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Showing 21 to 40 of 886 Records

• 2013 (3) TMI 873
  
  Issues Involved:
  1. Full opportunity to represent the case.
  2. Violation of mandatory procedure u/s 24 of the Arbitration & Conciliation Act.
  3. Alleged bias and prejudice by the arbitrator.
  
  Summary:
  
  Issue 1: Full Opportunity to Represent the Case
  The petitioner argued that the arbitrator did not provide full opportunity to present his case as mandated by Section 18 of the Arbitration & Conciliation Act. The petitioner claimed that the arbitrator failed to consider reports from handwriting experts and did not allow the petitioner to lead additional evidence. The court noted that the petitioner had been given ample opportunities, including multiple adjournments and the chance to examine witnesses. The court found that the petitioner had, in fact, waived his right to additional evidence by failing to pursue it in a timely manner. The court concluded that the arbitrator had provided full opportunity to both parties and had acted within his discretion.
  
  Issue 2: Violation of Mandatory Procedure u/s 24 of the Act
  The petitioner contended that the arbitrator violated Section 24 by not holding oral hearings at an appropriate stage. The court observed that the arbitrator had conducted 61 sittings and had given the petitioner multiple opportunities to present his case, including oral arguments and the examination of witnesses. The court found that the petitioner had sought to delay the proceedings by making belated applications for additional evidence. The court held that the arbitrator had acted fairly and within the scope of Section 24, and there was no violation of the mandatory procedure.
  
  Issue 3: Alleged Bias and Prejudice by the Arbitrator
  The petitioner alleged that the arbitrator was biased and had a prejudiced mind against him. The court noted that the petitioner had not substantiated these allegations and had failed to file an application under Section 12 and 13 of the Act within the prescribed time. The court found that the arbitrator had shown indulgence to both parties and had granted full opportunity to present their cases. The court concluded that there was no evidence of bias or prejudice by the arbitrator, and the allegations were baseless.
  
  Conclusion:
  The court dismissed the arbitration petitions, holding that the arbitrator had provided full opportunity to both parties, complied with the mandatory procedures u/s 24 of the Act, and acted without bias or prejudice. No order as to costs was made.

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• 2013 (3) TMI 872
  
  Issues involved: Petitioner sought order against insistence on license for lawful activities; interference in skill-oriented games like Rummy, Poker, Chess, etc.
  
  Judgment Summary:
  
  Issue 1: License Requirement
  The petitioner sought direction against insistence on obtaining license for lawful activities in premises. Petitioner argued that activities like playing Dart, Chess, Rummy, Snooker/Billiards, and Carrom are not gambling activities or games of chance, hence not requiring a license. The place is restricted to members only, not a public place. Court considered arguments and held that respondents should not interfere with lawful activities but can take action if unlawful activities occur.
  
  Issue 2: Interference with Activities
  Respondents assured not to interfere with lawful activities and will act only if petitioner engages in unlawful activities. Court noted that the only complaint was interference with lawful activities. Court ordered respondents not to interfere with recreational activities of petitioner-Association but allowed lawful action if unlawful activities occur.
  
  In conclusion, the High Court directed respondents not to interfere with lawful recreational activities of the petitioner-Association and permitted lawful action in case of any unlawful activity. The Writ Petition was disposed of with no costs.

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• 2013 (3) TMI 871
  
  Issues involved: Appeal against disallowance of expenditure u/s. 14A r.w. Rule 8D for assessment year 2008-09.
  
  Summary:
  
  Issue 1: Disallowance of expenditure u/s. 14A r.w. Rule 8D
  The appellant, engaged in manufacturing and trading of edible oil, had investments in mutual funds and shares. The Assessing Officer (A.O.) disallowed expenditure of Rs.3,68,933 u/s. 14A r.w. Rule 8D, citing administrative expenses related to the investment portfolio. The CIT(A) upheld the disallowance, applying Rule 8D for disallowing expenses relating to exempt income. The appellant contended that no exempted income was earned, and investments were made in previous assessment years. The Tribunal noted that no investigation from borrowed funds was made for investments during the year, and other income did not include dividend income. As Rule 8D is effective from A.Y. 08-09, the Tribunal allowed the appeal, emphasizing the need to fulfill Section 14A conditions before applying Rule 8D.
  
  Key Points:
  - A.O. disallowed expenditure u/s. 14A r.w. Rule 8D due to administrative expenses related to investments.
  - CIT(A) upheld the disallowance, applying Rule 8D for expenses relating to exempt income.
  - Appellant argued no exempted income was earned, investments were from previous years.
  - Tribunal found no investigation from borrowed funds for investments during the year.
  - Other income did not include dividend income, supporting the appellant's claim.
  - Rule 8D effective from A.Y. 08-09, conditions of Section 14A must be met before its application.
  - Tribunal allowed the appeal, emphasizing compliance with Section 14A conditions before Rule 8D application.
  
