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Showing 21 to 40 of 1070 Records
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2013 (5) TMI 1060
Issues Involved:
1. Appeal against acquittal.
2. Discrepancies in evidence.
3. Whether a 100% burnt person can make a dying declaration or put a thumb impression.
Summary:
1. Appeal against acquittal:
The Supreme Court examined the appeal against the High Court's judgment that acquitted the Respondents u/s 498-A and 302 r/w Section 34 of the Indian Penal Code. The High Court had set aside the conviction on the grounds that the dying declaration of the deceased, who had 100% burn injuries, was unreliable without a doctor's certificate of fitness. The Supreme Court reiterated that an appellate court can reverse an acquittal if the findings are perverse or contrary to evidence, emphasizing the presumption of innocence in favor of the accused.
2. Discrepancies in evidence:
The Court noted that discrepancies, embellishments, and improvements are common in criminal cases due to errors in observation, memory, or mental disposition. The credibility of witnesses must be assessed, and marginal variations in their statements should not be considered as contradictions unless they materially affect the trial. The Court emphasized that exaggeration does not necessarily render evidence unreliable.
3. Whether a 100% burnt person can make a dying declaration or put a thumb impression:
The Court referred to precedents where dying declarations made by individuals with severe burn injuries were deemed reliable. It held that a dying declaration can be oral or written, and the person recording it must be satisfied that the declarant is in a fit state of mind. Certification by a doctor is a rule of caution but not mandatory. The Court found the dying declarations in this case to be voluntary and truthful, despite the absence of a doctor's certificate. The thumb impressions on the FIR and dying declaration had ridges and curves, indicating they were made by the deceased.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the trial court's conviction of the Respondents u/s 498-A and 302 r/w Section 34 of the Indian Penal Code. The Respondents were directed to surrender within four weeks, failing which the Chief Judicial Magistrate, Damoh, Madhya Pradesh, was instructed to take them into custody.
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2013 (5) TMI 1059
The Delhi High Court issued an order for a case, with Mr. S. Ganesh representing the petitioner and Mr. Rajeeve Mehra representing the respondent. Notice accepted, counter affidavit to be filed in four weeks, rejoinder affidavit in three weeks. Special Audit to continue, but report not to be served until next hearing. No assessment order to be passed until next hearing. Case to be listed for final disposal on 22.07.2013.
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2013 (5) TMI 1058
Issues Involved:1. Whether the cheques in question were issued in discharge of any debt or other liability or as collateral security for a future liability. 2. Whether proceedings could be initiated against the third petitioner, merely on the basis of her designation as a director of the petitioner company. Summary:Issue 1: Cheques Issued in Discharge of Debt or as SecurityThe petitioners argued that the cheques in question were furnished as security for the performance of the respective contracts and not in discharge of any debt or other legal liability. They relied on the apex court's decision in Narayana Menon vs. State of Kerala (2006) 6 SCC 39, stating that if a cheque is issued for security, it would not come within the purview of Section 138 of the NI Act. The respondent contended that the cheques were issued during a contractual relationship and were dishonoured due to insufficient funds, thus justifying the initiation of action under Section 138 of the NI Act. The court reviewed various case laws, including Narayana Menon, M.M.T.C. Limited vs. Medchl Chemicals and Pharma Private Limited, and others, to determine the nature of the cheques. It concluded that the question of whether the cheques were issued as security or in discharge of a debt would require examination at trial. The court emphasized that presumptions under Section 118(a) and 139 of the NI Act favor the complainant, and the accused must rebut these presumptions at trial. Issue 2: Proceedings Against the Third PetitionerThe court examined whether the third petitioner, designated as a director, was involved in the company's affairs and the transactions in question. It concluded that there was no evidence to show her involvement. Therefore, the proceedings against the third petitioner were quashed. However, the court found no grounds to interfere with the proceedings against petitioner no. 1 and 2. Conclusion:The petitions were partly allowed. The proceedings against the third petitioner were quashed, while the petitions concerning petitioner no. 1 and 2 were dismissed. The order of stay granted earlier was vacated.
