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2015 (2) TMI 1396
Seeking directions for the members of the petitioner no. 1/Union being appointed to the posts of Assistant Grade III Technical (W-1) with the grade pay of Rs. 1,900/- instead of Rs. 1,800/- - HELD THAT:- The first argument that the Sixth Central Pay Commission Report has been given in Delhi and therefore this Court will have territorial jurisdiction, is an argument which has no substance because the Sixth Central Pay Commission Report was given qua government employees and the petitioners are admittedly not government employees but they are employees of respondent no. 2 and working with the respondent no. 3 (which is the unit of the respondent no. 2) at Noida. Taking that the Sixth Central Pay Commission Report has to be implemented qua the employees of the respondent no. 2 who are posted at Noida, yet, this Court would have no territorial jurisdiction even if the Sixth Central Pay Commission report is to be given effect by the respondent no. 2 being the corporate office, inasmuch as, the actual implementation by giving of service benefits to the petitioners/employees will not be at Delhi but will only and only be at Noida, U.P. - merely because the situs of the office of the maker of an executive order or instructions passed or will be passed, is by the respondent no. 2 being the corporate office at Delhi the same will not give territorial jurisdiction to this Court inasmuch as the necessary executive order or the instructions or the policy which emanates from that executive order or instructions or office memorandum will have to be given effect to and implemented at the office of the petitioners/employees at Noida, U.P. and the situs of issuing of this office order or executive instructions or police decision or instructions being an immaterial aspect qua territorial jurisdiction as held by the Supreme Court in the case of Kusum Ingots & Alloys Ltd. [2004 (4) TMI 342 - SUPREME COURT]. The first argument urged on behalf of the petitioner is therefore rejected.
The second argument of the corporate office being situated in Delhi and which will give territorial jurisdiction to Delhi will stand decided in terms of the first argument which is rejected.
The third argument urged on behalf of the petitioner that this Court would have territorial jurisdiction in view of Section 27 of the Act is once again an argument without merit - All that Section 27 of the Act states is that the provision of this Act will have an effect notwithstanding anything inconsistent thereof in any other law, however, the said provision in no way makes the cause of action arise in Delhi because this provision does not state that a cause of action arising in Noida automatically arises in Delhi merely because Noida is covered in the National Capital Region. Noida is covered in the National Capital Region only for the purpose of said 1985 Act which is only for development of the National Capital Region as per the Act. The Act does not change the law with respect to the arising of cause of action qua the territorial jurisdiction of Courts. The third argument urged on behalf of the petitioner is also therefore rejected.
There is no merit in the petition, and the same is therefore dismissed with costs of Rs. 15,000/- payable to the Prime Minister's National Relief Fund within a period of four weeks from today.
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2015 (2) TMI 1395
Retention of land illegally - Fraud played by the declarants upon the Tehsildar and appellate authorities to get the illegal orders obtained by them to come out from the clutches of the land ceiling provisions of the Act - HELD THAT:- The apprehension in the mind of the Appellants that their statutory, fundamental and constitutional rights guaranteed under the provisions of the Act and Articles 14, 19 and 21 read with 300A of the Constitution of India are infringed at this stage is premature and misconceived. Therefore, the question of issuing notices to them by the State Government before passing the orders in appointing the Deputy Commissioner as an Enquiry Officer to conduct administrative enquiry in relation to the land holdings of the land of the Company, the share holders and the Appellants herein to find out whether the land revenue records of the land of the villages referred to supra are destroyed and fabricated on that basis the declarants have declared that they do not own surplus land, the State Government has not passed effective orders at this stage to take away the valuable rights of the Appellants as claimed by them and therefore, the question of giving opportunity to them at this stage and conducting enquiry before passing the orders is wholly untenable in law, as the orders are only administrative in nature by appointing an officer to enquire into the alleged fraud on the officers, who have decided the declarations of the share holders and sub-lessees favourably on the basis of fabricated revenue records by destroying original records of the land of villages referred to supra, with the deliberate intention to come out from the clutches of the Act.
The rights of the Appellants are not affected on the date of passing of the orders by the State Government.