  This summary provides a detailed overview of the judgment, highlighting the issues involved and the Tribunal's decision regarding the disallowance of expenditure under Section 14A r.w. Rule 8D for the assessment year 2008-09.

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• 2013 (3) TMI 870
  

  Forfeiture of right of the Corporation for appointment of an arbitrator - seeking an order of injunction against the Corporation from stopping the supply of Kerosene/LDO - whether the appointment of the arbitrator by Respondent No. 1 in the course of the proceedings u/s 11(6) is of any legal consequence and the Chief Justice of the High Court ought to have exercised the jurisdiction and appointed an arbitrator? - HELD THAT:- In the present case, the Corporation has failed to act as required under the procedure agreed upon by the parties in Clause 29 and despite the demand by the dealer to appoint the arbitrator, the Corporation did not make appointment until the application was made u/s 11(6). Thus, the Corporation has forfeited its right of appointment of an arbitrator. In this view of the matter, the Chief Justice ought to have exercised his jurisdiction u/s 11(6) in the matter for appointment of an arbitrator appropriately. The appointment of the arbitrator by the Corporation during the pendency of proceedings u/s 11(6) was of no consequence.

  In the course of arguments before us, on behalf of the Appellant certain names of retired High Court Judges were indicated to the senior counsel for the Corporation for appointment as sole arbitrator but the Corporation did not agree to any of the names proposed by the Appellant. In the circumstances, we are left with no choice but to send the matter back to the Chief Justice of the Allahabad High Court for an appropriate order on the application made by the dealer u/s 11(6).

  Civil Appeal is, accordingly, allowed. The impugned order is set aside. Arbitration Case, Deep Trading Co. v. Indian Oil Corporation and Ors., is restored to the file of the High Court of Judicature at Allahabad for fresh consideration by the Chief Justice or the designate Judge, as the case may be, in accordance with law and in light of the observations made above.

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• 2013 (3) TMI 869
  
  Issues Involved:
  1. Direction to recompute deduction u/s 10B of the Income-tax Act, 1961 by reducing certain charges from export turnover.
  2. Allowance of claim for provision for gratuity.
  
  Recomputing Deduction u/s 10B:
  The Revenue appealed against the CIT(Appeals) order to recompute the deduction u/s 10B by reducing freight and clearing charges from export turnover. The Special Bench in the case of Saksoft Ltd. held that exclusions from export turnover must also be excluded from total turnover for computing deduction u/s 10B. The Revenue failed to provide any new evidence to warrant a different view, resulting in the dismissal of this ground.
  
  Provision for Gratuity Claim:
  The Revenue contested the CIT(Appeals) direction to allow the assessee's claim for provision for gratuity. The assessee had made a provision for gratuity towards a Gratuity Fund with LIC of India, claiming it was in accordance with Section 40A(7)(b) of the Act. The Assessing Officer disallowed the claim citing Section 43B(b) of the Act, stating only payments made during the relevant previous year could be allowed. However, the CIT(Appeals) held that Section 40A(7)(b) prevailed over Section 43B, allowing the claim. The Revenue argued that the provision was never paid, thus not satisfying both Section 40A(7) and Section 43B requirements.
  
  The Assessing Officer noted the provision made by the assessee towards a Gratuity Fund with LIC of India, citing Section 40A(7)(a) of the Act. The question arose whether Section 40A(7) overrides Section 43B. Referring to a similar case before the High Court, it was determined that Section 40A(7) was an overriding section to Section 43B. The Court emphasized that payments to recognized approved funds were exempt from disallowance. The Tribunal concluded that the claim must satisfy Section 40A(7)(a) and Section 43B, including the proviso. As these aspects were not verified by the authorities, the orders were set aside, and the case was remitted back to the Assessing Officer for reconsideration. The Revenue's ground was allowed for statistical purposes.
  
  In conclusion, the appeal filed by the Revenue was partly allowed for statistical purposes.

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• 2013 (3) TMI 868
  
  Issues Involved:
  1. Validity of assessment orders u/s 153A.
  2. Conditions for invoking jurisdiction u/s 153A and 153C.
  3. Use of seized documents for assessments.
  
  Summary:
  
  1. Validity of Assessment Orders u/s 153A:
  The primary issue was whether the Ld. CIT(A) was justified in holding the assessment order as invalid, particularly when the search warrant mentioned the name of the proprietary concern of the assessee. The Tribunal noted that a search operation u/s 132 was conducted at the residential premises of Shri Chironjilal Shivhare and his family members, including the assessee. However, the assessee objected to the initiation of proceedings u/s 153A, arguing that no search warrant was issued in his individual name. The Ld. CIT(A) found that the conditions of section 153A were not satisfied as no search was conducted u/s 132 against the assessee, and the assessment orders were quashed. The Tribunal upheld this decision, noting that the search warrant did not mention the assessee's name, and no incriminating documents were found against the assessee during the search.
  
