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2015 (4) TMI 1347
In the light of the judgment and order passed in a batch of appeals in Contintental Warehousing Corporation (Nhava Sheta) Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] one of which is concerned with the revenue's appeal against the decision of the Tribunal in the case of Commissioner of Income Tax V/s. M/s. All Cargo Global Logistics Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] which has been followed and applied. We do not find that the appeal raises any substantial question of law. It is accordingly dismissed. No order as to costs.
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2015 (4) TMI 1346
Nature of receipt - Carbon Emission Reduction Units - Revenue Receipt OR Revenue receipt - CIT(A) deleted the addition which was made by the AO by denying the benefit of deduction claimed by the assessee was not “derived from” the eligible business of the assessee - HELD THAT:- The facts of the case are identical to the facts of the case decided by Hyderabad Bench of the Tribunal in the case of My Home Power Ltd [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] carbon credit was in the nature of “an entitlement” received to improve world atmosphere and environment reducing carbon, heat and gas emissions. It was not an offshoot of business but an offshoot of environmental concerns. No asset was generated in the course of business. Credit for reducing carbon emission or greenhouse effect could be transferred to another party in need of reduction of carbon emission. It does not increase profits in any manner and does not need any expenses. In the nature of entitlement to reduce carbon emission, and there was no cost of acquisition or cost of production to get this entitlement. Carbon credit was not in the nature of profit or in the nature of income. The amount realized on transfer of carbon credit was not taxable.
This decision has been followed by Chennai Bench in two cases of Ambika Cotton Mills Ltd [2014 (3) TMI 428 - ITAT CHENNAI] and Sri Velayudhaswamy Spinning Mills P. Ltd [2015 (4) TMI 132 - ITAT CHENNAI]. Even Jaipur Beach has followed this decision in the case of Shree Cement Ltd [2015 (3) TMI 759 - ITAT JAIPUR] No doubt the DR has been able to point out the contrary decision rendered by Cochin Bench of the Tribunal in the case of Apollo Tyres Ltd [2015 (3) TMI 760 - ITAT COCHIN]. Since the decision of Hyderabad Tribunal Bench has already been confirmed by the Hon'ble Andhra Pradesh High Court and there is no contrary decision from any other High Court, in our opinion, we are bound to follow the decision of High Court. Therefore, following this decision we decide this issue against the Revenue.
Deduction u/s 80-IA - Receipt as ‘insurance receipt’ which was disallowed AO since the same was not “derived from” the eligible business of the assessee - HELD THAT:- This issue has not been discussed in detail by Assessing Officer and CIT(A) in their respective orders. Therefore, if it is a case of refund of only insurance premium then assessee would be entitled to deduction u/s 80IA on this amount also. However, this fact need to be verified, therefore, we set aside the order of Ld. CIT(A) and direct the Assessing Officer to verify the nature of insurance receipts and if the same was in the Revenue field, then deduction u/s 80IA should be allowed otherwise the issue may be decided in accordance with law.
Allowance of deduction u/s 80IA in respect of interest subsidy - The effect of the interest subsidy would be that normal interest expenditure would get reduced because of this subsidy. This in turn would lead to increase in normal profits which would entitle to deduction u/s 80IA, therefore, in our opinion, the Ld. CIT(A) has correctly decided this issue and we confirm his order. Thus the appeal is partly allowed for statistical purposes.
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2015 (4) TMI 1345
Violation of principles of natural justice - cross-examination of witnesses - low turnover reported - whether the Sales Tax Appellate Tribunal is correct in accepting the extracts obtained from the check posts without any corroborative evidence in support thereafter? - Whether the Sales Tax Appellate Tribunal is correct in forming the estimation of turnovers with reference to sales with no corresponding consumption of power (electricity in the manufacturing premises of the dealer) and as to denial of opportunity for cross-examination of witnesses?
HELD THAT:- The cross-examination is not as of right for even no worth material placed much less any case made out to afford opportunity in cross-examination to elicit any material required for consideration. In fact, from the questions of law, claimed there is no question of law involved practically. No doubt so far as the estimation of turnovers on the basis of consumption of electricity is concerned, it is only one of the permissible modes and that too when there is no other evidence and only on showing there is any direct nexus between the consumption of electricity and the turn over, without which that cannot be taken as a basis as held by this Court in Venkata Ramana Stone Crushers Co., V. State of Andhra Pradesh [2010 (9) TMI 1095 - ANDHRA PRADESH HIGH COURT].