The orders impugned in the writ petitions which are affirmed by the High Court, are perfectly legal and valid and therefore, the same do not warrant interference by this Court in exercise of power of this Court Under Article 136 of the Constitution - the impugned judgment and order of the Division Bench in affirming the orders of the State Government is not required to be interfered with for one more reason, namely, the High Court, after adverting to certain findings recorded in the criminal cases with regard to the land ceiling and on the alleged fraud against the declarants in getting the orders passed Under Section 21 of the Act, has recorded the findings and reasons holding that the orders of the State Government do not warrant interference as the same are in the interest of public at large.
Appeal dismissed.
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2015 (2) TMI 1394
Rectification of mistake - Rejection of books of account of the assessee - method of accounting of percentage completion method rejected - HELD THAT:- We have heard the rival contentions and perused the materials available on record. We find merit in the arguments of the ld. Counsel for the assessee. This Bench of ITAT has followed the consolidated order in associated concerns thereby upholding the books of account maintained by the assessee as well as project completion method followed by it.
The mistake as pointed out by the assessee amounts to mistake apparent from record - we uphold the books of account of the assessee and also uphold method of accounting of project completion method as followed by this Bench of ITAT in assessee's group of cases. Thus in the entirety of the facts and circumstances, the additions are deleted and the appeals of the assessee are allowed.
Except above, there is no change in the body of the order - MA of assessee allowed.
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2015 (2) TMI 1393
Violation of principles of natural justice - though 20 days time was sought by the petitioner on 19.12.2014, when the notices were received for the respective assessment years with proposal to reverse the claim of ITC on the ground that the selling dealer has not filed monthly returns and payment of tax to the respective assessing officer, without granting or rejecting the request, the respondent has passed orders on 30.12.2014.
HELD THAT:- The petitioner has relied on the decision of this Court in the case of ALTHAF SHOES (P) LTD. VERSUS ASSISTANT COMMISSIONER (CT) , VALLUVARKOTTAM ASSESSMENT CIRCLE, CHENNAI-6 [2011 (10) TMI 567 - MADRAS HIGH COURT], wherein this Court has held The mere fact that the Department had not made an assessment on the dealer's vendor, per se, could not stand in the way of the assessing officer considering the claim of the dealer under section 19 of the Act. Going by section 17 which provided that the burden on the purchasing dealer rested to the extent of showing that he was not liable to tax under the Act and read in the context of the fact that the petitioner-dealer had given his sellers' TIN number and had also produced the invoices evidencing the purchase of materials paying tax, the Department could not successfully canvass its claim that the petitioner was not entitled to have the refund.
The matters are remitted back to the authority concerned for passing appropriate orders afresh on merits and in accordance with law after affording an opportunity of being heard to the petitioner - Petition disposed off.
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2015 (2) TMI 1392
Rectification of mistake - not following the decision of Special bench in order [2014 (11) TMI 725 - ITAT MUMBAI] - Income taxable in India - HELD THAT:- Admittedly, the Ld A.R had placed reliance on the decision rendered by the Special bench in the case of Clifford Chance [2013 (6) TMI 544 - ITAT MUMBAI] at the time of hearing which was not considered.
There should not be any dispute that the decision rendered by the Special bench should be preferred over to the decision of the Division bench. Hence, the impugned order of the Tribunal suffers from the mistake apparent from record in not following the decision of Special bench and hence the same requires to be corrected. The issue regarding the quantum of income attributable to Permanent Establishment is discussed in paragraph 12 of the order.
Miscellaneous application filed by the assessee is allowed.
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2015 (2) TMI 1391
Royalty receipts - Taxability of consideration received for facilitating grant of user charges in software to Indian entities as per the provisions of Indian-US Tax Treaty - HELD THAT:- The issues raised by the assessee are decided against the assessee following the decision of Tribunal in assessee’s own case relating to assessment years 2004-05 and 2006-07 [2013 (8) TMI 952 - ITAT- PUNE] payment made by the respondents to the non-resident supplier amounts to royalty and is rightly brought to tax in India. The assessee is not entitled to get the immunity of the DTAA between India and USA.
Since there is no change in the facts and circumstances. However, in view of the declaration made by the assessee in prescribed Form No.8 in terms of section 158A(1) of the Act, the Assessing Officer is directed to apply the decision of the Hon’ble Bombay High Court and / or Hon’ble Supreme Court of India, on the said issues being decided in assessee’s own case, relating to assessment years 2004-05 and 2006-07. The grounds of appeal Nos.1 to 3 raised by the assessee are accordingly, dismissed.
