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Showing 21 to 40 of 1238 Records
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2014 (5) TMI 1222
Addition u/s 68 - Unsecured loan - onus to prove - addition on statement of one Sri Ramdinesh Ranjit Sharma. HELD THAT:- in the case of Amit Kumar S. Agarwal [2013 (1) TMI 1041 - ITAT AHMEDABAD] almost on identical situation the provisions of Section 68 were invoked and the AO had made the addition. In that case as well the proceedings were initiated on the basis of the statement of Sri Ramdinesh Ranjit Sharma. That statement was recorded consequences upon a survey conducted on Sri Lalit S. Sharma, as discussed by the AO in the appeal in hand. In short, we can conclude that on identical facts and circumstances when a view has been taken in assessee’s favour then there is no occasion to depart from that view but to follow the same. Moreover, we have noted that the assessee has duly discharged his primary onus of placing on record the confirmation letters, PAN details, cheque details, bank transactions through which the loans taken.
The assessee has informed that those parties were existing tax payers. Importantly, it has also been informed that the interest was paid to those parties by the assessee and the TDS was deducted. Further the loans were repaid in a subsequent years through City Bank transaction. Under the totality of the facts and circumstances of the case, we therefore uphold the view of learned CIT(A) and dismiss this ground of the Revenue.
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2014 (5) TMI 1221
Dishonor of Cheque - vicarious liability of director who signed the cheque - no allegation in the complaint that the petitioner was responsible for conduct of the business of the company - cognizance of the offence under Section 138 of Negotiable Instruments Act - HELD THAT:- It cannot be disputed that Section 141 is a penal provision creating vicarious liability and same must be strictly construed. The complaint should spell out as to how and in what manner the concerned respondent was in-charge of or was responsible to the accused/company for the conduct of its business. A company may have a number of directors and to make any or all the directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141.
It is also settled position in law that with a view to make a director of a company vicariously liable for the acts of the company, it is obligatory on the part of the complainant to make specific allegations as are required under the law and under Section 141 of the Act and that in absence of such specific averments in the complaint showing as to how and in what manner the director is liable, the complaint should not be entertained.
In the present case, a perusal of the complaint reveals that the cheque in question was signed by respondent No. 3 as director of respondent No. 2/company. The only allegation against the present petitioner is that she is the director and in-charge of the company. There is no further allegation in the complaint that the petitioner was responsible for conduct of the business of the company. There is also no allegation in the complaint in respect of part played by the petitioner in the alleged transaction - Since the complaint does not contain the specific averment as against the present petitioner as required under the law, therefore, the Trial Court could not have taken cognizance against the present petitioner. The vicarious liability on the part of the petitioner has not been clearly pleaded in the plaint. The petitioner had neither signed the cheque in question nor there is allegation that the petitioner is the Managing Director of the Company. There is also no allegation that the petitioner was in-charge and responsible for conduct of the business of the company at the relevant time.
The Trial Court has committed an error in taking cognizance of the offence under Section 138 of Negotiable Instruments Act against the present petitioner. In view of this, the impugned orders of the Trial Court cannot be sustained and are hereby set aside - Petition allowed.
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2014 (5) TMI 1220
Disallowance of deduction u/s 80P - As in ‘scrutiny’ AO formed an opinion that being a co-operative bank, the assessee is not a primary agricultural society or a primary co-operative and rural agricultural development bank entitled for section 80P deduction - HELD THAT:- It is made clear that no paper book or any other material has been filed before us to controvert the findings of the CIT(A) that the assessee is not engaged in any banking activity nor governed by the Banking Regulations Act. A perusal of relevant statutory provision i.e section 80P(4) reveals that this deduction is not available to any coI. operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank.
There is no cogent evidence to observe that the assessee is a co-operative bank under the banking regulation law. The Revenue fails to prove the assessee to be covered by explanation (a) and (b) to section 80P(4). In absence of all this, only a factual issue remains. It has also come on record that the assessee had advanced credit to its associate members only. The Revenue has also failed to rebut the findings of fact under challenge. Thus, we do not see any reason to interfere in CIT(A)’s order and uphold the same. The Revenue’s corresponding grounds are rejected.