The assessing authority when taken every possible means to prove the nature of transactions and there were suppression of the estimated turnovers by Nil return or by return showing absolutely low turn over and the same was detected on cross verification from the extracts of the check post and also information from the banks and purchasing dealers which are very clearly discussed in corroboration of one to the other to substantiate with reasons to the best judgment assessment, that too after supply of all the copies and even when the assessee (revision petitioner) failed to deny any of the transactions through the books of accounts, weigh bills and other documentary evidence, but for by a stray sentence of all are as if fake or untrue, that is not suffice. Further more, the assessee who obtained weigh bills from the assessing authority failed to produce the triplicate copies and render account for its use when called for and came up with a plea of records destroyed as if in a fire accident with no any basis even to say muchless to substantiate.
The assessment order clearly speaks with reasons that was confirmed by the Appellate Deputy Commissioner of said version is untrue from the recorded evidence, but intentionally for evasion of tax by filing Nil returns or returns with utterly low turnover, there is for this Court while sitting in revision against the impugned order of the Sales Tax Appellate Tribunal in the two respective revisions nothing to interfere.
Revision dismissed.
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2015 (4) TMI 1344
Accrual of income - Addition retention money - assessee contended that the right to receive the retention money was not accrued to the assessee and hence the same was not shown in its income during the year under consideration - HELD THAT:- As complete facts of the case were not examined and verified including the amount if any incurred by the assessee for business purpose out of the retention amount. However, after passing of the impugned orders, there is a change on the matter in issue and the points have now been decided in favour of the assessee which is also not disputed by the learned DR. However, the authorities below have no occasion to examine the facts of the case in the light of the above decisions cited by the learned Counsel for the assessee.
Both the parties agreed that the matter may be remanded to the file of the AO for reconsideration of the issue in the light of the decision delivered by the Hon'ble Punjab & Haryana High Court [2009 (11) TMI 995 - PUNJAB AND HARYANA HIGH COURT] and the Hon'ble Supreme Court (2009 (5) TMI 16 - SUPREME COURT]. We find force in the submissions of both the parties that the matter requires reconsideration in the light of the above decisions. We accordingly, set aside the orders of the authorities below and restore this issue to the file of the AO for reconsideration of the same in the light of the above decisions cited by the learned Counsel for the assessee.
AO shall also verify the details filed by the assessee on this issue and shall pass reasoned order in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. In the result, these grounds of appeal of the assessee are allowed for statistical purposes.
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2015 (4) TMI 1343
Addition made on account of data processing cost - addition u/s 40(a)(ia) on interest to head office - HELD THAT:- Issue decided in favour of assessee as relying on own case [2014 (3) TMI 726 - ITAT MUMBAI] payment made by the Branch to the H.O. towards reimbursement of cost of data processing cannot be held to be covered within the scope of expression “royalty” under Article 12(3)(a) of the India Belgium DTAA. Accordingly, the conclusion drawn by the learned Commissioner (Appeals) is affirmed. Since we have already held that the data processing cost paid by the assessee does not amount to royalty, consequently, there is no requirement for deducting tax at source on such payment. Therefore, the provisions of section 40(a)(i) will not apply.
Deduction u/s 44C - The data processing cost, pertains to allocation of expenses incurred by the Head Office on prorata basis for the banking application software acquired by the Head Office. Such expenditure does not fall within the meaning of “Head Office Expenses” as provided in section 44C. The nature of expenses as given in section 44C, has to be necessarily in the nature of executive and general administrative expenses only. The conclusion drawn by the learned Commissioner (Appeals) that such expenditure does not fall within the purview of section 44C.
Thus as the assessee had itself disallowed the said amount on account of failure to deduct the tax at source and further disallowance will lead to double disallowance. Thus, the ground no.4 is also dismissed
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2015 (4) TMI 1342
Disallowance of deduction being Sales Tax Entitlement - HELD THAT:- Tribunal has remanded the matter back to the file of Assessing Officer for re-adjudicating the issue afresh as per the directions of the Tribunal given for A.Y. 2007-2008 in the case of the very assessee. Therefore, it cannot be said that the learned Tribunal has committed any error in remanding the matter back to the file of the Assessing Officer, even with respect to the year under consideration. No substantial question of law arises and hence, the present appeal qua proposed question No.(A), as reproduced hereinabove, is hereby dismissed.