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2015 (2) TMI 1390
Dishonour of Cheque - Failure of rebuttal of presumption - section 139 of NI Act - HELD THAT:- Admittedly, the cheque has been signed by the accused. The complainant had sent statutory notice dated 14/08/2007 to the accused wherein it was specifically mentioned that the accused had borrowed the said amount of ₹ 22,500/- and towards the repayment of the said amount, had issued the said cheque for the amount of ₹ 22,500/-. The accused was called upon to pay the cheque amount within the period of 15 days from the date of receipt of notice. There is a copy of legal notice and the A.D. Card on record. Mere denial that such a notice was received by the accused, is not sufficient to prove that the notice was not received by him. The accused did not send any reply to the said notice thereby denying the averments made therein. Hence, adverse inference is bound to be drawn as against the accused. In his cross-examination, PW1 specifically stated that the details in the cheque were recorded by the accused.
In the case of "Avon Organics Ltd." [2003 (7) TMI 745 - ANDHRA HIGH COURT] admittedly, the accused had issued a blank cheque without mentioning the date and amount to the appellant. Therefore, there was absolutely no dispute that a blank cheque was given by the accused to the complainant. The High Court held that filling up the amount portion in words and figures and put date of his own choice by the complainant amounts to alteration and such alteration cannot be done without the consent of the accused. The above judgment is not applicable to the present case.
In the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], the Apex Court has held that it is obligatory upon the Court in terms of Sections 138 and 139 of the N.I. Act, to raise the presumption in every case where the factual basis of the raising of presumption has been established.
Thus, it can be said that once the execution of the cheque was admitted by the accused, it was for him to first rebut the presumption arising out of Section 139 of the N.I. Act. It was for him to prove that the contents of the cheque, except the signature, were filled in by the complainant without his consent. In the present case, the accused has not taken any probable defence which could rebut the said presumption. As has been rightly observed by the learned C.J.M., the accused, during the cross-examination of PW1, has only resorted to denial of the statements made by the complainant in his affidavit in evidence. Mere denial was not sufficient to rebut the presumption that had arisen in favour of the complainant.
The Lower Courts have rightly dealt with the matter and have held the accused guilty of the offence punishable under Section 138 of the N.I. Act - there are no jurisdictional error committed by the Lower Courts - the Revision Application is dismissed.
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2015 (2) TMI 1389
Seeking enhancement of compensation for the land acquired for 50 and 80 feet D.P. Road - compensation for land acquired for Dhobi Ghat - HELD THAT:- In the present case is that the dispute relates to mutation; in the revenue record the land has been mutated and recorded in the name of the Appellant-Corporation. This was opposed by the Respondent No. 2 who had not been granted relief by the competent authorities at the different stages. Therefore, he moved before the High Court against the mutation.
It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue - In the present case, it is found that a disputed question of fact was raised by the parties with regard to the title over the land in question. The Appellant-Corporation on the one hand based its claim of title on payment of amount by depositing it in the court and possession of the land taken pursuant to the agreement reached between the Appellant-Corporation and the father of the Respondent No. 2.
In view of the fact that there is a disputed question of fact, it was not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution and thereby reversing the concurrent finding of fact by the competent authorities - appeal allowed.
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2015 (2) TMI 1388
Rectification u/s 154 - period of limitation - whether the period of four years provided in sub-section (7) of Section 154 shall start from the date of the original order or from the date of the amended order? - Original assessment u/s 143(3) for the assessment year 1993-94 was passed on 22nd March, 1996 allowing deduction under Chapter VIA without setting off unabsorbed depreciation and deduction allowed by the order dated 22nd March, 1996 was rectified under Section 154 - HELD THAT:- Once the order dated 22nd March, 1996 was amended in order to give effect to the appellate order, it is the order dated 27th December, 1999 which became the operative order. The original order dated 22nd March, 1996 lost its existence. The law well settled is that two operative orders cannot coexist in the same field. The order of assessment passed on 22nd March, 1996 was admittedly amended on 27th December, 1999 in order to give effect to the appellate order. The order dated 22nd March, 1996 merged into the order dated 27th December, 1999.