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2014 (5) TMI 1219
Sanction to the Scheme of Amalgamation - sections 391 to 394 of the Companies Act, 1956 - HELD THAT:- In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.
The Petitioner Companies (collectively) would voluntarily deposit a sum of ₹ 1,00,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted - Petition allowed.
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2014 (5) TMI 1218
Trial for offence under Section 307, 326, 324 IPC by the SHO of Police Station Garshankar - parties have arrived at a compromise - HELD THAT:- This Court in authorities reported as Lal Chand v. State of Haryana, [2008 (12) TMI 819 - PUNJAB AND HARYANA HIGH COURT] and Chhota Singh v. State of Punjab, [1997 (12) TMI 667 - PUNJAB AND HARYANA HIGH COURT], allowed the compounding of offence in respect of offence under Section 326 IPC at the Appellate stage, where the Court came to the conclusion that it will be a starting point in maintaining peace between the parties.
So, relying upon the abovesaid authorities, the appeal stands accepted, the judgment and order of conviction stands set aside and the accused stands acquitted in view of compromise - A copy of the judgment be sent to trial Court for compliance.
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2014 (5) TMI 1217
Maintainability of complaint before District Forum - revisionary jurisdiction - sim card and the mobile number in question having been allotted to some other person - Outgoing and incoming call facility on the said mobile number could not be provided to the complainant - Consumer Protection Act, 1986 - HELD THAT:- The petitioner company was ready to compensate the complainant for this inadvertent mistake. In view of the said admission of negligence by the petitioner and having regard to the quantum of compensation awarded (₹ 20,000/-) this is not a fit case for our interference in revisionary jurisdiction.
As the powers of a "Telegraph Authority" are now not vested in the private telecom service providers, as is the case here, and also in, the BSNL; Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the disputes between individual telecom consumers and telecom service providers. In the light of the said clarification, the complaint before the District Forum was clearly maintainable and the objection of the petitioner in this regard is bereft of any merit.
The revision petition is dismissed.
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2014 (5) TMI 1216
Validity of separate SCN under Section 28(6)(ii) of the Customs Act, 1962 in respect of short fall in duty paid - Continuation of proceedings in respect of seized currency - HELD THAT:- No further orders are called for. It is open to the respondent to proceed in accordance with law, both in respect of the seized currency as well as in respect of the short fall, if any, in duty paid.
Petition disposed off.
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2014 (5) TMI 1215
Claim not set out in the return of income - Disallowance of Additional claim for proportionate initial rent paid and other expenses incurred on aircraft acquired on finance lease - assessee company failed to make the said claim through a revised return as provided in the Act - ITAT allowed the claim - HELD THAT:- AO was in error in not allowing the assessee to raise the claim merely because it was not set out in the return of income or referred thereunder. This view taken by the Assessing Officer is not in consonance with the law laid down by this Court in the case of Commissioner of IncomeTax V/s. Pruthvi Brokers and Shareholders P. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT] - the refusal of the Assessing Officer to consider the claim is erroneous in law. Assessing Officer is now directed and in terms of the Division Bench order to allow the assessee to raise this claim. However, the claim shall be considered on its own merits and in accordance with law by the Assessing Officer. He shall to do so within a period of three months from the date of the receipt of the copy of this order. All contentions of both sides in relation to this claim are kept open.
Assessing Officer shall also follow the same exercise as is directed by our order in M/S. JET AIRWAYS (I) LTD. [2014 (5) TMI 707 - BOMBAY HIGH COURT] and in relation to the claim for depreciation on the aircrafts taken on hirepurchase by the assessee. He shall apply the same circular of 1943 as is referred by our order passed in the companion appeals to complete the exercise within the time stipulated therein.