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2013 (5) TMI 1057
Issues involved: Application for transit anticipatory bail u/s 438 of Cr.P.C, 1973 in a case involving charges u/s 302, 120B, 34 of IPC and u/s 25 of Arms Act.
Summary:
Issue 1: Application for transit anticipatory bail
The applicant, Jawahar @ Suresh Bijlani, sought transit anticipatory bail fearing arrest in a case registered at police station Washi, Navi Mumbai. The charges against him included sections 302, 120B, 34 of IPC, and section 25 of Arms Act. The applicant, a resident of Indore, pleaded for bail to take care of his cancer-stricken, blind father aged 77 years, who required urgent surgery. The applicant claimed there was no direct or indirect evidence against him.
Issue 2: Grant of transit bail
After considering the circumstances, the court allowed the prayer for grant of transit bail. The applicant was directed to execute a personal bond of Rs.1,00,000/- and furnish one surety of equal value. The conditions imposed included making himself available for interrogation, refraining from influencing witnesses, and not leaving India without court permission. The transit bail was granted for a period of 60 days, until 15.7.2013.
This judgment by the Madhya Pradesh High Court addressed the urgent need for transit anticipatory bail in a case involving serious charges, balancing the applicant's concerns for his father's health with the legal requirements for bail.
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2013 (5) TMI 1056
Issues involved:
The judgment involves the following Issues:
1. Disallowance of tenancy vacation charges as contingent liability.
2. Treatment of sale consideration as contingent receipt.
Issue 1: Disallowance of tenancy vacation charges as contingent liability:
The assessee entered into agreements for sale of tenanted property, with the obligation to provide vacant possession by a specified date. The AO disallowed Rs.1,23,40,000 as tenancy vacation charges, deeming them contingent until the tenants vacated the property. The assessee argued that the expenses were part of the sale transaction and should be allowed. The CIT(A) upheld the AO's view. The Tribunal noted that the transfer of property had taken place as per the deed of conveyance, and the expenses were associated with the sale transaction. The issue was remanded to the AO to verify the agreements with tenants for granting the deduction.
Issue 2: Treatment of sale consideration as contingent receipt:
The assessee contended that if the expenses were considered contingent, then the sale consideration should also be treated as contingent. The Revenue argued that the transfer was complete upon possession, making it non-contingent. The Tribunal observed that the sale was completed as per the deed of conveyance, and the expenses were integral to the transaction. The matter was remanded to the AO for verification of agreements with tenants to allow the deduction.
In conclusion, the Tribunal allowed the assessee's appeal for statistical purposes, remanding the issue of tenancy vacation charges back to the AO for verification of agreements to determine the eligibility for deduction.
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2013 (5) TMI 1055
Issues involved:
The judgment involves issues related to the grant of exemption under section 11 of the Income-tax Act, 1961.
ITA Nos.565 & 566/LKW/2011: A.Ys 2004-05 & 2005-06:
The Revenue appealed against the order of the ld. CIT(A) regarding the validity of the return of income filed beyond the specified period under section 148, restriction of action to deductions u/s 10(23C)(vi), and the claim for exemption u/s 11 of the Act. The Tribunal found that the return was filed late but held that it cannot be considered non-est in law. The ld. CIT(A) granted exemption under section 11 without verifying if there was any violation of section 13. The Tribunal set aside the order and directed the Assessing Officer to re-examine the exemption claim in light of relevant provisions after affording proper opportunity to the assessee.
ITA No. 568/LKW/2011: A.Y. 2008-09:
The Revenue challenged the ld. CIT(A)'s decision on the exemption claim under section 11. The Tribunal noted that the original return did not include the exemption claim, which was later made in a revised return. The ld. CIT(A) granted exemption without examining if there was any violation of section 13. The Tribunal held that the ld. CIT(A) should have either examined the claim as per law or sought a remand report. As such, the Tribunal set aside the order and directed the Assessing Officer to re-examine the exemption claim in light of section 13 after providing an opportunity to the assessee.