The Income Tax Act is a special legislation. Therefore, questions arising out of the aforesaid Act have to be answered taking recourse to the provisions contained therein. But in case of doubt or difficulty assistance can be taken from the general law of the land. The cause of action for rectification is evidently a mistake. It is the mistake, which is sought to be rectified. A cause of action to rectify a mistake, in the general law of the land, does not arise until the mistake has been discovered. Therefore, Section 17 of the Limitation Act provides that the period of limitation in a suit or an application governed by the Limitation Act shall commence from the date of discovery of the mistake. The revenue in this case is however armed with the judgment of the Apex Court in the case of Hind Wire [1995 (1) TMI 2 - SUPREME COURT].
For the aforesaid reasons, we are of the opinion that the proceedings under Section 154 were within the prescribed time and the Tribunal took the correct view of the matter. The appeal is, therefore, dismissed.
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2015 (2) TMI 1387
Dishonour of Cheque - appellant contended that the pay order issued by the bank is nonetheless a cheque satisfying the definition of cheque under Section 6 of the Negotiable Instruments Act - HELD THAT:- Having regard to the specific prescriptions set out in Section 138 referring to 'the person' who issued the 'cheque' again referable to 'an account' of that person so on and so forth, we have our own doubts as to how far the said decision rendered in respect of pay order issued can be applied to the facts of this case. However, for other reasons which weighed with this Court for not granting any relief in this appeal, we do not wish to go into the said issue vis-à-vis the judgment relied upon by counsel for the Appellant and we leave it open for consideration as and when appropriate case arises before us.
In the case on hand Respondent No. 1/Bank has been already dropped from the proceedings by order dated 1.11.2003 which has become final and conclusive. Therefore, in the first instance, even if the Appellant was to be permitted to proceed with the complaint as against Respondent No. 2, very many issues as regards how the pay order came to be issued and the return of the same by Respondent No. 1/bank would attract the penal provisions of Section 138 etc., which cannot be examined in the absence of the concerned accused, namely, the Bank being a party before the Court. Therefore, on this ground itself there is no scope to grant any relief to the Appellant for proceeding with the complaint as against Respondent No. 2.
In the absence of necessary pleadings with particular details as regards the property based on which the transaction was stated to have been entered into between the Appellant and M/s. A.D. Exports Private Limited there is every justification in the stand of the Respondents to doubt the full transaction as between the Appellant and M/s. A.D. Exports Private Limited. More so, when a huge sum of ₹ 44,86,000/- was stated to have been parted by the said agreement holder to the Appellant who agreed to handover the possession and along with the title deeds - Appeal dismissed.
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2015 (2) TMI 1386
Suit for recovery of possession and damages with respect to a portion of the property being in unauthorized occupation of the Appellant/Defendant - Order XII Rule 6 of the Code of Civil Procedure - High Court exceeded its jurisdiction Under Section 115 of the Code of Civil Procedure or not - HELD THAT:- The bare perusal of the provisions of Order XII Rule 6 Code of Civil Procedure, makes it clear that it confers wide discretion on the court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question arose between the parties. Since the Rule permits the passing of judgment at any stage without waiting for determination of other question, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order XII Rule 6 is to give the Plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy.
On an application filed by the Plaintiff/Respondent Under Order XII Rule 6 Code of Civil Procedure seeking a judgment in the suit, the trial court dismissed the application stating that there is no unequivocal admission for passing a judgment in the suit. The High Court, however, reversed the order passed by the trial court and held that considering the earlier judgment deciding the ownership of the suit property in favour of the Appellant, the suit for possession ought to have been decreed by the trial court. Consequently, the High Court decreed the suit - it reveals that the High Court not only decreed the suit for possession but also directed the Plaintiff/Respondent to file an affidavit giving details of the cost of litigation since the appeal was allowed with cost.
There is no dispute with regard to the law settled by this Court that Order XII Rule 6 confers wide discretion on the Court to pass judgment either at the stage of the suit on the basis of admission of the facts made in the pleadings or otherwise, but the Court shall later on decide the other questions which arise for consideration in the Suit - It is equally well settled that the provision of Order XII Rule 6 of the Code is not a mandatory provision rather discretionary. While exercising power of passing judgment on admission made in the pleading or otherwise, the Court must keep the matter pending for adjudication so far as other issues are concerned.