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2014 (5) TMI 1214
Murder - appellants has submitted that the courts below have committed an error convicting the appellants on the evidence which has been totally disbelieved on the basis of which the other remaining 15 accused stood acquitted - material discrepancies in respect of the manner and number of injuries caused by the appellants to the deceased - HELD THAT:- In the instant case, Malliga (PW.1), wife of deceased, in the FIR, in her statement under Section 161 Cr.P.C. and in her deposition in the court, had specifically named both the appellants. Even though, she had named other persons also. The appellants had been known to the said witness for a long time as they were closely related. There was sufficient light as per the evidence on record even otherwise there can be no difficulty to recognise so closely related persons even in darkness. The injuries found on the person of the deceased are duly supported by medical evidence as well as got corroborated by the deposition of Malliga (PW.1) - It has further been held by the trial court that the appellants herein came with Aruval and attacked the deceased indiscriminately causing injuries on the neck, chest and other parts of the body, though, inadvertently, the trial court has mentioned that the injuries found on all over the body, had caused the death.
It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Presence of light at the place of occurrence at the relevant time - HELD THAT:- The trial court recorded the findings to the fact that there was sufficient light. The High Court reappreciated the evidence and came to the conclusion that admittedly there was light in the facet of the house and there was also street light illuminating the place of occurrence. Even in the observation Mahazar Ex.P-18, the light has been shown. The evidence of Kumareshan (PW.19), the wireman of Electricity Board, was examined to prove the fact that at the relevant point of time, the electricity was in supply at the place of occurrence. There is some discrepancy in the statement of Malliga (PW.1) in this regard but she might have not been able to give exact specific account being an illiterate village woman and as the appellants have not been strangers, there could be no difficulty for her to identify the appellants even in the darkness.
It has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well - Appeal dismissed.
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2014 (5) TMI 1213
Constitution of a panel of two retired judges of the Madras High Court by the BCCI - betting and spot-fixing in IPL, 2013 - constitution of the probe panel in accordance with the Operational Rules applicable to the IPL or not - constitution of fresh panel to inquire into the allegations, declined - HELD THAT:- Instead of Shri M.L. Sharma, IPS (Retired), Shri B.B. Mishra, IPS of the 1983 batch of Assam-Meghalaya Cadre who has a vast experience in investigation including experience in the CBI and who is presently working as Deputy Director General, Narcotics Control Bureau, New Delhi, should head the investigation team. The other officers from Mumbai Police, Chennai Police and Delhi Police and a former cricketer of repute and integrity mentioned against serial Nos. (ii) to (iv) above will be chosen by the Justice Mudgal Committee in consultation with Shri B.B. Mishra.
It is directed that the competent authority of Government of India will pass appropriate orders placing the services of Shri B.B. Mishra at the disposal of the Justice Mudgal Committee till completion of the investigation and submission of the report to this Court. Shri B.B. Mishra and the other officers of the investigating team will have the powers to investigate, require attendance of witnesses, the power to examine witnesses, the power to search and the power to seize and all other powers necessary for investigation except the power to arrest and the source of these powers of investigation will be this order passed by this Court. All concerned persons including the BCCI, Mr. N. Srinivasan and the cricket players will cooperate with the investigation in all respects - After investigation, the report will be filed in this Court by the Justice Mudgal Committee by the end of August, 2014 in a sealed cover and the Members of the Committee and the investigation team will not reveal anything regarding the investigation to others and the media and will maintain absolute confidentiality.
The matters will be listed in first week of September, 2014 for further hearing before the appropriate Bench. In the meanwhile, Mr. Sunil Gavaskar and Mr. Shivlal Yadav will continue to exercise the powers of the President of the BCCI as per the order dated 28.03.2014 of this Court.
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2014 (5) TMI 1212
Maintainability of appeal - HELD THAT:- Both sides agree that we need not give detailed reasons in support of this conclusion, but we would be justified in relying on reasons assigned in COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS JSW STEEL LTD. [2014 (9) TMI 332 - BOMBAY HIGH COURT] where it was held that we have no alternative but to allow this Appeal only on this short, but substantial question of law and that is that the Appeals cannot be disposed merely by recording rival submissions and not discussing them elaborately but, in a perfunctory manner.
Appeal disposed off.
