed by the jurisdictional High Court [2014 (11) TMI 1277 - KARNATAKA HIGH COURT] we find no infirmity in the order of CIT(Appeals), accordingly we confirm the same.
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2016 (11) TMI 1747
Confiscation of the iron ore consignments - imposition of redemption fine under Section 25 of the Customs Act, 1962 - penalties under Section 114(i) ibid - HELD THAT:- The Board vide Circular No. 4/2012-Cus. dated 17-2-2012, in the wake of several references received, inter alia, clarified In light of the observation by the Apex Court that export duty is chargeable according to Fe contents, and to maintain uniformity all over the customs houses, it is clarified that for the purpose of charging of export duty the assessment of Iron ore for determination of Fe contents shall be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents.
In the light of the Board's Circular, the issue now stands gone in favour of the appellant - The impugned order is not sustainable and liable to be set aside - Appeal allowed.
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2016 (11) TMI 1746
Refund claim - confirmation of the adjudication order without appreciating the difficulties of the appellant - Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- The matters are remanded to learned adjudicating authority to grant fair opportunity of hearing to the appellant for pleading both on facts and law as well as evidence. Considering the same, the authority shall resolve the dispute at the grass root.
Appeal remanded to learned adjudicating authority.
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2016 (11) TMI 1745
Suspension order - deemed suspension - respondent would submit that as a criminal case is pending against the petitioner, the suspension is a deemed suspension and therefore, that order cannot be challenged in this writ petition - HELD THAT:- In the case of AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT], the Supreme Court has come down heavily on this type of provisions which allow the competent authorities to extend the period of suspension for indefinite periods after periodical reviews. In the said case, Ajay Kumar Choudhary, the appellant had initially been suspended by the Suspension Order dated 30.9.2011. This suspension was extended on 28.12.2011 for a further period of 180 days. Then, with effect from 26.6.2012 the suspension was extended for another period of 180 days. Thereafter, the third extension of his suspension was ordered on 21.12.2012, but for a period of 90 days. It came to be followed by the fourth suspension for yet another period of 90 days with effect from 22.3.2013. Thus, he continued to be under suspension continuously from 30.09.2011.
The order of suspension dated 11.09.2014 is hereby revoked and the respondent is directed to post the petitioner in any one of the non-sensitive posts. The respondent is also directed to conclude the enquiry within a period of four months from the date of receipt of a copy of this order. The enquiry shall proceed dehors the pendency of the criminal case.
Petition allowed.
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2016 (11) TMI 1744
Income taxable in India - sum received by the assessee from the Indian customers - to be taxed as ‘royalty’ in India or not? - assessee company is engaged in the business of providing international communication network connectivity/ facility to various telecom operators around the world and earned revenue from the Indian customers, mainly from providing the “Voice Services” outside India - as per AO assessee not mainly providing standard facility but it is actively providing the usage of its typical hardware and software proprietary product to facilitate and leverage the core business of its customers. Thus, the usage of such facilities amounts to usage of actual proprietary rights - HELD THAT:- As decided in assessee own case [2016 (4) TMI 520 - ITAT MUMBAI] in the AY 2009-10 merely because the provision of the service may require technical input by the person providing the service, it cannot be said that technical knowledge, skills, etc. are made available to the person purchasing the service. As to what are the connotations of 'making the technology available to the recipient of technical services', as is appropriately summed up in protocol to Indo-US DTAA, "generally speaking, technology will be considered 'made available' when the person acquiring the service is enabled to apply the technology." In the case before us, no services are made available in the sense that the recipient of service is enabled to apply the technology, and do the same work without recourse to the service provider. There is no transfer of technology here, and in that sense technical services are not made available.
The authorities below were in error in holding that the receipts from Indian entities on account of connectivity charges, are taxable in India. We direct the Assessing Officer to delete the same - Decided in favour of assessee.
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2016 (11) TMI 1743
Maintainability of petition - defects in the petition - HELD THAT:- Four weeks' time is granted to the learned counsel for the petitioner to cure the defects as pointed out by the Registry, failing which, the Special Leave Petition shall stand dismissed for non-compliance without further reference to the Court.