Appeal dismissed.
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2015 (2) TMI 1385
Heirs of the de-facto complainant can be allowed to continue the prosecution or not - who is the aggrieved person - HELD THAT:- The de-facto complainant Madhurilata Bose, a 70 years old lady, wife of Late P.C.Bose used to reside at her husband's place at 78, Ballygunge Place, Kolkata-700019 since the year 1993. Her husband died in the year 1995. Even thereafter she lived there till the year 2003 along with her youngest daughter Sonali Rakshit (O.P. No. 3 herein). Between the period from 2003 to 2009 she lived with her eldest daughter Smt. Ratna Basu Roychowdhury (O.P. No. 2 herein). In the year 2009 her son Debasish Bose (Petitioner No. 1 herein) fraudulently and dishonestly induced her to believe that he intended to help her financially by inducting tenants in the ground floor of the said premises and he made her sign a few papers.
She was then suffering from various ailments including vision problem and she was in dire need of money for treatment. In the year 2010 the petitioner No. 1 further represented to her that the said premises required renovation to fetch maximum rent from the tenants and asked her to stay with the O.P. No. 3 at Uttarpara. Believing such representation to be true she began to reside at Uttarpara with O.P. No. 3. Since then the petitioner No. 1 did not allow her to come back. During the end part of 2010 the petitioner No. 1 along with the petitioner No. 2 Smt Kalyani Biswas who is her second daughter, threatened her not to ever think of returning to the said premises and disclosed that it has been mutated in the name of petitioner No. 1.
The question as to whether the heirs of the de-facto complainant can be allowed to continue the prosecution is no longer res integra as the same has been concluded by the decision of the Hon'ble Supreme Court cited by the Leaned Counsels for the parties in JIMMY JAHANGIR MADAN VERSUS BOLLY CARIYAPPA HINDLEY (DEAD) BY LRS. [2004 (11) TMI 520 - SUPREME COURT]. It has also been held by the Hon'ble Supreme Court that the injured person or relative of the deceased is entitled to appear before the Magistrate and can make his submission at the time of consideration of the report by the Magistrate. Thus the core question which falls for consideration now is as to whether the legal heirs of the deceased de-facto complainant who are the victims can be permitted to file Naraji Petition.
It is evident that "victim", who is the ultimate sufferer in the commission of a crime, has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr.P.C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest Court of law, the "victim" is as much interested in the decision as is the accused or the State. In fact, the "victim" on account of being the injured person and the sufferer, deserves to be recognized as the most aggrieved party in a crime. It is a happy state of affairs that the stand of the victim are now vindicated in shape of amendment in the Cr.P.C. - It becomes clear as day that the law now recognizes importance of victim in a crime and also in all the subsequent proceedings contemplated by the Code, which take place right from lodging of an FIR till decision in appeal or revision.
There are no illegality or infirmity in the impugned order passed by the Learned Chief Judicial Magistrate, Alipore allowing the petition filed the present Opposite Parties under Section 302 Cr.P.C. and by permitting them to file Naraji Petition, so as to warrant any interference by this Court - revision dismissed.
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2015 (2) TMI 1384
Rectification of Mistake - Estimated profit in respect of the turnover disclosed by the assessee in its Profit & Loss A/c. by applying the rate of 35% - addition representing the undisclosed turnover found in the course of search - income from other sources - HELD THAT:- The words used in the order are clearly profit for the assessment year. Having specifically adjudicated the issue of the profit for the assessment year, now the claim of the assessee for further clarifications is nothing but review of the order. Obviously when profit for the assessment year is mentioned, the profit has to be decided for the turnover in it is entirety.
In these circumstances, as it is noticed that the Miscellaneous Applications filed by the assessee are only in regard to seeking of clarification as is evident of the Miscellaneous Applications and as no error has been pointed out in the order of the Tribunal, the Miscellaneous Applications as filed by the assessee stand dismissed.
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2015 (2) TMI 1383
Reopening of assessment u/s 147 - Objections against assessment proceedings - petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details - HELD THAT:- It is apparent that without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order. The entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner.