  2. Conditions for Invoking Jurisdiction u/s 153A and 153C:
  The Tribunal emphasized that for invoking jurisdiction u/s 153A, it is mandatory that a search is initiated under section 132 or books of account or other documents are requisitioned under section 132A. The Tribunal cited the case of Dr. Mansukh Kanjibhai Shah vs. ACIT, where it was held that not only the warrant of authorization should be issued in the name of the assessee, but the search must also be conducted. In the present case, since the search was conducted at a different address and not at the premises of Asha Oil Industries, the conditions for section 153A were not met. The Tribunal also noted that the conditions for section 153C are different and were not fulfilled in this case, thus the proceedings u/s 153A could not be converted into proceedings u/s 153C.
  
  3. Use of Seized Documents for Assessments:
  The Tribunal referred to the Supreme Court's decision in Pooran Mal vs. Director of Inspection (Investigation), which held that even if a search is illegal, the seized documents can be used for assessments. The Tribunal directed that if any material indicating the assessee's unaccounted money was found during the search, the department is not precluded from using such material against the assessee under different provisions of law.
  
  Conclusion:
  The Tribunal dismissed all the departmental appeals, confirming the order of the Ld. CIT(A) that the assessment orders u/s 153A were invalid. The Tribunal also directed the Assessing Officer to proceed on the basis of any incriminating material found during the search against the assessee as per law.

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• 2013 (3) TMI 867
  
  Issues Involved:
  1. Necessity of an affidavit u/s Order VI Rule 15(4) of the Code of Civil Procedure for an election petition.
  2. Compliance with statutory Form No. 25 for affidavits alleging corrupt practices.
  3. Summary dismissal of an election petition u/s 86 of the Representation of the People Act, 1951.
  4. Whether defects in affidavits are curable.
  5. Striking out paragraphs of an election petition under Order VI Rule 16 of the Code of Civil Procedure.
  
  Summary of Judgment:
  
  1. Necessity of an affidavit u/s Order VI Rule 15(4) of the Code of Civil Procedure:
  The Supreme Court held that there is no mandate in the Representation of the People Act, 1951 requiring an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure in addition to an affidavit in Form No. 25. The Court stated that the requirement of "also" filing an affidavit in support of pleadings under the Code of Civil Procedure does not mean that the verification of a plaint is incomplete without it. The affidavit is a stand-alone document and not part of the verification of the pleadings.
  
  2. Compliance with statutory Form No. 25 for affidavits alleging corrupt practices:
  The Court concluded that substantial compliance with the statutory form is sufficient and an election petition should not be summarily dismissed solely because the affidavit is not in the exact prescribed format. The High Court's view that the affidavit filed by the election petitioner was in substantial compliance with the prescribed format was endorsed. Defects in the affidavit are curable and do not render the election petition invalid.
  
  3. Summary dismissal of an election petition u/s 86 of the Representation of the People Act, 1951:
  The Supreme Court reiterated that an election petition cannot be summarily dismissed under Section 86 of the Act for non-compliance with Section 83. The Court cited previous judgments affirming that defects in the verification of pleadings and affidavits are curable and do not attract summary dismissal under Section 86. The Court emphasized that substantial compliance with Section 83 is sufficient and curable defects should not lead to dismissal.
  
  4. Whether defects in affidavits are curable:
  The Court held that defects in affidavits, such as those related to verification or format, are curable. The High Court was correct in granting the election petitioner an opportunity to cure these defects. The Court referred to past decisions indicating that curable defects should be rectified rather than leading to the dismissal of the election petition.
  
  5. Striking out paragraphs of an election petition under Order VI Rule 16 of the Code of Civil Procedure:
  The High Court had struck off some paragraphs of the election petition that lacked material particulars and were considered vague. The Supreme Court saw no reason to disagree with the High Court's decision to strike out certain paragraphs while retaining others for trial. The objections regarding the absence of material particulars and cause of action were thus addressed appropriately.
  
  Conclusion:
  The appeals were dismissed, affirming the High Court's judgment that substantial compliance with affidavit requirements is sufficient and defects are curable. The election petition was not liable to be dismissed for non-compliance with Section 83 or for defective affidavits, provided an opportunity to rectify the defects is given.

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• 2013 (3) TMI 866
  
  Issues involved: Appeal against penalty u/s 272A(2)(k) of the Income Tax Act, 1961 for late filing of TDS quarterly statements.
  
  Summary:
  The appeal was directed against the order of Ld. CIT(A) XXI, Ahmedabad for the assessment year 2010-11. The assessee raised grounds challenging the penalty imposed by the Joint Commissioner, TDS Range, Ahmedabad u/s 272A(2)(k) of the Income Tax Act, 1961. The main contention was the delay in filing quarterly TDS statements and the imposition of penalty amounting to Rs. 2,55,500.
  
  The assessee argued that the delay was due to software issues and also due to delayed tax payments. Reference was made to a tribunal decision in the case of Porwal Creative Vision (P) Ltd to support the argument. The Departmental Representative supported the orders of the authorities below.
  