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2013 (5) TMI 1054
Issues involved: Non-observance of the principle of natural justice in passing assessment orders u/s 40(2) read with Section 35(7) of the Jharkhand Value Added Tax Act, 2005 without affording opportunity of hearing to the writ petitioner.
Judgment Summary:
1. The writ petitions were decided collectively due to the common issue of non-observance of natural justice in passing assessment orders without providing the petitioner an opportunity to be heard. The Assessing Officer created a substantial liability without proper basis, considering market values not reflective of the petitioner's actual situation. The petitioner's contentions regarding pricing discrepancies were not adequately addressed, highlighting a clear violation of natural justice principles.
2. The Officer-in-charge's legal submissions in the affidavit cannot bind the adjudicatory authorities, emphasizing the need for a fair hearing and independent decision-making process. The orders were set aside due to the lack of opportunity given to the petitioner and the improper consideration of materials in the assessment process.
3. As no opportunity of hearing was granted in these matters, the orders dated 9.2.2013 were deemed invalid and the cases were remanded for proper assessment.
4. The Assessing Officer was cautioned to exercise diligence in assessments to avoid errors that could lead to significant revenue losses and legal challenges. An example was cited where incorrect assumptions were made, resulting in a substantial tax liability based on flawed reasoning.
5. The Assessing Officer's methodology in determining market value was questioned, emphasizing the importance of considering actual transaction details rather than relying solely on external benchmarks like IBM rates.
6. The observations made were not on the merit of the case but aimed at highlighting potential flaws in the assessment process that could have been rectified with proper assistance from the petitioner.
7. Officers were reminded of their individual responsibility in conducting assessments fairly and without malice, as any serious faults could lead to personal liability.
8. Reference was made to a Supreme Court judgment, but no specific comments were made as the issues of merit were left for the Assessing Officer to address.
9. The writ petitions were allowed, setting aside the impugned orders and remanding the cases back to the Assessing Officer for proper consideration.
10. A future date was set for the parties to appear before the Assessing Officer, with directions to provide necessary documents, allow evidence presentation, and ensure a fair hearing process. The Commissioner was instructed to circulate the order to all relevant authorities to emphasize the importance of fair and diligent assessment practices.
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2013 (5) TMI 1053
Issues involved: Interpretation of Section 80P of the Income-tax Act regarding treatment of income from investments made by registered Co-operative Societies providing credit facilities to members.
Summary:
The High Court addressed the issue of whether income earned by registered Co-operative Societies from investments made beyond their members should be treated as profits and gains of business attributable to providing credit facilities to members, u/s 80P of the Income-tax Act. The Societies contended that the funds available to them were a mutual fund expanded by mutuality, thus the income should be considered as part of their business profits. However, the Court noted that the investments were made with third parties who contributed to the income, not the members, and therefore, the income could not be considered as profits from providing credit facilities. The Court referred to precedents and held that for income to be considered business profits, it must be derived from investments that are part of the business requirement. As the investments in question were not compulsory and made with third parties, the income earned could not be treated as profits attributable to providing credit facilities. The Court allowed the appeals, set aside the Tribunal and Commissioner of Appeals' judgments, and restored the assessment orders.
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2013 (5) TMI 1052
Issues Involved:
1. Interpretation of Section 141 'third' vis-à-vis Section 149 IPC.
2. Delay in forwarding the FIR to the Magistrate.
3. Impact of communal tension on the conviction.
4. Alleged lacunae in the prosecution's case.
Summary:
1. Interpretation of Section 141 'third' vis-à-vis Section 149 IPC:
The court addressed the interpretation of Section 141 'third' and its relation to Section 149 IPC. It was argued that the term "other offence" in Section 141 'third' should only relate to offences similar to mischief or criminal trespass. However, the court rejected this narrow interpretation, stating that the term "other offence" includes all offences punishable under the IPC. The court emphasized that Section 40 IPC defines "offence" broadly, and thus, the term in Section 141 'third' should be understood to encompass any offence punishable under the IPC. Consequently, the convictions under Sections 302/149, 307/149, 147, and 148 IPC were upheld.