Petitioner places reliance on the judgment of the Division Bench of the Delhi High Court in the case of Mr. Ashok Mittal [2014 (4) TMI 208 - DELHI HIGH COURT] wherein also petitioner therein had specifically objected for the assessment proceedings stating that he had no transaction with either Mukesh Choksi or any other related companies, but the Assessing Officer had solely proceeded on the basis of the statement and the list provided without there being any other information or details furnished to the petitioner though petitioner therein had sought for such details. The High Court of Delhi has held that there was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India.
In the light of the facts and circumstances as adverted to above and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed.
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2015 (2) TMI 1382
Deemed dividend u/s 2(22)(e) - treating of loans/advances in the normal course of business as ‘deemed dividend’ - HELD THAT:- From the records, it is evident that the assessee-company is not the shareholding company of M/s. Fairmacs Shipping & Transport Services Pvt. Ltd.. To fall within the scope of ‘deemed dividend’ u/s.2(22)(e) payment should have been made by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares. Thus, the amounts can be treated as ‘deemed dividend’ only if it is advanced to a person (including juristic person) who is a beneficial shareholder.
Special Bench of the Tribunal in the case of ACIT vs. Bhaumik Colour Pvt. Ltd. [2008 (11) TMI 273 - ITAT BOMBAY-E] has held that the deemed dividend can be assessed only in hands of a person who is a shareholder of lender company and not in hands of a person other than a shareholder.
The view taken by the Special Bench has been approved by the Hon’ble Madras High Court in the case of CIT v. Printwave Services (P.) Ltd [2014 (11) TMI 694 - MADRAS HIGH COURT] while dealing with similar controversy held that since the assessee–company is not beneficial or registered owner of shareholding in the company (sister concern), no dividend, normal or deemed could have been received by the assessee-company. Therefore, the provisions of Sec.2(22)(e) will not apply. Appeal of assessee allowed,
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2015 (2) TMI 1381
Comprehensive settlement towards full and final settlement of all their claims in respect of the movable and immovable assets left by the deceased parents - HELD THAT:- In view of the affidavits filed by the plaintiff and the defendants No.3 & 4 and the amounts received by them, as agreed, all the parties jointly state that the defendant No.1 be declared as the sole, absolute and exclusive owner of the property bearing No. A-53, Vasant Marg, Vasant Vihar, New Delhi and the commercial property/office space bearing No.C-001A, First Floor, Super Mart Commercial Complex-I, DLF Qutab Enclave Complex, Phase IV, Gurgaon, Haryana. Ordered accordingly.
The suit is decreed in terms of the settlement recorded on 7.11.2014.
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2015 (2) TMI 1380
Benefit of exemption u/s.54G - Short term capital gain - as claimed that the capital gain is not chargeable to tax and is exempt u/s.54G - whether the property transferred by the Assessee was a capital asset, being machinery or plant or building or land or any rights in building or land used for the purposes of the business of an industrial undertaking situate in an urban area? - HELD THAT:- Explanation to section 54G(1) of the Act expressly provides that having regard to the population, concentration of industries, need for proper planning of the area and the other factors, the Central Government by general or special order declared to be an urban area for the purpose of sub-section(1) of section 54G of the Act.
CBDT has issued notification dated 27/04/2006 for the purpose of exemption of capital gains u/s 54G in conformity to the Explanation above, declaring Bangalore as urban area. Such notification as we have already seen has been held by the Hon’ble Karnataka High Court [2005 (5) TMI 690 - KARNATAKA HIGH COURT] as applicable from the date of notification and has no retrospective effect. In view of the legal position mentioned above, the assessee’s contention is not tenable.
Bangalore was notified as urban area - assessee raised another issue that u/s 280ZA of the Act, which was a section providing for relief to Assessees who relocate their industries to Backward area, Bangalore was notified as urban area for the purpose of giving relief for shifting the industry from Bangalore to other backward area - Section 280ZA of the Act was introduced by the Finance Act 1965 with effect from 01/04/1965 and omitted by the Finance Act 1987 with effect from 01/04/1988.