  After considering the submissions and the tribunal decision cited by the assessee, it was observed that most of the quarterly statements were filed late even after the tax payments were made. The contention of software malfunction causing a significant delay was not accepted. Regarding the delayed tax payments affecting the filing of TDS returns, it was held in the tribunal decision that penalty should be levied only from the date of tax payment till the date of filing the TDS return.
  
  Therefore, the appeal was partly allowed, directing the Assessing Officer to calculate the penalty based on the delay from the date of tax payment to the date of filing the TDS return.

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• 2013 (3) TMI 865
  
  Issues Involved:
  1. Quashing of prosecutions u/s 482 of Cr.P.C.
  2. Relief of anticipatory bail u/s 438 of Cr.P.C.
  3. Transfer of cases for joint trial.
  
  Summary:
  
  1. Quashing of Prosecutions u/s 482 of Cr.P.C.:

  Criminal Petition Nos. 3392/2012, 3394/2012, 3395/2012, 3396/2012, and 3397/2012 were filed seeking quashing of prosecutions in various criminal cases. The petitioners, including C.P. Yogeshwar and others, were accused of committing various offences under IPC related to a housing project named Vajragiri Township by Megacity (Bangalore) Developers and Builders Limited (MDBL). The allegations included cheating, forgery, misappropriation, and criminal breach of trust. The court noted that the basic facts leading to the prosecutions were interlinked and related to the same project. The court decided that all cases should be tried by the same Presiding Officer to avoid prejudice and conflicting decisions. Therefore, the cases pending before the IV-ACMM were transferred to I-ACMM, Bangalore, for joint trial.

  2. Relief of Anticipatory Bail u/s 438 of Cr.P.C.:

  Criminal Petition Nos. 4453/2012, 4258/2012, 4260/2012, 4261/2012, and 4262/2012 were filed seeking anticipatory bail. The petitioners directly approached the High Court without approaching the Sessions Court. The court observed that while both the High Court and Sessions Court have concurrent jurisdiction u/s 438 Cr.P.C., it is generally advisable to approach the Sessions Court first. The court cited previous decisions emphasizing that the Sessions Court is nearer and more accessible, and its reasons would benefit the High Court. Since the petitioners did not provide special circumstances for bypassing the Sessions Court, the court directed them to approach the Sessions Court first for anticipatory bail.

  3. Transfer of Cases for Joint Trial:

  The court, exercising power u/s 407 of Cr.P.C., transferred C.C. Nos. 6414/2012, 6415/2012, 6416/2012, and 6417/2012 pending before the IV-ACMM to the I-ACMM, Bangalore. This was to ensure that all cases related to the Vajragiri Township project, including C.C. Nos. 10389/2010 and 6907/2012, were tried and disposed of together by the same court, thereby avoiding any possible prejudice and conflicting decisions.

  Conclusion:

  All Criminal Petitions were disposed of with directions to transfer the cases for joint trial and for the petitioners to approach the Sessions Court for anticipatory bail.

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• 2013 (3) TMI 864
  
  Issues Involved:
  1. Winding up of the company and possession of assets by the Official Liquidator.
  2. Leasehold and freehold land disputes.
  3. Scheme of compromise for revival of the company u/s 391 of the Companies Act.
  4. Valuation of freehold land and subsequent actions.
  5. Objections and claims regarding the land.
  6. Review and reconsideration of the proposed scheme.
  7. Public auction of freehold land.
  
  Summary:
  
  1. Winding up of the company and possession of assets by the Official Liquidator:
  The company, M/s. Omex Investors Limited, was ordered to be wound up on 26.10.1989, and the Official Liquidator took possession of its assets, including movable and immovable properties.
  
  2. Leasehold and freehold land disputes:
  Out of the immovable properties, 26332 square meters were leasehold lands, and the lessors' application for recovery of possession was rejected. The freehold land admeasuring 36250 square meters from plot No.32 included land claimed by U.L.C. Authority and land available with the company.
  
  3. Scheme of compromise for revival of the company u/s 391 of the Companies Act:
  The Official Liquidator filed a report regarding the company's assets, and two applications proposed a scheme of compromise for revival u/s 391 of the Companies Act. The learned company Judge found the proposed scheme undesirable and rejected it, directing the Official Liquidator to identify and sell the lands.
  
  4. Valuation of freehold land and subsequent actions:
  The order dated 21.09.2010 was challenged, and the Hon'ble Division Bench directed reconsideration based on a sealed valuation report. Fresh valuation reports were called for due to the passage of time and escalation of real estate prices. The reports were submitted in sealed covers, and the valuation of the freehold land was found to be below Rs. 125 Crores.
  
  5. Objections and claims regarding the land:
  No objections were received for the freehold land admeasuring 36250 square meters. The objections were for leasehold lands from the lessors. The Company Application No.331 of 2012 was filed to open the sealed cover and decide the matter afresh.
  
  6. Review and reconsideration of the proposed scheme:
  The valuation of the freehold land of the company and U.L.C. Authority was found to be beyond Rs. 125 Crores. The applicant argued for reconsideration based on the proposed Second Revised Development Plan - 2021. However, the court found no good ground for reconsideration or review of the proposed scheme, as it was not beneficial for the revival of the company.
  