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2014 (5) TMI 1211
Direction to appellant/defendant to deposit arrears of rent @ ₹ 1 lakh per month from the date of the institution and till the pendency of the suit - Order XXXIX Rule 10 of the CPC - only argument of the counsel for the appellant/defendant is that under Order XV-A CPC, no direction for deposit of any amount in excess of that admitted by the defendant as payable can be issued - HELD THAT:- Order XV-A was introduced in the CPC as applicable to Delhi vide notification published in the Delhi Gazette dated 14th November, 2008. The same provides that in a suit by an owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. It further provides that upon default by the defendant in making the deposit, the defence of such a defendant may be struck off.
Order XX Rule 12 of the CPC permits a Court to grant a relief, which had not become due to the plaintiff on the date of institution of the suit and the cause of action wherefor had not accrued on the date of institution of the suit and which fell due to the plaintiff after the date of institution of the suit. The said provision was made, perhaps to obviate the need for filing of a suit for recovery of mesne profits/damages for use and occupation of the property during the pendency of a suit for recovery of possession from the person in unauthorized occupation thereof.
Though Order XVA is titled as "Striking Off defence in a suit by a lessor" but the same is not confined to striking off of defence only. The same, independently of Order XXXIX Rule 10 CPC, vests in the Court the power for issuing a direction for deposit. While so empowering the Court, as rightly held by the learned Single Judge, a departure was made from the language of Order XXXIX Rule 10 CPC. While under Order XXXIX Rule 10 CPC, a direction could be issued only for deposit/payment of admitted amount, the word 'admitted' is conspicuous by its absence in Order XV-A of the CPC. A discretion has been vested in the Court to issue direction for deposit of "such amount" as the Court may direct. Such departure from language of an earlier existing provision is a tool of interpretation - Reference may also be made to KHATRI HOTELS PRIVATE LIMITED AND ANOTHER VERSUS UNION OF INDIA AND ANOTHER [2011 (9) TMI 1098 - SUPREME COURT], where, finding the legislature to have designedly made a departure from the language of Article 120 of the Limitation Act, 1908, in enacting Article 58 of the 1963 Act, by introduction of the word "first" between the words "sue" and "accrued", it was held that if the suit is based on multiple causes of action, the period of limitation will begin to run from the date when the cause of action first accrued.
In the present case, the learned Single Judge had two versions before him. One, of the respondent No. 1/plaintiff of the last rent paid by the appellant/defendant at the rate of ₹ 3 lakhs per month and the other of the appellant/defendant, of the last rent being paid at the rate of ₹ 1,000/- per month. The learned Single Judge has chosen to issue the direction for deposit @ ₹ 1 lakh per month - We are prima facie unable to believe that a valuable commercial property, as the subject property is, would have been let out at a rent below ₹ 3,500/- per month, allowing the letting to fall within the ambit of the Rent Act, whereunder the eviction of a tenant is not only difficult but virtually impossible. Both the parties obviously have been indulging in transactions in cash, perhaps to avoid taxes. We in the circumstances are of the opinion that there is no reason to interfere with the order of the learned Single Judge.
The appeal is dismissed.
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2014 (5) TMI 1210
Grant of relief during the pendency of the suit - termination of lease due to non-payment of lease rentals - HELD THAT:- Order XXXIX Rule 10 of the CPC empowers the Court to direct deposit/payment of admitted amounts. The appellant, as aforesaid does not controvert that it continued to be the tenant of office unit B-1 and had not terminated the tenancy with respect thereto. There is thus an admission by the appellant of the liability for rent at least of office unit B-1. The appellant, if had been a defendant in a suit, could have thus been directed by an interim order in the suit to make such payment to the respondent.
The denial by the appellant of the entire rent as agreed, on the ground of having determined the tenancy of one of the two office units taken on rent, is clearly vexatious, as in law the appellant as a tenant could not determine tenancy of part of the premises taken on rent. It is not the case of the appellant that it was entitled to do so as part of terms of its tenancy. In that view of the matter, the appellant could under Order XV-A of the CPC have been directed to pay the rent of the entire premises notwithstanding having given notice of termination of tenancy of part thereof.
Appeal is dismissed with costs of ₹ 25,000/- payable by the appellant to the respondent within six weeks of today.