Disallowance of deduction u/s 80IA in respect of profits derived from generation of electricity from wind mills - HELD THAT:- Appeal admitted to consider the following substantial question of law:-
“(B) Whether on the facts and circumstances of the case as well as law, the ITAT was justified in deleting the addition made on account of disallowance of deduction u/s 80IA in respect of profits derived from generation of electricity from wind mills?
Disallowance u/s 14A - addition made on account of disallowing interest expenditure and restricting the administrative expenses to Rs.900/- which is not in accordance with the method provided by Rule 8D - HELD THAT:- As the amount involved/tax effect would be Rs.1,49,710/-, on the smallness of amount, we are not inclined to entertain the present appeal with respect to proposed question No.(C). Under the circumstances, present appeal qua proposed question No.(C) is hereby dismissed. However, keeping the question of law, if any, open.
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2015 (4) TMI 1341
Maintainability of petition - availability of alternative remedy - HELD THAT:- Learned counsel for the petitioner upon instruction from his client submitted that necessary notification has now been issued by the State of Jharkhand, the same has also been brought on record by way of Annexure to the counter-affidavit, hence, this writ petition is not pressed at this stage, but, remedy is available under the provisions of Bihar Electricity Duty Act, 1948 and other enabling provisions for availing the benefits of exemptions under the Industrial Policy Act, 2001.
Looking to the notification issued by the State of Jharkhand which is annexed to the counter-affidavit this writ petition (Tax) is disposed of with liberty reserved to the petitioner.
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2015 (4) TMI 1340
Deduction u/s 80P(2)(a)(i) - Tribunal held that the Appellant is a Co-operative Bank and hence, it is not entitled to deduction under Section 80P(2)(a)(i) by virtue of Section 80P(4) - transactions with non members - HELD THAT:- It is undisputed that the transactions with non members are insignificant/miniscule. On the above basis it cannot be concluded that the appellant's principal business is of accepting deposits from public and therefore it is in banking business. In fact, the impugned order erroneously relies upon bye-law 43 of the society which enables the society to receive deposits to conclude that it can receive deposits from public. However, the impugned order relies upon bye-law 43 to conclude that it enables the appellant to receive deposits from any person is not correct. Thus in the present facts the finding that the appellant's principal business is of Banking is perverse as it is not supported by the evidence on record.
So far as the issue of primary object of the appellant is concerned the impugned order gives no finding on that basis to deprive the appellant the benefit of Section 80P of the Act. The impugned order sets out the object clause of the appellant, which has 24 objects but thereafter draws no sequiter to conclude that the primary object is Banking. Consequently there is no occasion to deal with the same as that is not the basis on which the impugned order holds that it is a Primary Cooperative Bank.
In the above view, the alternative contention of the appellant that it is not in the business of Banking as the sine quo non to carry on banking business is a licence to be issued by the Reserve Bank of India, which it admittedly does not have, is not being considered.
As rightly pointed out on behalf of the appellant the word society as referred to bye law 9(d) would include the co-operative society. This is so as the definition of a society under the Co-operative Act is co-operative society registered under the Cooperative Act. Besides the qualifying condition 3 for being considered as a primary Cooperative bank is that the bye laws must not permit admission of any other cooperative society. This is a mandatory condition i.e. the bye laws must specifically prohibit admission of any other cooperative society to its membership.
Revenue has not been able to show any such prohibition in the bye laws of the appellant. Thus even the aforesaid qualifying condition (3) for being considered as a primary cooperative bank is not satisfied. Thus, the three conditions as provided under Section 5 (CVV) of the Banking Regulation Act, 1949, are to be satisfied cumulatively and except condition (2) the other two qualifying conditions re not satisfied. Ergo, appellant cannot be considered to be a co-operative bank for the purposes of Section 80P(4) of the Act. Thus, the appellant is entitled to the benefit of deduction available under Section 80P(2)(a)(i) of the Act.