  7. Public auction of freehold land:
  The court directed the Official Liquidator to auction the freehold land of the company admeasuring 13895 square meters. The upset price was fixed at Rs. 55 Crores with an earnest money deposit of 10%. Public notice of the sale was to be given in leading newspapers, and the schedule of the sale program was outlined.
  
  Conclusion:
  Company Application No.331 of 2012, Company Application No.75 of 2012, and Company Application No.475 of 2011 were rejected. The Official Liquidator was directed to proceed with the auction of the freehold land. The matter was listed for further action on 3rd May 2013.

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• 2013 (3) TMI 863
  
  Issues Involved:
  1. Validity of the auction sale conducted by the District Collector and Thasildar.
  2. Applicability of Section 536(2) of the Companies Act, 1956.
  3. Rights and claims of the secured creditors and workmen.
  4. Legal standing of the Official Liquidator to challenge the auction sale.
  
  Summary:
  
  Issue 1: Validity of the auction sale conducted by the District Collector and Thasildar
  The Official Liquidator filed an application u/s 460(4) of the Companies Act, 1956, seeking to declare the auction sale conducted by the District Collector and Thasildar as null and void in view of Section 536(2) of the Companies Act, 1956. The auction was conducted on 9.1.2003 for a total sale consideration of Rs. 42,55,000/- to Hindu Educational Society. The sale proceeds were used to settle labour dues and pay Tamil Nadu Industrial Investment Corporation. The respondent No.3 contended that the auction sale was conducted under statutory provisions of the Revenue Recovery Act, 1956, and was upheld by the Court in previous writ petitions.
  
  Issue 2: Applicability of Section 536(2) of the Companies Act, 1956
  Section 536(2) states that any disposition of the property of the company after the commencement of winding up shall be void unless the Court orders otherwise. The Court noted that the winding up of the company commenced on 8.1.1997, the date of the presentation of the winding-up petition. However, the Court also highlighted that the word "void" in Section 536(2) is not peremptory and the Court has the power to order otherwise, as elucidated in the Supreme Court judgment in Pankat Mehra and another vs. State of Maharashtra and others.
  
  Issue 3: Rights and claims of the secured creditors and workmen
  The Official Liquidator reported claims from secured creditors like Vijaya Bank, Canara Bank, TIIC, and SIPCOT. The auction sale proceeds were used to pay the workmen and Tamil Nadu Industrial Investment Corporation. The claims of Canara Bank and Vijaya Bank were rejected by the competent authority, and this order attained finality. The respondent No.3 argued that the sale proceeds were used for the benefit of the company, and the sale was conducted in compliance with statutory provisions.
  
  Issue 4: Legal standing of the Official Liquidator to challenge the auction sale
  The Court found that the Official Liquidator has no locus standi to challenge the auction sale as the sale was previously upheld by the Court in writ petitions filed by the company. The Court emphasized that the Official Liquidator steps into the shoes of the management of the company after it is ordered to be wound up and is bound by the decisions of the Court. The Court concluded that the sale by the District Collector cannot be said to be "void ab initio" and the application by the Official Liquidator is devoid of any merit.
  
  Conclusion:
  The application by the Official Liquidator to declare the auction sale as null and void was dismissed. The Court upheld the validity of the auction sale conducted by the District Collector and Thasildar, stating that the sale was not "void ab initio" and the Official Liquidator has no locus standi to challenge the auction. The sale proceeds were utilized to discharge the dues of the company in liquidation, and the claims of the secured creditors were addressed as per the statutory provisions.

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• 2013 (3) TMI 862
  
  Issues involved: Challenge to addition of labour expenses and other expenses in the assessment.
  
  Labour Expenses:
  The Assessing Officer (AO) disallowed 5% of the labour expenses amounting to Rs. 7,46,710 as some vouchers were found improper and unsupported by site names. The Appellate Tribunal found that the AO did not specify which expenses were not properly vouched, leading to adhoc additions. The Tribunal noted the overall improvement in the assessee's profit compared to the previous year, supported by complete details and better book results. The Tribunal concluded that the AO's disallowance of labour expenses on an adhoc basis was unjustified, as there was no evidence that the expenses were inadmissible or not incurred for business purposes. Therefore, the Tribunal set aside the addition of Rs. 7,46,710 on labour expenses.
  
  Other Expenses:
  Additionally, the AO disallowed Rs. 50,000 from various expenses, citing lack of proper vouchers and potential personal use of telephone. The Tribunal found that the AO's disallowance of these expenses was also adhoc, lacking specific findings on the nature of the expenses or their business relevance. Considering the overall performance and history of the assessee, the Tribunal concluded that there was no justification to uphold the disallowance of these expenses. Consequently, the Tribunal deleted the addition of Rs. 50,000 on other expenses.
  