2. Delay in forwarding the FIR to the Magistrate:
The court examined the delay in forwarding the FIR to the Magistrate, which was sent three days after the incident. It was argued that this delay could indicate an antedated FIR. However, the court found no prejudice caused to the accused due to this delay. It referenced previous judgments, stating that unless the delay causes prejudice or affects the investigation's integrity, it does not vitiate the prosecution's case. The court concluded that the FIR was recorded promptly, and the investigation commenced without delay.
3. Impact of communal tension on the conviction:
The appellants argued that communal tension in the village led to their false implication. The court noted that there was no substantial evidence to support this claim. The investigating officer's statement about communal tension was not corroborated by any other evidence. The court found that the claim of communal tension was a desperate and meritless argument, as it was not substantiated by any witnesses or records.
4. Alleged lacunae in the prosecution's case:
The appellants raised several points alleging deficiencies in the prosecution's case, such as the delay in filing the FIR, non-examination of independent witnesses, and non-recovery of bullets or pellets. The court found these arguments unconvincing. It noted that the injured witnesses' testimonies were credible and supported by medical evidence. The court also stated that the absence of independent witnesses did not undermine the prosecution's case, as the injured witnesses' accounts were consistent and reliable. The court dismissed the contention that the non-recovery of bullets or pellets affected the case, as the evidence of firearm injuries was well-established.
Conclusion:
The Supreme Court dismissed the appeals, affirming the convictions and sentences imposed by the lower courts. The court directed the appellant Soma, who was on bail, to surrender before the Magistrate to serve the remaining sentence.
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2013 (5) TMI 1051
Issues Involved:
1. Jurisdiction to levy penalty u/s 271(1)(c) of the IT Act.
2. Merits of the penalty levied for non-disclosure of income from ESOP shares.
Summary:
1. Jurisdiction to levy penalty u/s 271(1)(c) of the IT Act:
The department appealed against the CIT (A)'s order deleting the concealment penalty of Rs. 33,04,510/- levied on the assessee. The Ld. CIT (A) observed that the jurisdiction to record satisfaction and levy the penalty with respect to additions made in the order passed u/s 263 by the CIT-XVI, New Delhi, was with the CIT alone. The CIT (A) noted that the power to impose penalty was conferred upon the Commissioner by the Finance Act 2002 w.e.f. 01.06.2002. The CIT (A) held that the recording of satisfaction and the levy of penalty must be executed by the authority who made the addition. Since the CIT made the disallowance/addition, it was the CIT who had the jurisdiction to record satisfaction about concealment of income. The Assessing Officer (AO) merely gave effect to the CIT's order and was not empowered to initiate penalty proceedings. The CIT (A) concluded that the penalty order passed by the AO was without jurisdiction and null and void.
2. Merits of the penalty levied for non-disclosure of income from ESOP shares:
On merits, the CIT (A) found that the assessee's belief that the amount received from the sale of ESOP shares was not taxable was genuine and bonafide. The assessee relied on the Supreme Court judgment in 'CIT vs. B.C. Srinivasa Setty', 128 ITR 294 (SC), which held that capital gain could only be computed when the cost of acquisition of the asset sold is ascertainable. The CIT (A) noted that there was confusion regarding the taxability of the amount on the sale of ESOP shares, as evidenced by the Third Member decision in 'Garrick D'Silva vs. Jt. CIT', 105 TTJ 445 (Del) (TM). The Mumbai Bench in 'Bomi S. Billimoria vs. ACIT', 124 TTJ 960 (Mum) also held that no capital gain accrued when the date of exercise of option and the date of sale were the same. The CIT (A) concluded that the assessee's belief was not unfounded and that the penalty was not leviable on merits.
Conclusion:
The Tribunal found no error in the CIT (A)'s order. Since the addition was made by the CIT while passing the order u/s 263, it was for the CIT to record satisfaction and levy penalty, not the AO. The Tribunal confirmed the CIT (A)'s order, holding that the penalty order passed by the AO was without jurisdiction and that the penalty was not leviable on merits. The appeal filed by the Department was dismissed.