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2014 (5) TMI 1209
Fees for technical services - Receipts on account of transportation fee - taxable as ‘FTS’ u/s. 9(1)(vii) or not? - HELD THAT:- Fees earned by the assessee under the transportation agreement are not FTS and cannot be taxed u/s. 9(1)(vii) of the Act. Taking support from the decision of the Tribunal in assessee’s own case for A.Y. 2006-07 [2012 (2) TMI 365 - ITAT MUMBAI] the Ld. CIT(A) correctly held that the services rendered by the assessee are not managerial, technical or consultancy services and deleted the addition made by the AO. - Decided against revenue.
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2014 (5) TMI 1208
Validity of Final Partial Award - rejection of arbitrability of the claims made by the Petitioner in respect of Royalties, Cess, Service Tax and CAG Audit - Section 34 of the Arbitration and Conciliation Act, 1996 - whether Part I of the Arbitration Act, 1996 would be applicable to the arbitration agreement irrespective of the fact that the seat of arbitration is outside India? - HELD THAT:- The parties are agreed and it is also evident from the Final Partial Consent Award dated 14th September, 2011 that the juridical seat (or legal place) of arbitration for the purposes of the arbitration initiated under the Claimants' Notice of Arbitration dated 16th December, 2010 shall be London, England. The parties are also agreed that hearings of the Notice of Arbitration may take place at Paris, France, Singapore or any other location the Tribunal considers may be convenient. It is also agreed by the parties that the terms and conditions of the arbitration agreement in Article 33 of the PSCs shall remain in full force and effect and be applicable to the arbitration proceedings.
Article 33 makes very detailed provision with regard to the resolution of disputes through arbitration. The two Articles do not overlap-one (Article 32) deals with the proper law of the contract, the other (Article 33) deals with ADR, i.e. consultations between the parties; conciliation; reference to a sole expert and ultimately arbitration. Under Article 33, at first efforts should be made by the parties to settle the disputes among themselves (33.1). If these efforts fail, the parties by agreement shall refer the dispute to a sole expert (33.2). The provision with regard to constitution of the arbitral tribunal provides that the arbitral tribunal shall consist of three arbitrators (33.4). This article also provides that each party shall appoint one arbitrator. The arbitrators appointed by the parties shall appoint the third arbitrator. In case, the procedure Under Article 33.4 fails, the aggrieved party can approach the Permanent Court of Arbitration at Hague for appointment of an arbitrator (33.5) - the Permanent Court of Arbitration at Hague can be approached for the appointment of the arbitrator, in case of default by any of the parties. This is a strong indication that applicability of Arbitration Act, 1996 was excluded by the parties by consensus. Further, the arbitration proceedings are to be conducted in accordance with the UNCITRAL Rules, 1976 (33.9). It is specifically provided that the right to arbitrate disputes and claims under this contract shall survive the termination of this contract (33.10).
The conclusion reached by the High Court would lead to the chaotic situation where the parties would be left rushing between India and England for redressal of their grievances. The provisions of Part I of the Arbitration Act 1996 (Indian) are necessarily excluded; being wholly inconsistent with the arbitration agreement which provides "that arbitration agreement shall be governed by English law." Thus the remedy of the Respondent to challenge any award rendered in the arbitration proceedings would lie under the relevant provisions contained in Arbitration Act, 1996 of England and Wales. Whether or not such an application would now be entertained by the courts in England is not for us to examine, it would have to be examined by the Court of Competent Jurisdiction in England.
Public Policy - HELD THAT:- The basis for filing the petition Under Section 34 is that the Appellants are bound to obey the Laws of the country. The Appellants have nowhere claimed to be exempted from the Laws of India. They claim that the Government of India, party to the Contract, i.e., PSC has failed to seek and obtain exemption as stipulated in the contract. Whether or not the claim has substance is surely an arbitral matter. It is not the case of the Appellants that they are not bound by the Laws of India, relating to the performance of the contractual obligations under the PSCs. It is not possible to sustain the conclusion reached by the High Court. The arbitration agreement can not be jettisoned on the plea that award, if made against the Government of India, would violate Public Policy of India. Merely because the Arbitral Tribunal has held that claims are arbitral does not mean that the claims have been accepted and an award adverse to India has been given. We, therefore, have no hesitation in rejecting the submission made by Mr. Ganguly. For the same reasons, we are unable to sustain the conclusions reached by the High Court of Delhi.