  Conclusion:
  The Appellate Tribunal allowed the appeal of the assessee, setting aside the additions of Rs. 7,46,710 and Rs. 50,000 on account of labour and other expenses, respectively.

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• 2013 (3) TMI 861
  
  Issues Involved:
  1. Quashing of FIR in Special Criminal Application Nos. 1157 and 1283 of 2012.
  2. Transfer of investigation in Special Criminal Application No. 1535 of 2012.
  
  Summary:
  
  Issue 1: Quashing of FIR in Special Criminal Application Nos. 1157 and 1283 of 2012
  
  The petitions under Sec. 482 of the Code of Criminal Procedure, 1973, and Art. 226 of the Constitution of India were filed to quash the FIR registered as C.R. No. 1-86 of 2012 at Patan Taluka Police Station. The accused in these petitions claimed that the complaint was an abuse of process and that the allegations did not constitute any offense under the IPC sections mentioned. They argued that the sale deed was executed in good faith and that the complaint was filed after a gross delay, converting a civil dispute into a criminal case.
  
  The court noted that the allegations involved forgery and fabrication of documents, including a Power of Attorney, and the sale of ancestral land. The court emphasized that it should not interfere with the investigation at this stage, as it would stifle the investigation. The principles laid down by the Hon'ble Apex Court in various decisions were considered, highlighting that judicial intervention at the threshold of the legal process is detrimental to public interest and that the High Court should refrain from quashing proceedings unless the complaint on its face does not constitute any offense.
  
  The court observed that the material available did not justify terminating the investigation at this stage. The court also noted that the investigation had not yet collected specimen signatures to verify the authenticity of the Power of Attorney. Therefore, the petitions to quash the FIR were rejected.
  
  Issue 2: Transfer of investigation in Special Criminal Application No. 1535 of 2012
  
  The complainant filed a petition seeking the transfer of the investigation to a higher authority not below the rank of District Superintendent of Police. The court noted that the complaint was lodged on 8-4-2012, and the petitions to quash the FIR were filed soon after, leaving little time for any substantial investigation to be conducted. The court found no substantial grounds or tangible allegations against the investigation process to justify transferring the investigation. Consequently, the request for transferring the investigation was deemed premature and was rejected.
  
  Conclusion:
  
  The court rejected all three petitions. The requests to quash the FIR in Special Criminal Application Nos. 1157 and 1283 of 2012 were not entertained, and the request to transfer the investigation in Special Criminal Application No. 1535 of 2012 was also rejected. The interim relief was extended till 11-10-2013 to enable the petitioners to approach the Apex Court.

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• 2013 (3) TMI 860
  
  Issues Involved:
  1. Rejection of application for registration u/s 12AA of the Income Tax Act, 1961.
  2. Rejection of application for approval u/s 80G of the Income Tax Act, 1961.
  
  Summary:
  
  Issue 1: Rejection of application for registration u/s 12AA of the Income Tax Act, 1961

  The assessee filed Form No.10A for registration u/s 12AA on 10.04.2012. The CIT rejected the application on the grounds that the trust's activities were purely religious and not charitable as defined in Sec. 2(15) of the Act. The assessee argued that the trust's activities, including running a gaushala, dispensary, and organizing bhandaras, were charitable. The Tribunal referred to various judicial pronouncements, including the Hon'ble Supreme Court's decision in American Hotel and Lodging Association Educational Institute vs. CBDT, which emphasized examining the nature, activities, and genuineness of the institution. The Tribunal concluded that the CIT failed to appreciate the charitable nature of the trust's activities and directed the CIT to grant registration u/s 12A/12AA of the Act w.e.f. 10.04.2012.

  Issue 2: Rejection of application for approval u/s 80G of the Income Tax Act, 1961

  The assessee filed Form No.10G for approval u/s 80G on 10.04.2012. The CIT rejected the application for the same reasons as the rejection of the application u/s 12AA. The Tribunal observed that the conditions laid down in Rule 11AA and clauses (i) to (v) of sub-section (5) of section 80G were fulfilled by the assessee. The Tribunal referred to judicial pronouncements, including the I.T.A.T., Nagpur Bench in the case of Shiv Mandir Devsttan Panch Committee Sanstan Nagpur vs. CIT-1 Nagpur, which held that worship and maintenance of temples do not necessarily constitute religious activities. The Tribunal concluded that the CIT's order was not in accordance with the law and directed the CIT to grant approval u/s 80G of the Act w.e.f. 10.04.2012.

  Conclusion:

  The Tribunal directed the CIT to grant registration u/s 12A/12AA and approval u/s 80G of the Income Tax Act, 1961, w.e.f. 10.04.2012, within thirty days from the date of the order. Both appeals filed by the assessee were allowed.

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• 2013 (3) TMI 859
  
  Issues involved: The judgment involves the assessment year 2005-06, the claim of deduction under section 80-IB(10) of the Income-tax Act, 1961, and the validity of reassessment under section 147.
  