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2016 (11) TMI 1742
Determination of quantum of suppressed production / sale of TMT bars - estimating gross profit @ 4% on suppressed sale - HELD THAT:- As in the absence of any evidence collected by the AO of alleged removal of goods without payment of Excise duty, merely on the basis of estimation of alleged suppressed production in earlier years, there is no merit in making any addition in the hands of assessee.
We delete addition made in the hands of assessee by the CIT(A) to the extent of 4% of the said alleged production. Accordingly, ground of appeal raised by the assessee against confirming the addition made on account of suppression of production by applying GP rate of 4% on the alleged production of sale are allowed. Further, the ground of appeal raised by the Revenue against the order of CIT(A) in quantifying the suppressed production @ 4% and deleting the addition of working capital is dismissed.
Whether any further expenses on account of manufacturing and administration are to be allowed against unaccounted production worked out? - There is no merit in the ground of appeal raised by the Revenue in this regard as no addition on estimate basis is upheld in the hands of assessee. The ground of appeal No.2 raised by the Revenue is thus, rejected.
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2016 (11) TMI 1741
Validity of assessment u/s 153A - incriminating material was found or not? - HELD THAT:- We find from the copy of the Panchnama that lot of loose papers marked as per Bundle No.1 were found from the premises of the assessee. Apart from the above a pendrive was also found. Therefore, it cannot be said that no incriminating documents were found during the course of search.
Assessee also could not justify that no incriminating documents were found. Under these circumstances, we find no merit in the additional ground raised by the assessee. Accordingly, the additional ground raised by the assessee is dismissed.
Validity of the assessment order passed u/s.153A - period of limitation - HELD THAT:- Assessee has filed return in response to notice u/s.153A . He has also given a finding that the order has been made prior to the end of 21 months period as envisaged in section 153(1)(a) of the I.T. Act. The assessee has failed to demonstrate during the appeal proceedings that the said assessment order has not been made prior to 30-12-2011. No concrete evidence in this regard was produced before the CIT(A) to justify that the despatch of the order have been made after 30-12-2011. Nothing was brought before us to take a contrary view than the view taken by the Ld.CIT(A) while dismissing the ground raised by the assessee on this issue. Under these circumstances we find no merit in the above ground raised by the assessee.
Undisclosed income of the assessee - unaccounted generation of cash - reliance on statement as recorded u/s. 132(4) of C&F Agent - element of threat or coercion while recording the statement u/s. 132(4) - as argued denial of principles of natural justice as the copy of the statement u/s.132(4) recorded of Shri Sohan Raj Mehta [ C&F agent] was not supplied to the assessee and opportunity to cross examine Shri Sohan Raj Mehta was also not given - HELD THAT:- No addition can be made in the hands of the assessee on the basis of papers found in the premises of third party. Assessee being a small taxpayer, some evidence should have been found from the office or residence of the assessee to show that in fact he has received such huge amount. Similarly, the statement of Mr. Rasiklal M. Dhariwal [Company owner where Shri Sohan Raj Mehta, C&F agent employed] is contrary to the finding of the Department. It is also the submission of the Ld. Counsel for the assessee that different Benches of the Tribunal under identical facts and circumstances have deleted the addition made by the Assessing Officer on the basis of notings found from the premises of Mr. Sohan Raj Mehta.
We find identical issue had come up before the Tribunal in the case of Shri Vinit Ranawat [2015 (6) TMI 608 - ITAT PUNE] as deleted the addition as held he search party during the course of search at the premises of the assessee has not found any evidence whatsoever to substantiate that the assessee has in fact received any amount either party. No unaccounted asset, investment or loose paper evidencing such huge receipt has been found - the query raised during the course of search that the authorised officer has treated the same as “short term advance” given to the assessee. Therefore, we find some force in the submission of assessee that if the amount is a short term advance the question of the same constituting income in the hands of the assessee does not arise. Decided in favour of assessee.