Section-280Z provided for relief by way of reduction of a fraction of tax on capital gains arising from the sale of the assets at the old place from where an industrial undertaking is shifted in terms of the scheme of the Central Government announced for this purpose. In order to be eligible for the concession specified conditions have to be fulfilled. Though the expression industrial ‘undertaking’ has not been defined in this chapter, it should bear the meaning assigned to it in section 80J of the Act formerly section 84 of the Act.
CBDT has issued notification urban areas u/s 280Y(d) vide Notification No.S.O.3419 dated 22/09/1967 thereby Bangalore Corporation is declared as “urban areas” for the purpose of XXIIB of the Act. Moreover, this notification is applicable for tax credit certificates for shifting of industrial undertaking from urban areas u/s 280Y(d) r.w.s. 280ZA of the Act and same cannot be held to be applicable for exemption u/s 54G of the Act.
As also seen that the Hon’ble High Court of Karnataka has held that Notification dated 27.10.2006 cannot apply retrospectively. In such circumstances, we are of the view that the ld. CIT(Appeals) was justified in upholding the order of the Assessing Officer denying the benefit of section 54G to the assessee.
Assessee filed before us Notification No.9447 dated 6.1.1994. The said Notification was issued by the Central Govt. notifying areas which have to be regarded as urban areas for the purpose of section 2(1A) & 2(14) of the Act, which defines agricultural income and capital assets respectively. It was pointed out by him that municipal area of Bangalore and area upto a distance of 8 Kms. from municipal limits of Bangalore in all directions have been notified as urban areas. According to him, definition of urban area cannot be different for the purpose of section 54G.
We are unable to accept the aforesaid argument of the ld. counsel for the assessee. The benefit conferred u/s. 54G of the Act is a specific benefit. Explanation below section 54G(1) of the Act contemplates notification by the Central Government for the purpose of allowing deduction u/s. 54G of the Act. The Notification issued under a different provision of the Act which is meant for different purpose cannot be applied while dealing with the provision of section 54G of the Act. We therefore reject the argument of assessee.
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2015 (2) TMI 1379
CENVAT Credit - amount to be reversed attributable to the trading activity of the appellant in respect of which cenvat credit is not admissible - HELD THAT:- If services are identifiable to have been used only for providing dutiable services exclusively, there is no need to reverse any portion of the credit on the basis of proportion of trading activity to the total turnover or even for exempted services. Since the calculation did not take this aspect into account then matter has to go back for fresh consideration.
The impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication after giving reasonable opportunity to the appellants to present their case and call additional evidences in support of the case - Appeal allowed by way of remand.
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2015 (2) TMI 1378
Entitlement to officers/employees to visit overseas countries/centres as part of LTC/HTC - validity of circular issued by the State Bank of India - reimbursement of LTC - HELD THAT:- There is no dispute that the Bank would be paying LTC amount to the concerned officers pursuant to the interim order granted by this Court. Interim Order is subject to the result of the writ petition. The learned counsel for the petitioner is correct in his contention that the there is no taxable income for deduction at source.
The interim order granted by this Court is explained to the effect that any amount paid to the petitioner towards LTC or re-imbursement of LTC pursuant to the impugned order would not amount to income so as to enable the Bank to deduct tax at source. It is made clear that if the writ petition is dismissed, the employees are liable to pay tax on the amount paid by Bank.
Post the writ petition for final disposal on 15.06.2015. The interim order already granted with this modification would continue till the disposal of the writ petition.
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2015 (2) TMI 1377
Validity of assessment order - it is alleged that the petitioner has not reported the actual sale turnover to the Sales Tax Department for the years 2008-09 and 2009-10 - reports furnished by the Regional Vigilance and Enforcement Officer, Vijayawada are not furnished to him - Violation of principles of natural justice - HELD THAT:- When the order of assessment is solely based on the material and reports submitted by the Regional Vigilance and Enforcement Officer, Vijayawada, it is obligatory on the part of authorities to supply such material along with the notice of assessment and invite objections from the petitioner, before passing the revised assessment order.
The matter is remanded for fresh consideration by the respondent/Respondent shall furnish to the petitioner, the reports/material supplied by the Regional Vigilance and Enforcement Officer, Vijayawada, and thereafter, pass appropriate orders afresh as expeditiously as possible, preferably within a period of four months from today - appeal allowed by way of remand.
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