The contention of the revenue that the appellant is not entitled to the benefit of Section 80P(2)(a)(i) of the Act in view of the fact that it deals with non-members cannot be upheld. This for the reason that Section 80P(1) of the Act restricts the benefits of deduction of income of co-operative society to the extent it is earned by providing credit facilities to its members. Therefore, to the extent the income earned is attributable to dealings with the non-members are concerned the benefit of Section 80P of the Act would not be available. In the above view of the matter, at the time when effect has been given to the order of this Court, the authorities under Act would restrict the benefit of deduction under Section 80P of the Act only to the extent that the same is earned by the appellant in carrying on its business of providing credit facilities to its members. - Decided in favour of assessee.
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2015 (4) TMI 1339
Assessment in the name of a company which had been amalgamated - corporate death of an entity upon amalgamation - Curable defect u/s 292B - HELD THAT:- CIT (A) had accepted the assessee’s plea that the notice and consequent search assessment proceedings under Section 153 (c) was void and unsustainable given the fact that the original assessee had amalgamated and transferred with B.S. Infratech Pvt. Ltd. during assessment years 2009-10.
The connected appeals were the subject matter of a previous order of this Court [2014 (11) TMI 1257 - DELHI HIGH COURT]. noticed and relied upon the judgment in Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] No question of law, therefore, arises; the appeal is accordingly dismissed.
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2015 (4) TMI 1338
Smuggling - Charas - Opium - Contraband Item - false implication, pleading innocence - offences punishable under Section 29 read with Sections 20(b)(ii)(C) and 18 of the NDPS Act - HELD THAT:- Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery of the contraband till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, hence, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, therefore, it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility.
The factum of parcel, Ex. P-1 containing charas, Ex.P6 and parcel, Ex.P-2 containing opium, Ex.P-9, weighing respectively 4 Kg, 800 grams and 300 grams having been recovered from the exclusive and conscious possession of the accused at the site of occurrence under recovery memo Ex.PW1/D has been clinchingly proved by the testimonies of the official witnesses. The testimonies of the official witnesses, when they have deposed in tandem, harmony and in unison qua the apposite proceedings relating to search, recovery and seizure of items of contraband having commenced and concluded at the site of occurrence besides when their testimonies are bereft of any intra se or inter se contradictions, as such inspire the confidence of this Court, to hence, prod it to record findings of conviction against the accused - The non association of independent witnesses in the apposite proceedings by the Investigating Officer would not have either rendered flawed not would it have imbued the genesis of the prosecution case with fatality, yet when despite availability, the Investigating Officer omitted to or did not concert to make arduous efforts to mobilize or elicit their participation in the apposite proceedings at the site of occurrence, marshals an inference that his lack of concert to solicit the participation of the independent witnesses in the apposite proceedings at the site of occurrence, was prodded by an oblique motive on the part of the Investigation Officer to conceal the truth or also gives leeway to an inference that the proceedings as conducted at the site of occurrence are imbued with intransparency, hence, vitiated.
Lack of sincere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated.
Thus, the concomitant deduction is that the prosecution has been unable to prove the guilt of both the accused - the findings of conviction, recorded by the learned trial Court below, are not based on a mature and balanced appreciation of evidence on record.
Both the accused/appellants are acquitted of the offences charged. Fine amount, if any, deposited by the accused/appellants be refunded to them - appeal allowed - decided in favor of appellant.
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2015 (4) TMI 1337
Unexplained jewellery - unaccounted jewellery - jewellery, which was found to be not matching in any of these four criteria with the assessee’s valuation report, was therefore seized - comparison between the valuation of the assessee and the valuer of the department - HELD THAT:- DR could not controvert the conclusion of the CIT(A) that minor difference in description of jewellery in two valuation reports is possible, because of difference in nomenclature used by two valuers, the minor difference in number of small diamonds is possible on the facts of the case, because of human counting error or because of normal wear and tear, and nominal difference in weight could also be on account of two different perceptions of jewelers. We, thus, do not find any force in the appeal of the Revenue, and accordingly, the same is dismissed.
Whether gold jewellery to the extent of gross weight already disclosed should not be treated as undisclosed, because description of the jewellery keep on changing on remaking of jewellery? - We find that no finding has been recorded by the lower authorities as to whether the jewellery found during the course of search, which were not tallied with the description of jewellery given in the valuation report filed with wealth-tax return, could be made from remaking of untallied jewellery stated in the valuation report filed along with wealth-tax return or not.