The principle of severability of the arbitration agreement from the substantive contract is indeed statutorily recognized by Section 16 of the Indian Arbitration Act, 1996 - A bare perusal of the section would show that the arbitration agreement is independent of the other terms of the contract. Further, even if the contract is declared null and void, it would not lead to the foregone conclusion that the arbitration clause in invalid.
The conclusions reached by the Delhi High Court that reference to laws of England is only confined to the procedural aspects of the conduct of the arbitration reference, cannot be approved.
The petition filed by Respondents Under Section 34 of the Arbitration Act, 1996 in the Delhi High Court is not maintainable - the conclusion of the High Court that, even though the arbitration agreement would be governed by the laws of England and that juridical seat of arbitration would be in London, Part I of the Arbitration Act would still be applicable as the laws governing the substantive contract are Indian Laws, is set aside - appeal allowed.
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2014 (5) TMI 1207
Grant of retirement benefits - non-government servant - seeking relief of proficiency set up - HELD THAT:- There has been adjudication on the same issue between the same parties and the High Court negatived Appellant's claim. We are of the considered opinion that the Appellant does not deserve any relief whatsoever and the appeal is liable to be dismissed.
It is difficult to understand how the suit was maintainable as it is a settled legal proposition that in view of the provisions of Section 79 and Order 1 Rules 9 & 27 of the Code of Civil Procedure, 1908 and Article 300 of the Constitution of India, if a relief is sought against the State or the Union of India, the State or Union of India must be impleaded as a party. In case it is not so impleaded, the suit is not maintainable for want of necessary party.
The suit was wrongly decreed - here is a suit which was decreed on the admission of the Defendant against whom no relief was prayed for, and without impleading the necessary party - Appeal dismissed.
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2014 (5) TMI 1206
Deduction u/s. 80IA - AO restricted the deduction to the gross total income of the assessee, after set off all the brought forward unabsorbed deprecation - HELD THAT:- Similar issue raised by the revenue in this appeal was considered and decided by the Hon’ble Supreme Court in the case of Synco Industries [2008 (3) TMI 13 - SUPREME COURT] held that on the contention that the profits derived from one industrial undertaking cannot be set off against loss suffered from another undertaking in view of s. 80-I(6) and that the profit is required to be computed as if the profit making industrial undertaking is the only source of income, the Hon’ble Supreme Court held that the same has no merits and that the non obstante clause appearing in s. 80-I(6) is applicable only to the quantum of deduction, whereas the gross total income referred to in s. 80- I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking.
The Hon’ble Supreme Court also held that if the interpretation as suggested by the assessee is accepted then it would almost render the provisions of s. 80A(2) nugatory and, therefore, the same cannot be accepted. It was held that the non obstante clause in s. 80-I(6) cannot restrict the operation of ss. 80A(2) and 80B(5) which operate in different spheres. The Hon’ble Court therefore concluded that loss from the oil division of the assessee was required to be adjusted before determining the gross total income, and since the gross total income was ‘Nil’, assessee was not entitled to claim deduction under s. 80-I.
The above decision rendered in the context of Sec.80-I of the Act would in our view squarely apply to the provisions of Sec.80-IA and 80- IA(7) of the Act as the provisions are impari materia the same.
We are of the view that the order of the CIT(Appeals) allowing the claim of the assessee without setoff of losses of earlier years while arriving at the gross total income cannot be sustained.
Addition to the donation of assets and obsolesce of assets - AO did not allow the claim of the assessee for deduction of the aforesaid sum for the reason that the details of expenditure on account of obsolescence and donation of assets showed that they were capital losses and therefore cannot be allowed as revenue expenditure - HELD THAT:- Tribunal in assessee’s own case in A.Y. 2007-08 [2013 (10) TMI 1505 - ITAT BANGALORE]held that AO has not allowed the assessee's claim for deduction of the loss on obsolescence of assets under section 37(1) of the Act, holding it to be capital in nature. Before us, AR was unable to bring on record any cogent evidence to substantiate its claim and controvert the finding of the assessing authority. In this view of the matter, we dismiss assessee's ground.