Addition made to income from house property - determining the annual value of Mahabaleshwar property - HELD THAT:- After claiming the statutory repairs u/s. 24 and municipal taxes he determined the Annual value of the Mahabaleshwar house property - We find the Ld.CIT(A) following his order for A.Y.2005-06 deleted the addition made by the AO and thereby allowed the ground raised by the assessee determining the annual value at Rs. 25,000/-. Since the Ld.CIT(A) while deciding the issue has followed his order for A.Y. 2005-06 on the very same property and since nothing contrary was brought to our notice against the order of the CIT(A) for A.Y. 2005-06. Therefore, we find no infirmity in the order of the CIT(A) on this issue. Accordingly, the same is upheld and the ground raised by the assessee is dismissed.
Deduction u/s. 80IA(4) - project "Sai Trinity" - preconditions for claiming deduction under Industrial Park Scheme 2002 - assessee admitted to withdrawn the claim during search action - HELD THAT:- As considering the amendment of rule 18C of the Rules made w.e.f. 01.08.2008 where an undertaking begins to develop an Industrial Park is also eligible for the deduction so long as the development is otherwise complete within the period specified in the Scheme as well as it fulfills the conditions envisaged in the Scheme.
There is no justification for the denial of deduction nu/s 80-IA(4)(iii) of the Act in the instant assessment year with regard to the profits earned by the assessee from Industrial Park - we set-aside the order of the CIT(A) and direct the AO to allow the deduction made u/s 80IA(4)(iii).
Addition on account of cash seized from the appellant - AO had rejected the appellant’s sworn affidavit explaining the source and the evidence supporting withdrawal from his bank account summarily - CIT rejected the claim of the assessee trust on the ground that the same was an afterthought since no explanation was furnished during 132(4) statement - HELD THAT:- Nothing plausible was brought to our notice to substantiate with the source of Rs. 33 lakhs so as to take a contrary view than the view taken by the CIT(A). The assessee in our opinion has miserably failed to substantiate with cogent evidence that the amount belong to the trust and the amount of Rs. 10,24,000/- drawn from the Cosmos bank account was available with him. Similarly, nothing was brought to our notice to substantiate the availability of Rs. 74,000/- with the assessee and his family members. We find the Ld.CIT(A) has given valid and cogent reasons while dismissing the ground raised by the assessee on this issue. Under these circumstances and in absence of any contrary material brought to our notice, we do not find any infirmity in his order on this issue. Accordingly, the same is upheld and the ground raised by the assessee is dismissed.
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2016 (11) TMI 1740
Appointment of Arbitrator - dispute between the petitioner and respondent no. 2 to the Arbitrator to be appointed by the Delhi International Arbitration Centre and consequent notice issued requiring the petitioner to suggest five names from the DSE panel of Arbitrators for being appointed as an Arbitrator - HELD THAT:- As decided in Steel Authority of India & Anr. Vs. Micro Small Facilitations Council [2010 (8) TMI 1100 - BOMBAY HIGH COURT] procedure for arbitration and conciliation is precisely the procedure under which all arbitration agreements are dealt with. It cannot be said that because Section 18 provides for a forum of arbitration an independent arbitration agreement entered into between the parties will cease to have effect. There is no question of an independent arbitration agreement ceasing to have any effect because the overriding clause only overrides things inconsistent therewith and there is no inconsistency between an arbitration conducted by the Council under Section 18 and arbitration conducted under an individual clause since both are governed by the provision of the Arbitration Act, 1996.
Issue notice. Notice is accepted by learned counsel appearing for respondent no. 1. Notice shall issue to respondent no. 2, returnable on 31.03.2017.
Till the next date of hearing, the operation of the order dated 16.06.2016 and the notice dated 07.10.2016 shall remain stayed.
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2016 (11) TMI 1739
Applicability of Section 35ABB to license fee and spectrum charges - HELD THAT:- Issue is covered by the decision of the ITAT Delhi Bench in assessee’s own case in respect of A.Y. 2008-09 [2016 (5) TMI 34 - ITAT DELH] wherein held that the expenditure incurred towards licence fee is partly revenue and partly capital. Licence fee payable upto 31st July, 1999 should be treated as capital expenditure and licence fee on revenue sharing basis after 15th August, 1999 should be treated as revenue expenditure. Thus capital expenditure is qualified for deduction as per Section 35ABB of the Act in the said case as per the finding of the Hon’ble High Court. Thus the said issue is decided in favour of the assessee.