We, further, observe that the assessee also could not bring any material before us to show that the same was possible. In the above circumstances, in our considered view, it shall be in the interest of justice to restore this issue back to the file of the AO for deciding the issue afresh after taking into consideration the above cited decision, and actual position in the light of the discussion made above. Needless to mention that, the AO shall allow reasonable and proper opportunity of hearing to the assessee before adjudicating the issue afresh. Thus, this ground of the cross objection of the assessee is allowed for statistical purpose.
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2015 (4) TMI 1336
Murder or culpable homicide - appellant pleaded that the fire was accidental - case of appellant is that Appellant went out to answer nature's call and when he returned, he saw his wife coming out of the house ablaze and the Appellant immediately rushed and tried to extinguish the fire due to which his hands also got burnt - whether the act of the accused pouring water would mitigate the offence of murder? - HELD THAT:- Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances.
From the facts and circumstances of the instant case, it is evident that: (i) there was a homicide, namely the death of Saraswatibai; (ii) the deceased was set ablaze by the Appellant and this act was not accidental or unintentional; (iii) the post mortem certificate revealed that deceased died due to shock and septicaemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased - When there is clear evidence as to the act of the accused to set the deceased on fire, absence of pre-meditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence.
Upon analysis of the evidence adduced by the prosecution, courts below recorded concurrent findings that the accused caused the death of deceased Saraswatibai and convicted the Appellant. It is well settled that concurrent findings of fact cannot be interfered with unless the findings are perverse and unsupportable from the evidence on record - the appeal fails and is dismissed.
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2015 (4) TMI 1335
Transfer u/s 127 - "reasonable opportunity of being heard" - HELD THAT:- Merely stating that the transfer is for the purpose of coordinating in itself is not a ground to consolidating the cases at one place. The cause of action has arisen within the State of Himachal Pradesh. The convenience of the party cannot be overlooked. The order passed by the competent authority transferring cases is a quasi judicial order and not an administrative order. The decision to transfer the case must comply with the provisions of section 127(2)(a) - The principles of natural justice have to be complied with at every stage. Violation of principles of natural justice at the initial stage cannot be cured at the subsequent stage. Moreover, the order should be self-contained/speaking and not merely a paper-decision. Recording of reasons is also sine qua non, as per mandatory provisions of section 127(2)(a) of the Income-tax Act.
We are of the considered opinion that the petitioners at least should know the gist of enquiry carried out against them and were also liable to be supplied adverse material gathered against them during assessment proceedings or information available, in order to enable them to represent their cases effectively before the Commissioner of Income-tax. The adverse material gathered against the petitioners by way of inquiry, information etc. was to be made available before hand and not at the time of assessment proceedings. There is a difference between pre-decisional hearing and post-decisional hearing. In the instant case, taking into consideration the legal/factual assessment involved, petitioners are entitled to pre-decisional hearing in order to contest the show cause notice(s) dated 20.1.2015. There is a prima facie case and balance of convenience is also in favour of the petitioners.
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2015 (4) TMI 1334
Disallowance of interest as per proviso to sec. 36(1)(iii) - HELD THAT:- A bare perusal of the proviso to section 36(1)(iii) clearly reveals that there should be specific finding that the amount of interest paid is in respect of capital borrowed for acquisition of an asset for extension of existing business or profession. Therefore, direct nexus between the capital borrowed and the acquisition of asset has to be established before proviso can be invoked. In the present case the AO has not established this nexus.
The proviso was wrongly invoked by him. Further, we find that it was specifically stated before the AO that there was introduction of fresh capital on which no claim of any interest had been made in the books. AO has not at all taken into consideration as to how this fund was utilized. Further, assessee has also pointed out that it had received interest free loan, which has been reproduced earlier. In any case, the assessee’s claim was that the entire borrowed funds had been utilized for business purposes and not for acquisition of fixed assets. In view of above discussion, we do not find any reason to interfere with the order of ld. CIT(A) and the same is upheld.