Addition of prior period expenditure - HELD THAT:- Claim of stores reconciliation these sums were actually discrepancies in stock noticed during the previous year and had to be allowed as a deduction. The appraisal note by the audit committee,shows difference in quantities. However, it is seen that the aforesaid report has neither been considered by the CIT(Appeals) nor by the Assessing Officer in the remand report filed before the CIT(A). It appears to us that there has been no proper appreciation of the facts in the right perspective as to whether the appraisal note is in relation to reconciliation of stocks as per the books and as physically found relating to the previous year or to a prior period, which has neither been commented upon by the AO nor decided by the CIT(A).
Since the facts have not been properly appreciated either by the AO or the CIT(A), we are not in a position to comment on the allowability or otherwise of the claim of the assessee. In the given circumstances, we are of the view that it would be just and proper to set aside the order of the AO on this issue and remand the question of allowing the claim of the assessee for adjudication.
Prior period expenses disallowed with regard to price escalation we find that one SICAL who was transporting coal on behalf of the assessee to its various power stations had made a claim for escalation of costs to be paid for transportation of coal - the assessee has made a claim for deduction - aforesaid correspondence that the liability of the assessee to pay the aforesaid sum crystallised only during the previous year i.e., on 10.2.2006 and 25.3.2006 when the offer of the assessee and acceptance by SICAL took place. Though the liability may relate to an earlier period, since the liability had crystallised only during the previous year, the same had to be allowed as deduction. Accordingly, we direct that the aforesaid sum be allowed as deduction in computing the total income.
Difference in transport charges paid by the assessee for surface transport of coal the document on record show that the Board meeting of the assessee conducted on 2.1.2006 considered the revision of rates for surface transport of coal as recommended by the Technical Committee - The aforesaid sum was paid by the assessee to M/s. Aryan Energy Pvt. Ltd. It is thus clear from the document that the liability of the assessee to pay the differential surface transport charges crystallised only during the previous year. Though the amount in question was payable in respect of transportation done during an earlier period, the same is allowable in the present assessment year as the liability had crystallised only during the previous year. We therefore direct that the claim of the assessee be allowed.
Differential sales tax reimbursement of lease rentals - HELD THAT:- Though the assessee’s liability to differential sales tax was in relation to an earlier period, the liability had crystallised only during the previous year and therefore had to be allowed as a deduction in computing the total income of the previous year. We therefore direct the AO to allow the aforesaid claim of the assessee for deduction.
Disallowance of expenses claimed by the assessee’s employees and other agencies - HELD THAT:- We are of the view that considering the explanation offered, it would be reasonable to allow the claim of the assessee. Consequently the claim of the assessee is directed to be accepted.
MAT computation applicability u/s 115JB - additional grounds raised by the assessee seek to challenge the applicability of provisions of section 115JB to an electricity supply company such as the assessee - HELD THAT:- Following the decision of the Tribunal in the assessee’s own case [2013 (10) TMI 1505 - ITAT BANGALORE] we allow the additional grounds raised by the assessee and hold that the provisions of section 115JB are not applicable to the assessee.
Expenditure claimed under the head expenditure on maintenance expenses - HELD THAT:- From a perusal of the order of the AO as well as CIT(Appeals), it is clear that the revenue authorities have not denied the fact that the expenditure crystallised during the previous year, though they related to a period earlier to the previous year. In our view, under the mercantile system of accounting it is the crystallization of liability that will decide as to allowability of an expenditure. Since, admittedly, crystallization of expenses in question had happened during the previous year, the expenditure claimed by the assessee has to be allowed. Accordingly, the AO is directed to allow the claim of the assessee for deduction.