Lease rent paid to IBM - HELD THAT:- This issues covered in favour of the assessee by the decision of the ITAT Delhi Bench in assessee’s own case for A.Y. 2008-09 [2016 (5) TMI 34 - ITAT DELH] wherein the Tribunal held that the service cum lease agreement between the assessee and IBM as well as Nortel clearly lays liability on IBM and substance of the transaction suggests that the beneficial ownership remained with IBM and not with assessee and therefore the assessee had rightly claimed the entire lease rent paid by it to IBM.
TDS u/s 194H - discount allowed to distributors on the sale of prepaid cards which carry “Right to Use of Airtime” - HELD THAT:- Addition under Section 40(a)(ia) has to be deleted as the assessee was not in default u/s 201 of the Act in respect of applicability of Section 194H - The Assessee company was carrying out telecom business in the Rajasthan Circle and NESA. The Jaipur Bench of ITAT held that the assessee is not in default in Assessment Year 2004-05 to 2008-09 and Assessment Year 2009-10.
Similarly in the case of assessee itself has held that assessee to be not in default u/s 194H of the Act. Thus no tax was determined as deductible under Chapter XVIIB. Computational provisions of Section 40(a)(ia) cannot operate if machinery provisions of Chapter XVII-B – Section 201 read with Section 194H of the Act are not applicable.
TDS u/s 194J - Payment made by the assessee company for roaming charges to other telecom service providers - HELD THAT:- Jaipur Bench of ITAT recorded a finding in [2015 (7) TMI 175 - ITAT JAIPUR] held that these charges are not fees for rendering any technical services as envisaged in Section 194J - Once the order u/s 201(1) of the Act is set aside then the issue related to Section 40(a) (ia) does not sustain. Thus the disallowance under Section 40(a)(ia) of the Act in respect of free airtime to distributors and roaming charges by the Assessing Officer does not sustain - Decided in favour of assessee.
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2016 (11) TMI 1738
Public Servant or not - Respondent who was appointed as licenced surveyor Under Section 18A of the Karnataka Land Revenue Act, 1964 - Prevention of Corruption Act, 1988 - difference of opinion expressed by the different Benches of the High Court and, therefore, the matter was referred to the larger Bench - Division Bench in [2011 (11) TMI 872 - KARNATAKA HIGH COURT] resolved the issue by holding that such a licenced surveyor would be treated as a 'public servant' as defined Under Section 2(c) of the Prevention of Corruption Act, 1988.
HELD THAT:- Such a licensed surveyor is to be treated as public servant. For this purpose, the view taken by the Division Bench is agreed upon. It is mentioned that different Single Judge Benches of the Karnataka High Court had conflicting views and, for this reason, the matter was referred to the Division Bench which has been answered, by the judgment [2011 (11) TMI 872 - KARNATAKA HIGH COURT] holding licensed surveyor to be a public servant Under Section 2(c) of the Prevention of Corruption Act. For this purpose, the High Court, after taking note of the provisions of Section 128 and 131 of the Act, came to the conclusion that these surveyors discharge statutory duty of preparing survey sketches. Such a function was earlier performed by the surveyors of the Survey Department appointed by the State Government. As these Government surveyors were over-burdened with the work, Karnataka Land Revenue Act was amended by inserting Section 18A therein and the work was assigned to these licensed surveyors. All the activities of the licensed surveyors relating to discharging of statutory duties are controlled by the Survey Department of the State Government.
This legal position is curled out from Rule 46-A to 46-K of the Karnataka Land Revenue Rules, read conjointly with Sections 18-A, 128 and 131 of the Act. The aforesaid facts and legal position unambiguously leads to the conclusion that these licensed surveyors are different from those private surveyors who have no license from the State Government. Once survey report is prepared by these persons, the same is duly acted upon, on the basis of which Government functionaries take further action. It is, thus, statutory work of preparing survey sketches which is bestowed upon these licensed surveyors and thus, they are performing statutory duty/public functions.
Obviously, in the duties that are to be discharged by these public surveyors, the State or the public has interest therein. It is more so, when these public surveyors are bound by the terms of their office as licensed surveyors, viz., the terms on which they are given license by the Government.
Appeal dismissed.
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2016 (11) TMI 1737
Direction to consider the candidature of the Respondent for selection and appointment as Teacher (Primary) in MCD Schools by giving him age relaxation upto 32 years - HELD THAT:- After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the Petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.
Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in the case of Sachin Gupta v. DSSSB and Ors. decided on 28.08.2008 cannot be made applicable for all times. The Respondent herein was not the candidate in the recruitment to the said post in the year 2008, On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Gupta's case.
Appeal allowed.
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2016 (11) TMI 1736
Victim as contemplated by Section 2 (wa) of Indian Penal Code - Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court), to challenge the order - right to prefer appeal under the proviso of section 372 of Indian Penal Code - HELD THAT:- What we find from a reading of the judgments of various High Courts is that all the judgments deal with definition of 'victim' in respect of an offence of murder without considering the impact of the nature of an offence of which one is a victim. There are various forms of offences provided under Indian Penal Code as well as other Special Laws. An offence may be against body, mind, property, etc. In that context injury caused by the offence would vary. Further, there may be crime against society, which can be termed as a victim less crime because there is no victim in particular.
In the case of Subramanian Swamy Vs. Raju, [2013 (8) TMI 1174 - SUPREME COURT], the petitioner, in a public interest litigation had sought an authoritative pronouncement on the true purport and effect of different provisions of the JJ Act so as to take a juvenile out of the purview of the said Act. The High Court had declined to answer the question raised on the ground that the petitioner had an alternative remedy under the JJ Act against the order as may have been passed by the Board.
The inevitable conclusion is that remedy of appeal is a statutory remedy and powers of Appellate Court under Code of Criminal Procedure is an ordinary appellate power, which is regulated by the provisions meant for appeal against acquittal/conviction under Chapter XXIX (Section 372 to 394) of the Code.
Victim - HELD THAT:- The victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim.
Legal heir of actual Victim under Section 2 (wa) - HELD THAT:- The expression “Legal Heir” has to be understood in its ordinary or natural sense. That is if any person is able to establish his status as “heir” recognized by law, he can be termed as “Legal Heir” and the preferences / restrictions / categories provided under any statute / personal law governing succession/ inheritance will have no consequence. This interpretation of expression “Legal Heir” would not be a result of liberal construction but would be a consequence of ordinary or natural meaning of the expression “Legal Heir”.
Guardian of Actual Victim under Section 2 (wa) - HELD THAT:- The word “Guardian” includes a Judicial Guardian (appointed by law), a legal Guardian, a Natural Guardian.
The proviso of Section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of 'victim' as given under Section 2 (wa) (i.e. “Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged), is required to be construed in its literal sense and no liberal interpretation is required, Accordingly, only such person would be treated as ‘victim’, who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of Section 2 (wa) for the purposes of maintaining appeal. The second part that is “includes his or her guardian and Legal Heir” would come into play when the actual sufferer is absent or suffers disability.
Thus, ictim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him /her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his “legal heir” or “guardian” would qualify as victim and have a right to appeal. A person who claims himself to be 'guardian' or 'legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being “legal heir” or “guardian” is based.
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2016 (11) TMI 1735
Determination of tax in certain special cases - tax on LTCG u/s 112(1) - Invocation of proviso to Section 112(1) in applying the lower tax @ 10% - foreign exchange benefits - AO turned down the assessee’s claim and imposed a higher rate of tax @ 20% - as submitted that in this case, the assessee did benefit from the foreign exchange fluctuations and was therefore barred from claiming benefit under Section 112(1) - ITAT applying the lower tax @ 10% - HELD THAT:- This Court notices that the assessee’s claim was examined by the ITAT which based its decision entirely on the judgement in CAIRN UK HOLDINGS LIMITED VERSUS DIRECTOR OF INCOME-TAX [2013 (10) TMI 430 - DELHI HIGH COURT] - This Court examined the interface between Section 48 and Section 112(1) of the Act and concluded the case in favour of the assessee that, like in the case of Cairn UK Holdings Ltd. that despite deriving foreign exchange benefits, the main benefit under Section 112(1) of the Act could not be denied. Since there is a previous ruling by this Court which we have disinclined to disagree with the impugned order, no question of law arises. The appeal is therefore dismissed.