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2013 (5) TMI 1050
Forgery Of documents - Cheating - Seeking grant of regular bail u/s 439 CrPC - Offence punishable u/s 409/ 420/ 467/ 468/ 471/ 120-B IPC and Sections 13(1)(d)/13(2) of the Prevention of Corruption Act - HELD THAT:- In view of the facts, Petitioners are entitled to grant of bail pending trial on stringent conditions in order to allay the apprehension of the investigating agency. It is not necessary to canvass and go into the details of various other issues canvassed by learned counsel for the parties and the cases relied upon by learned counsel for the petitioners in support of their contentions. I have not expressed any opinion on the merit of the case. In the result, petitions are allowed, Petitioners be admitted to bail on their executing bail bonds with solvent sureties each in the sum of 10.00 lac to the satisfaction of trial Court, Bathinda, on the following conditions:-
a) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority.
b) They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and also to the State Vigilance Bureau and request that they may be permitted to be present through the counsel.
c) They will not dispute their identity as the accused in the case.
d) They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear to an affidavit. If they have already surrendered before the trial Court, that fact should also be supported by an affidavit.
e) I reserve liberty to the State Vigilance Bureau to make an appropriate application for modification/recalling this order, if for any reason, the petitioners violate any of the conditions imposed by this Court.
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2013 (5) TMI 1049
Issues involved: Appeal filed by revenue regarding depreciation allowance directed by CIT (Appeals) for a registered society u/s 12A running schools.
Summary:
The Appellate Tribunal ITAT Delhi heard appeals filed by the revenue challenging the direction of CIT (Appeals) to allow depreciation for a registered society u/s 12A of the Income-tax Act, 1961, operating schools. The society claimed depreciation on its assets, which was initially disallowed by the Assessing Officer but later granted by CIT (A). The issue was supported by various decisions of coordinate Benches of ITAT and the judgment of the Hon'ble Delhi High Court in a similar case. The High Court decisions emphasized that depreciation of assets owned by charitable institutions/trusts is a necessary deduction on commercial principles. The Tribunal, in line with the consensus of judicial opinion, dismissed the revenue's appeal as there was no contrary view presented, and no substantial question of law was framed. The appeals were therefore dismissed, and no costs were awarded.
In conclusion, the Tribunal upheld the CIT (Appeals) decision to allow depreciation for the registered society, emphasizing the necessity of considering depreciation as a deduction for charitable institutions/trusts on commercial principles.
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2013 (5) TMI 1048
The Calcutta High Court dismissed the appeal as the appellant did not press it, following a judgment of the Delhi High Court. The appellant's advocate submitted that a similar appeal was not entertained earlier by the court.
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2013 (5) TMI 1047
Issues Involved:
1. Validity of reassessment proceedings u/s 147/148 of the Income Tax Act, 1961.
2. Denial of deduction u/s 80IB(10) of the Income Tax Act, 1961.
Summary:
1. Validity of Reassessment Proceedings u/s 147/148:
The primary issue was whether the reassessment proceedings initiated by the Assessing Officer (AO) u/s 147/148 were valid. The assessee argued that the reassessment was based on a mere change of opinion, which is not permissible under the law. The AO had initially accepted the assessee's claim for deduction u/s 80IB(10) during the original assessment u/s 143(3). However, the AO later initiated reassessment proceedings on the basis of a survey conducted u/s 133A, which revealed that the assessee had not completed the construction of the housing project as per the approved plans. The Tribunal held that the AO did not possess any fresh tangible material to justify the reassessment and that the initiation of proceedings was merely a review of the earlier assessment, which is impermissible as per the Supreme Court's ruling in the case of Kelvinator of India Ltd. Consequently, the reassessment proceedings were quashed as being invalid.