Expenditure claimed under the head expenditure on establishment and general expenses - HELD THAT:- CIT(A) in enhancing the disallowance made by the AO has overlooked the fact that the liability of the assessee to pay DA had crystallised only during the previous year. Accordingly, the addition made by way of enhancement by the CIT(A) is directed to be deleted.
For balance amount assessee submitted before us that the necessary evidence to prove crystallization of liability during the previous year can be produced by the assessee and for this purpose, pleaded for a fresh opportunity before the AO. We are of the view that the request made is reasonable and accordingly we set aside the order of the CIT(A) insofar as the addition and direct the assessee to file necessary evidence before the Assessing Officer. In this regard we are also of the view that the Assessee being a corporation established by the State of Karnataka should be afforded an opportunity as no motives for any tax evasion can be attributed.
Expenditure claimed by the appellant under the head power charges and electricity tax on colony consumption - HELD THAT:- It is not in dispute before us that that the liability of the assessee to pay the aforesaid sum arose only during the previous year. It is also not in dispute before us that the total demand insofar as the power charges are concerned is much more than the sum of ₹ 6,53,49,424. The assessee has no doubt challenged the order of KERC, but insofar as the sum of ₹ 6,53,49,424 is concerned, the assessee had made the actual payment of the aforesaid sum, notwithstanding the fact that the challenge by the assessee includes this sum also. Strictly speaking, the liability to this extent cannot be said to have been crystallized during the previous year. However, as and when the dispute is settled, the assessee will be entitled to claim this expenditure in the assessment year in which the dispute is ultimately settled. Consequently, this ground of appeal by the assessee is dismissed.
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2014 (5) TMI 1205
Bail application - higher rates of the tablets that were purchased relating to Iron Folic Acid that has caused a loss of ₹ 11 lakhs - HELD THAT:- Having considered the submissions raised the bail order of Dr. Satish Kumar and H.G. Singh itself carves out an exception in their favour by recording that the said applicants had a limited role as they are the members of the tender purchase committee who were directly under the control of the applicant Dr. P.P. Verma. The bail orders aforesaid therefore proceed to draw a distinction between the applicant's role and the other members of the purchase committee - The applicant being the Chief Medical Officer, Meerut was owning a higher responsibility and the allegations made and the evidence collected as reflected in the charge-sheet therefore distinguish the case of the applicant and the other members of the said purchase committee.
This is not a case of parity with the other co-accused - application rejected.
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2014 (5) TMI 1204
Seeking restoration of name of the petitioner which was directed to be struck off from the Indian Medical register for a period of three years - HELD THAT:- This Court is of the view that as interpretation of Section 24(2) of the Act, 1956 and validity of Clause 8.8 is pending consideration before the Supreme Court in [1992 (4) TMI 183 - SUPREME COURT], it would be appropriate to await the said judgment - This Court with utmost humility would like to state that it is not in agreement with the view expressed by the Calcutta High Court in Pijush Kanti Chowdhury [2007 (5) TMI 559 - CALCUTTA HIGH COURT], as it is of the opinion that once a stay order has been passed by a superior court, the order of the lower court ceases to operate till the stay order is in effect. In fact, the judgment of the Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras [1992 (4) TMI 183 - SUPREME COURT] relied upon in Pijush Kanti Chowdhury [2007 (5) TMI 559 - CALCUTTA HIGH COURT] itself lays down that stay of an operation of an order means that the order would not be operative.
List the matter in the category of 'Regular Matters' according to its seniority. The impugned order passed by the Ethics Committee of MCI dated 27th October, 2012 and the decision of the erstwhile Board of Governors of MCI dated 10th December, 2012 are stayed till disposal of the petition - Application disposed off.
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2014 (5) TMI 1203
Demand of service tax - Two contracts was for supply of indigenous equipment and materials and the other one for the Construction/ Erection/ Installation of plant - Revenue contends that there was artificial bifurcation of contracts and contracts should be treated as one - it was held by CESTAT that both the contracts dated 24.08.2007 for Supply of equipments and Construction of works has to be treated as distinct and separate contracts and value of supply contract cannot be added to the value of the construction contract for the purpose of service tax liability.
HELD THAT:- Application admitted.
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