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2016 (11) TMI 1734
TP Adjustment - research and development support services provided by the assessee to its associated enterprises - Comparable selection - HELD THAT:- Assessee provided assistance to its associated enterprises in conducting and co-ordinating testing, trials and experiments; interpretation of results of various such trials; assistance in literature search and any other services required by the associated enterprises with respect to the above. It is also emerging from record that in order to perform such functions, assessee is maintaining laboratory premises and employing necessary infrastructure suitable for such research and analytical testing., thus Companies functionally dissimilar with that of assessee need to be deselected.
Addition of interest on delay in realisation of dues from associated enterprises - HELD THAT:- As decided in assessee own case [2013 (1) TMI 60 - ITAT MUMBAI] we find that the assessee has no interest liability and it does not have any external borrowings. Even if the payments have been made by the A.E. beyond the normal credit period, there is no interest cost to the assessee. Moreover, there is no such agreement whereby interest is to be charged on such a delayed payment.
From the summary of payment submitted it is seen that the billing is done on quarterly basis and, accordingly, the payment is being received. Therefore, the delay is not wholly on account of late payment by the A.Es only. Moreover, the T.P. adjustment cannot be made on hypothetical and notional basis until and unless there is some material on record that there has been under charging of real income. Thus, on the facts and circumstances of the case, we are of the opinion that addition an account of notional interest relating to alleged delayed payment in collection of receivables from the A.Es, is uncalled for on the facts of the present case and is, accordingly, deleted.
Addition of foreign travel expenses - HELD THAT:- As entire disallowance is based on mere conjectures and surmises. In fact, what the DRP records that the details of expenses are “inadequate and not fully satisfactory”. In our considered opinion, the aforesaid inference of the DRP is not based on any factual support and, in fact, not even a single instance has been brought out which would show non-business purposes of the expenditure.
Quite clearly, even the adhoc disallowances are also required to be founded on certain specific discrepancies, an aspect which is conspicuous by its absence in the orders of authorities below for the year under consideration. Therefore, in our view, no disallowance can be upheld in this year on the basis of the order of Tribunal for Assessment Year 2009-10, which has been rendered in the background of specific findings of the lower authorities in that year. In the absence of any specific discrepancy/infirmity having been brought out by the lower authorities, the adhoc disallowance of 25% of foreign travel expenses is untenable - Decided in favour of assessee.
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2016 (11) TMI 1733
Seeking an injunction against the First Respondent from selling, removing or dismantling any assets of the Kota units till the entire amount due to the workmen was determined and settled - BIFR held that the Second Respondent cannot escape responsibility towards the rehabilitation of the Kota unit on the ground that there is change in management - HELD THAT:- It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick inACdustrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008.
Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
The AAIFR held that the Second Respondent has no liability in respect of Kota units which have been sold to the First Respondent. The said findings were not challenged by the First Respondent in the Writ Petition filed in the High Court. The High Court set aside the entire order dated 11.12.2008 without taking note of the findings in favour of the Second Respondent - Appeal dismissed.
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2016 (11) TMI 1732
TP Adjustment - filters adopted by the TPO - HELD THAT:- From the above finding of the DRP, it is very clear that the order of the DRP is very cryptic and without any reasoning and therefore, we find force in the submissions of the assessee that the entire issue should be restored back to the file of the AO/TPO/DRP for fresh decision. Hence, we set aside the order of the AO and restore the matter back to his file for a fresh decision after allowing adequate opportunity of being heard to the assessee.
No adjudication is called for on merit of any of the issues involved in this appeal. Appeal of the assessee is partly allowed for statistical purposes.
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2016 (11) TMI 1731
Grant of complete waiver of deposit under section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - default in payment of liabilities - HELD THAT:- The statements of object and reasons of the SARFAESI Act indicate that the financial sector, being one of the key drivers in India's efforts to achieve success in rapidly developing its economy, did not have a level playing field as compared to other participants in the financial markets of the world. There was no legal provision for facilitating securitisation of financial assets of banks and financial institutions, and unlike international banks, the banks and financial institutions in India did not have the power to take possession of securities and sell them. The Legislature felt that our existing legal framework had not kept pace with the changing commercial practices and financial sector reforms, which resulted in delays in recovery of defaulting loans. This in turn had the effect of mounting levels of non-performing assets of banks and financial institutions. In order to bring the Indian Banking Sector on par with International Standards, the Government set up two Narasimhan Committees and the Andhyarujina Committee for the purposes of examining banking sector reforms.