2. Denial of Deduction u/s 80IB(10):
Given that the reassessment proceedings were quashed, the Tribunal did not adjudicate on the merits of the denial of deduction u/s 80IB(10). The Tribunal noted that the AO had initially allowed the deduction after scrutiny and that the facts regarding the sale of plots and the completion of the housing project were already known to the AO during the original assessment. Therefore, the reassessment was not justified, and the denial of deduction became a moot point.
Conclusion:
The appeals were allowed, and the reassessment orders for the assessment years 2003-04, 2004-05, and 2005-06 were quashed. The Tribunal held that the reassessment proceedings were invalid due to the absence of any fresh tangible material and were based on a mere change of opinion. Consequently, the grounds raised on the merits of the deduction u/s 80IB(10) were rendered academic and were not adjudicated.
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2013 (5) TMI 1046
Issues Involved:
The judgment involves an appeal against the order of the Commissioner of Income Tax (A)-I, Ludhiana dated 08.10.2010 relating to assessment year 2003-04 under section 154 of the Income Tax Act, 1961.
Issue 1: Recomputation of Deduction under Section 80HHC of the Act
The appeal challenges the action of considering TUF subsidy reimbursement as Interest from Investments Income while calculating deduction under section 80 HHC of the Income Tax Act. The original assessment was completed under section 143(3) of the Act, where the Assessing Officer recomputed the deduction under section 80HHC at a lower amount. Subsequently, a notice under section 154 was issued to the assessee regarding the interest received, leading to a further recomputation of the deduction. The Assessing Officer contended that 90% interest received needed to be deducted from the profits of the business. However, the nature of the interest credited included reimbursement under the TUF scheme and a refund of excess interest charged by the bank. The Tribunal held that the issue of computation of deduction under section 80HHC in relation to the interest received was debatable, and rectification under section 154 could not be applied. Consequently, the order passed under section 154 was cancelled, and the Assessing Officer was directed to allow the deduction under section 80HHC at the originally computed amount.
Conclusion:
The appeal filed by the assessee was allowed, and the order passed under section 154 of the Act was cancelled, directing the Assessing Officer to allow the deduction under section 80HHC at the originally computed amount.
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2013 (5) TMI 1045
Issues involved: Stay of further proceedings in multiple appeals and writ petition pending before different courts.
The Supreme Court, comprising Hon'ble Mr. Justice Jagdish Singh Khehar, ordered a stay on all further proceedings in Appeal Nos. 42/2013, 48/2013, 49/2013, and 50/2013, as well as in Writ Petition No. 2088/2013. The Court decided to examine whether the respondents had complied with the conditions specified in a previous judgment dated 31st August, 2012. The stay was granted to assess the compliance with the said conditions.
The Court directed that the proceedings in various appeals and the writ petition be stayed until the question of compliance with the conditions outlined in the previous judgment is determined. This decision was made to ensure a thorough examination of whether the respondents had adhered to the conditions set forth in the Court's earlier ruling from August 2012. The stay was deemed necessary to evaluate the level of compliance with the specified conditions.
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2013 (5) TMI 1044
Issues involved: Appeal against deletion of unexplained cash credit u/s 68 of the Income Tax Act, 1961, acceptance of self-serving documents, denial of opportunity to examine additional evidence, and request for re-examination of fresh evidences.
Issue 1: Unexplained Cash Credit u/s 68
The appellant, a proprietor of a trading business, declared income but faced scrutiny due to a cash deposit discrepancy. Despite explanations, the Assessing Officer added an unexplained cash credit of Rs. 12,05,500. The CIT(A) deleted this addition citing the availability of cash from withdrawals, sales, and debtors, emphasizing the rotation of money. The deletion was based on the failure to credit the appellant for cash withdrawals and redeposits, supported by evidence. The Tribunal upheld the CIT(A)'s decision, noting the appellant's cash book substantiating the source of bank deposits.
Issue 2: Acceptance of Self-Serving Documents
The CIT(A) accepted the appellant's submissions regarding cash sources, highlighting the failure of the Assessing Officer to credit cash withdrawals and redeposits. The Tribunal found the CIT(A)'s reasoning sound, emphasizing the appellant's evidence and the proper maintenance of a cash book to support the cash flow into the bank account. The Tribunal dismissed the revenue's appeal, affirming the deletion of the unexplained cash credit.