  Assessment of Deduction under Section 80-IB(10): The assessee, a company engaged in building residential flats, claimed deduction under section 80-IB(10) for the assessment year 2005-06. The Assessing Officer initially accepted the claim but later, upon scrutiny, withdrew the deduction stating that the project completion timeline requirement was not met. The Commissioner of Income-tax (Appeals) found the objections raised by the Assessing Officer unsustainable in law and allowed the deduction, setting aside the income-escaping assessment order. The Tribunal upheld the Commissioner's decision, citing precedents where the legal ownership of land was not a prerequisite for claiming the deduction under section 80-IB(10), as long as other statutory conditions were fulfilled. The Tribunal concluded that the assessee was entitled to the benefit of section 80-IB(10) as a developer of housing projects.
  
  Validity of Reassessment under Section 147: The Revenue contended that the reassessment was based on new information. However, the Commissioner of Income-tax (Appeals) held that the original assessment was thorough and the reassessment was merely a change of opinion, citing judicial precedents that reassessment cannot be done solely on the basis of a change of opinion. The Tribunal agreed with the Commissioner, stating that no new material was presented for reassessment, and the Assessing Officer's differing view did not justify income-escaping assessment. The Tribunal upheld the Commissioner's decision, declaring the reassessment invalid in law.
  

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• 2013 (3) TMI 858
  
  Issues involved: The judgment involves issues related to disallowance/addition of commission u/s 36(1)(ii) of the Income-tax Act, entitlement for deduction u/s 80-IB(10) of the Act, approval and completion certificate in the name of the director, and disallowance u/s 14A of the Act.
  
  Disallowance/Addition of Commission u/s 36(1)(ii): The Revenue challenged the deletion of disallowance of commission paid to the managing director of the assessee-company. The Tribunal analyzed the legal implications of section 36 of the Income-tax Act, which allows deductions for sums paid as bonus or commission. It was observed that the managing director was not an employee of the company and hence not entitled to the deduction. The Tribunal held that the commission paid was part of the salary and not subject to disallowance under section 36(1)(ii). The disallowance made by the Assessing Officer was deemed unjustified and deleted.
  
  Entitlement for Deduction u/s 80-IB(10): The Revenue contended that the assessee did not qualify for deduction under section 80-IB(10) as it did not follow the standard procedure of land acquisition and construction. However, based on previous judgments and the business model employed by the assessee, the Tribunal upheld that the assessee was entitled to the deduction as a developer of housing projects. The Tribunal found that the legal ownership of the land was not a mandatory criterion for qualifying as a developer, provided other statutory conditions were met.
  
  Approval and Completion Certificate in Director's Name: The Revenue raised concerns about the approval and completion certificate being in the name of the director, not the company, questioning the developer status of the assessee. The Tribunal clarified that the director acted in a fiduciary capacity recognized in law, and there was no distinct line between the company and its directors in procedural matters. The ground raised by the Revenue was rejected.
  
  Disallowance u/s 14A of the Act: The Assessing Officer disallowed a certain amount under section 14A, which was reduced by the Commissioner of Income-tax (Appeals). The Tribunal agreed with the Commissioner's adjustments in apportioning interest and administrative expenses, leading to a relief granted to the assessee. The Tribunal found no valid grounds for the Revenue to challenge this issue and dismissed the appeal.
  

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• 2013 (3) TMI 857
  
  Issues involved: The main issue in this case is whether the land sold by the assessee should be treated as agricultural land or a capital asset for the purpose of capital gain tax.
  
  Revenue's Appeal (ITA No.1246/Ahd/2010):
  The Revenue appealed against the order of the CIT(A) which treated the land as agriculture land and not a capital asset. The AO determined the total income of the assessee at Rs. 18,42,350 after selling an agricultural land for Rs. 13,68,000 claiming it as exempt. The AO considered the land as a capital asset and calculated the capital gain. However, the CIT(A) allowed the appeal of the assessee, stating that the land should be treated as agricultural land based on various factors presented by the assessee.
  
  CIT(A)'s Decision:
  The CIT(A) deleted the addition of capital gain by considering the land as agricultural land, not a capital asset. The CIT(A) reviewed the revenue records, the purpose of sale, and the history of the land to conclude that it should not be treated as a capital asset. The CIT(A) referred to a judgment by the High Court of Gujarat to support this decision.
  
  Arguments in Appeal:
  The Revenue argued that the land should be considered a capital asset as it was situated 5KMs from Valsad and collected additional stamp duty on the transfer deed. On the other hand, the assessee's representative argued that the land was agricultural, supported by the population and distance from the Tahsil Centre. The assessee had been deriving agricultural income from the land and had not applied for non-agricultural use.
  
  Decision and Rationale:
  The Tribunal upheld the CIT(A)'s decision, stating that the land was not within the jurisdiction of a Municipality and the assessee had been deriving agricultural income from it. Referring to a previous case, the Tribunal concluded that the land should be considered agricultural based on various factors presented by the assessee. Therefore, the appeal of the Revenue was dismissed.
  