Section 18(1) clearly stipulates, any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to the DRAT within 30 days from the date of receipt of the order of the DRT. The 2nd proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. The 3rd proviso to Section 18(1) gives a discretion to the DRAT to reduce the aforesaid amount to not less than 25%, provided the DRAT gives reasons for the same which are to be recorded in writing. What becomes clear from the aforesaid provisions is that there is a jurisdictional bar from entertaining an appeal filed by the borrower from an order passed under Section 17, unless the borrower deposits 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less - There is also a discretion granted to the DRAT to reduce this amount to 25% provided it finds adequate reasons for doing so and gives reasons, that are recorded in writing. If this deposit is not made, then the DRAT has no jurisdiction to entertain the appeal of the borrower.
There was non-compliance of Rules 6(2) and 8(6) of the SARFEASI Rules. It is true that the said rules [Rules 6(2) and 8(6)] are mandatory and ordinarily have to be complied with by the secured creditor before it proceeds to sell its secured assets. Rule 6(2) comes into play when the secured creditor seeks to sell movable property and Rule 8(6) comes into play when the borrower is selling immovable property.
The facts of this case clearly show that the 1st Respondent - borrower itself, to pay the dues of Respondent Nos. 2 to 5, had agreed to sell the subject properties. In fact, the 1st Respondent - borrower proposed that the subject properties would be sold to M/s. Shubham Developers for Rs. 7.47 crores and thereafter to Respondent No. 6 for Rs. 6.76 Crores. When these transactions did not fructify, Respondent Nos. 2 to 5 revoked the OTS sanctioned in favour of the 1st Respondent - borrower and thereafter proceeded to sell the subject properties under the provisions of the SARFAESI Act - This being the factual position, it is clear that the 1st Respondent - borrower had given up its right of redemption [as contemplated under Rules 6(2) and 8(6)] by itself offering to sell the subject properties to pay the dues of Respondent Nos. 2 to 5.
Application disposed off.
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2016 (11) TMI 1730
Disallowance u/s 14A r.w. Rule 8D - disallowance pertaining to proportionate interest and administrative expenditure - HELD THAT:- As held in Morgan Stanley India Securities Pvt [2014 (1) TMI 1412 - ITAT MUMBAI] interest disallowance is to be computed on net interest figure instead of the gross one. The Revenue does not dispute this legal position. We thus find force in assessee’s contention on this limited aspect of interest disallowance and direct the AO to proceed on net interest basis only. We agree with ld. CIT(A)’s findings in principle and remit the issue back to the Assessing Authority to re-compute the impugned interest disallowance afresh after affording adequate opportunity of hearing to the assessee. The assessee’s only substantive ground as well as its appeal partly succeeds for statistical purposes.
Nature of expenditure - business development expenditure - HELD THAT:- Both the ld. Representatives are ad idem that this tribunal’s order in assessee’s own case for AYs 2005-06 to 2009-10[2016 (2) TMI 1353 - ITAT AHMEDABAD] follows yet another decision in its case pertaining to AY 2001-02 holding identical business development expenditure to be Revenue in nature. Ld. Departmental Representative fails to point out any distinction on the relevant facts involved. We thus find no reason to interfere in the CIT(A)’s conclusion under challenge. The Revenue fails in its first substantive ground.
Addition of outstanding creditors liability - AO invoked the above statutory provision for the reason that the assessee had been showing the impugned liabilities for a time period exceeding three years - HELD THAT:- The case file indicates that this tribunal in AY 2009-10 [2016 (2) TMI 1353 - ITAT AHMEDABAD] follows hon’ble jurisdictional high court’s decision in CIT vs. Nitin S. Garg, [2012 (5) TMI 30 - GUJARAT HIGH COURT] to hold that such a reason in absence of any evidence proving remission or cessation of liability is not sustainable. The Revenue does not point any exception thereto in facts of the instant case. We accordingly follow judicial consistency to uphold the CIT(A)’s findings under challenge. This latter ground as well as Revenue’s appeal is declined.
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