Issue 3: Denial of Opportunity to Examine Additional Evidence
The Assessing Officer requested specific details and justification for the cash deposits, but the appellant's explanations were deemed incomplete. Despite subsequent submissions and a cash flow statement, the Assessing Officer maintained the unexplained cash credit. The CIT(A) overturned this decision, considering the appellant's evidence and reasoning. The Tribunal found no fault in the CIT(A)'s order and dismissed the revenue's appeal.
Issue 4: Re-examination of Fresh Evidences
The revenue sought to set aside the CIT(A)'s order and have the matter re-examined by the Assessing Officer. However, the Tribunal upheld the CIT(A)'s decision to delete the unexplained cash credit, emphasizing the appellant's proper documentation and the failure of the Assessing Officer to credit cash withdrawals and redeposits. The Tribunal found no grounds to overturn the CIT(A)'s order and dismissed the revenue's appeal.
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2013 (5) TMI 1043
Issues involved:
The appeal concerns the correctness of allowing set off of short term capital loss chargeable to tax u/s 111A at 10% instead of the normal rate of 30%.
Issue 1 - Set off of Short Term Capital Loss:
The issue before the tribunal was whether the CIT(A) correctly allowed the set off of short term capital loss chargeable to tax u/s 111A at 10% instead of the normal rate of 30%.
The AR cited relevant decisions supporting the assessee's claim, including First State Investment (Hong Kong) Ltd., Fidelity Investment Trust Fidelity Overseas Fund, and American Century Twentieth Century International Discovery Fund.
The tribunal examined the language of sub-section (2) of section 70 and held that the choice of setting off short-term capital loss against short-term capital gain is with the assessee. The tribunal emphasized that the computation of income precedes the application of the tax rate.
Based on the cited cases and the analysis of the provisions, the tribunal overturned the CIT(A)'s order and allowed the set off of short term capital loss as claimed by the assessee.
Issue 2 - Similar Judgments Supporting Assessee's Claim:
The tribunal considered the decision in the case of DWS India Equity Fund, where the Mumbai Bench held that short term capital loss arising from STT paid transactions can be set off against short term capital gain arising from non STT transactions.
The tribunal found that the computation of income under similar provisions allows for the set off, even if the transactions are liable for different tax rates.
In line with the decision of the Mumbai Bench, the tribunal upheld the CIT(A)'s order allowing the set off of short term capital loss against short term capital gain.
Conclusion:
Considering the identical nature of the cases cited and the decisions relied upon, the tribunal dismissed the department's appeal and upheld the CIT(A)'s order.
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2013 (5) TMI 1042
Issues involved: Application u/s 100 of the Companies Act, 1956 for confirmation of resolution for reducing share capital.
Details of the judgment:
The petitioner, a registered company under the Companies Act, applied for confirmation of a resolution to reduce its share capital. The court, satisfied that all creditors were simple trade creditors, dispensed with issuing notices to them. Notices were published in newspapers as per Company Court Rules. No objections were filed against the resolution. The Registrar of Companies confirmed that the proper procedure was followed for reducing the share capital.
The company's Board of Directors had resolved to reduce the share capital, followed by a special resolution. The reduction involved paying off equity shareholders at a higher rate than the market value, ensuring their interests were protected. The company would deposit the required amount in an account with a bank, serving the shareholders' interests. The court found no evidence that the reduction would be detrimental to public interest or against national policy. The liability of the company was not affected by the reduction.
Considering the facts, the court confirmed the resolution for reducing the share capital and approved the minutes. The Registrar of Companies was directed to register the resolution and minutes as per Section 103 of the Act. The company was instructed to publish a notice of registration in newspapers within 14 days. The petition was allowed, granting the relief sought.
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2013 (5) TMI 1041
The High Court of Allahabad made corrections in an order dated 07.05.2013. Correction Application No. 166760 of 2013 was allowed.
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