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2015 (4) TMI 1333
Exemption u/s 11 - charitable activity u/s 2(15) - applicability of proviso of section 2(15) - Registration u/s 12AA - denial of exemption on the ground of commercial transactions - HELD THAT:- It is agreed between the parties that the questions of law as raised in these appeals stand decided in favour of the development authority in the case of CIT v Lucknow Development Authority [2013 (9) TMI 570 - ALLAHABAD HIGH COURT] as well as in connected matters as per the judgment.
We have also been informed that the Income Tax Appellate Tribunal in the case of assessee himself [2015 (2) TMI 287 - ITAT DELHI] has followed the law laid down in the case of CIT v Lucknow Development Authority (Supra) and has restored the registration granted to the assessee under Section 12- AA of the Income Tax Act. Appeals are dismissed as infructuous.
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2015 (4) TMI 1332
Disallowance of interest payable claimed - interest payable, which was not paid during the year - interest payable to the Government of Tamilnadu and M/s Infrastructure Leasing and Financial Services - HELD THAT:- As decided in own case[2014 (6) TMI 1062 - ITAT CHENNAI] neither the Government of Tamil Nadu nor Infrastructure Leasing & Financial Services Ltd. IL&FS fall within the definition of Public Financial Institution. Hence, the learned Commissioner of Income Tax (Appeals)’s premise that Explanation 3(c) of Section 43B(d) is applicable, is erroneous. As we have already held earlier that as per the reading of loan agreement, the interest amount has very much accrued and the liability has crystallized. In this view of the matter, we hold that order of the authorities below is liable to be set aside and assessee's claim be allowed
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2015 (4) TMI 1331
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2015 (4) TMI 1330
Allowability of Development fee - HELD THAT:- We have, by a separate order and judgment passed today in Income Tax Appeal [2015 (5) TMI 656 - BOMBAY HIGH COURT], dismissed the said two appeals. For the reasons recorded while dismissing the said appeals, each of the above appeals also stand dismissed.
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2015 (4) TMI 1329
Special audit u/s 142 (2A) - Eligible reason for coming to the conclusion that it was necessary in the interest of revenue to direct special audit - HELD THAT:- If cause is shown then there must be some reasons in the order directing special audit which may disclose application of mind to the explanation furnished. Reasons must be disclosed as to why it is appropriate in the facts of the case to direct special audit in exercise of power under Section 142 (2A) of the Income Tax Act.
The conclusion drawn by us hereinabove is supported by a Division Bench judgment of the High Court in the case of A.T.S. Infrastructures Ltd. [2013 (6) TMI 276 - ALLAHABAD HIGH COURT]. Reasons are hard beats of the order and in absence of reasons the order become life less. We have examined the order impugned and we found that it is not supported by cogent reasons that have been non consideration of the explanation submitted by the assessee.
For the said reasons only the order impugned passed by the Assistant Commissioner along with approval order of the Commissioner dated 29th December, 2008 cannot be legally sustained and are hereby quashed.
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2015 (4) TMI 1328
Dishonor of Cheque - acquittal of he accused - illegal gratification - High Court found that the prosecution had established the case beyond any doubt and that the trial court had not considered the evidence of material witness in proper perspective - HELD THAT:- The signature of surety Sidharaju was obtained in the Bail Bond Register on 1.12.2005 but that of PW-3 complainant was not allowed to be taken. Such signature was taken only after the exchange of money as stated by PW-3 and PW-1. Moreover, no entry was made in the Station Diary Ext. P-5 as stated by PW-6 Investigating Officer as well as PW-5 Basavraju. The Trial Court was therefore not justified in concluding that everything stood completed on 1.12.2005 itself - As regards these facets of the matter, there is complete consistency between PW-1 Umashankar and PW-3 complainant and as regards other features of the matter i.e. after the raiding party had entered the Police Station, they also stand corroborated by the other witnesses.
The immediate explanation offered by the Appellant was that the money was thrust into his pocket but this was given up and the Appellant remained silent. In the absence of any evidence offered by the Appellant to explain the circumstances, the presumption Under Section 20 of the Act was not in any way rebutted and the prosecution case stood completely established - the High Court was conscious that it was considering the appeal against acquittal but it was justified in interfering in the matter and reversing the acquittal. There is no infirmity in the view taken by the High Court.
Appeal dismissed.
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