  Assessee's Cross Objection:
  The assessee raised objections regarding the computation of capital gain and the joint ownership of the land. However, since the main issue of the land being agricultural was already decided in favor of the assessee, the objections were deemed irrelevant and rejected.
  
  In conclusion, the Tribunal upheld the CIT(A)'s decision that the land in question should be treated as agricultural land, not a capital asset, for the purpose of capital gain tax. Both the Revenue's appeal and the Assessee's cross objection were dismissed.

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• 2013 (3) TMI 856
  
  Issues involved: Appeal by the Revenue for Assessment Year 2006-07 regarding the dismissal of the appeal by the Tribunal and upholding of the order of the CIT(A) under Section 143(3) u/s 263 of the Income Tax Act, 1961.
  
  Summary:
  
  Issue (a):
  The Tribunal upheld the order of the CIT(A) which set aside the Assessment Order dated 29th December, 2010 passed under Section 143(3) u/s 263 of the Income Tax Act, 1961. The CIT's order under Section 263 was quashed by the Tribunal, and the Revenue's appeal against this was dismissed by the Court. Consequently, the orders passed based on the quashed CIT's order are not sustainable.
  
  Issue (b):
  The Tribunal also ruled that the order passed under Section 143(3) u/s 263 of the Income Tax Act, 1961 had become infructuous due to the quashing of the CIT's order by the Tribunal. Therefore, there was no reason to entertain the proposed questions of law.
  
  In conclusion, the appeal was dismissed with no order as to costs.

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• 2013 (3) TMI 855
  
  Issues Involved:
  1. Deletion of addition of Rs. 92,00,000/- made by the A.O. as on money paid towards purchase of land.
  
  Summary:
  
  Issue 1: Deletion of Addition of Rs. 92,00,000/- as On Money Paid Towards Purchase of Land
  
  The Revenue appealed against the CIT(A)'s order deleting the addition of Rs. 92,00,000/- made by the A.O. as on money paid towards the purchase of land. The A.O. based the addition on documents seized during a search operation u/s 132 on Vikas A. Shah, which included a power of attorney and details of land sale transactions. The A.O. concluded that the appellant had paid Rs. 92,00,000/- in addition to the documented price of Rs. 4.5 lakhs for the land at Survey No. 60 of Village Dholakuva, relying on statements recorded u/s 131(1A) and various case laws.
  
  The CIT(A) deleted the addition, observing that the A.O.'s conclusions were based on assumptions and the statement of Vikas A. Shah without independent corroborative evidence. The CIT(A) noted that the land's purchase value of Rs. 9 lakh was registered and accepted by the Stamp Duty Authority, and there was no basis to presume additional payment. The CIT(A) also referenced the jurisdictional ITAT decisions in similar cases, emphasizing that additions cannot be made based on presumptions or third-party statements without corroborative evidence.
  
  The ITAT upheld the CIT(A)'s order, agreeing that the A.O. erred in making the addition without allowing cross-examination of Vikas A. Shah, which violated the principles of natural justice. The ITAT noted that the registered document's value was accepted by the Registering Authority, and no material evidence suggested on money payment. The ITAT referenced decisions in Prathana Construction Pvt. Ltd., Prabhat Oil Mills, and Jaindal Stainless Ltd., concluding that third-party evidence cannot be the basis for addition without supporting evidence.
  
  Conclusion:
  The ITAT dismissed the Revenue's appeal, upholding the CIT(A)'s order deleting the addition of Rs. 92,00,000/- made by the A.O. as on money paid towards the purchase of land.

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• 2013 (3) TMI 854
  
  Issues involved: Transfer Pricing adjustment, Application of Section 92C(2), Additional depreciation on computers, Depreciation of leasehold rights in land.
  
  Transfer Pricing adjustment: The Tribunal erred in deleting the Transfer Pricing adjustment based on artificially created sub-segments of international transactions. The Tribunal ignored the Function, Assets, and Risk analysis for the assessee, who was a trader of spares and components. The Tribunal's decision was based on the application of spares and components required for servicing and manufacturing of vehicles.
  
  Application of Section 92C(2): The Tribunal erred in holding that the Explanation below proviso to Section 92C(2) was applicable only from the assessment year 2009-10 onwards and not to pending references as on 1st October 2009. This decision raised questions on the timing and applicability of the adjustment in respect of the variation in Arm's Length Price (ALP).
  
  Additional depreciation on computers: The Tribunal erred in holding that the assessee was entitled to additional depreciation on computers. It failed to appreciate that additional depreciation is applicable only to plants and machineries, while computers fall under a separate block of assets. This decision highlighted a misunderstanding of the relevant depreciation rules.
  
  Depreciation of leasehold rights in land: The Tribunal erred in setting aside the issue of depreciation of leasehold rights in land to the file of the Assessing Officer. This decision was based on a reference to a Supreme Court case that was deemed inapplicable. The Tribunal's action raised concerns about the proper treatment of depreciation for leasehold rights in land.

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