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Showing 21 to 40 of 1439 Records
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2015 (7) TMI 1428
Levy of Service Tax - Tour Operator services - conducting outbound tours for performing Haj to Mecca and Medina - HELD THAT:- Both sides agree that the issue has been covered by the earlier decision of the Tribunal in the case of M/S COX & KINGS INDIA LTD., M/S TRAVEL CORPORATION OF INDIA LTD. AND M/S SWAGATAM TOURS PVT. LIMITED VERSUS CST, NEW DELHI [2013 (12) TMI 1024 - CESTAT NEW DELHI] which stands followed in the subsequent decision - One such reference can be made to Tribunal’s decision in the case of ATLAS TOURS & TRAVELS PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2015 (2) TMI 476 - CESTAT MUMBAI] where it was held that activity of outbound tours abroad is not taxable.
Appeal allowed.
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2015 (7) TMI 1427
Refund of accumulated and unutilized credit denied - denial on the ground that undertaking market survey for foreign entity does not amount to export of service - absence of certain facts from the concerned invoices - nexus of the service with their output service as also effect of invoices raised by the service provider paying in foreign currency.
HELD THAT:- The Tribunal in TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE] in the appellant’s own case involving identical refund dispute pertaining to the earlier quarter where the matter was remanded for fresh adjudication in the light of the interim order passed by the Tribunal.
Matter remanded to the original adjudicating authority for fresh decision in the light of the above order - appeal disposed off.
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2015 (7) TMI 1426
Capital goods - other goods (input, packing materials) - respondent has not followed the settled law and the interpretation for said goods made by the respondent being totally arbitrary has to be decided by the appellate authority - HELD THAT:- The respondent having miserably failed to follow the above said two legal positions, had also decided the two other issues with regard to issue relating to capital goods and other goods – input, packing materials.
No doubt, the learned counsel appearing for the petitioner was right is saying that the first two issues relating to the cancellation of the registration certificate with retrospective effect, which is covered in a reported decision in JINSASAN DISTRIBUTORS VERSUS THE COMMERCIAL TAX OFFICER (CT) [2013 (4) TMI 615 - MADRAS HIGH COURT] and one another issue relating to selling dealers not filed their manual returns and not paid taxes in their assessment circle and for the fault on the part of the dealers, the petitioner mulcted with tax along with penalty has to be covered in the decision SRI VINAYAGA AGENCIES VERSUS THE ASSISTANT COMMISSIONER (CT) [2013 (4) TMI 215 - MADRAS HIGH COURT]. But the issue relating to capital goods and other goods – input, packing materials, have to be gone into by the appellate authority. Therefore, this Court is not inclined to entertain these Writ Petitions.
The Writ Petitions are dismissed.
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2015 (7) TMI 1425
Disallowance of loss incurred on sale of shares - AO opined that there was no reasonable basis to justify the sale of shares worth Rs. 3 crore for a sum of Rs.75,000/- only and, further, the transaction was not with an independent party at fair market value - CIT-A deleted the addition - HELD THAT:- AO was fully justified in rejecting the genuineness of the transaction of purchase and sale of shares on the test of human probability. The entire story concocted by the assessee and its group concerns is aimed at defrauding the Revenue with ulterior motive. Such a course of action adopted by the assessee, which is nothing more than a camouflage, cannot be accepted.
Our conclusion is fortified by the very fact that when the AO examined the entire position in detail and found out the irregularities as discussed above, the assessee came out with a proposal before the AO that he could assess the loss at Nil attributing any reason, but, not by way of disallowance attracting penalty u/s 271(1)(c) - The same submission was reiterated before the CIT(A) as well which has been incorporated. Despite all these goings-on, CIT(A) chose to delete the addition, was not justified - we overturn the impugned order and restore the action of the AO on this issue.
Disallowance of loss claimed to have been incurred by the assessee on sale of shares - As it is again a non-genuine transaction entered into with the object of depriving the Revenue of legitimate tax due to the exchequer. It is totally unacceptable that a person who has sold shares for Rs.8 crore will sit quietly for more than 2 ½ years and will get payment only when his buyer, in turn, sells such shares. Considering these off market transactions of purchase and sale of the shares of M/s Solaris, relation between the buyer assessee seller and companies whose shares were transacted, all being group concerns, and the further fact that the seller did not claim payment from the assessee for more than 2 ½ years, coupled with the other related facts lead me to an irresistible conclusion that the transactions in the shares of M/s Solaris Holdings Ltd., were not genuine. The reasons noted above while discussing the long term capital loss from the shares of M/s Pioneer Ltd., apply with full force to this transaction as well. CIT(A) was not justified in deleting the addition - therefore, restore the view taken by the AO.
Appeal filed by the Revenue is allowed.
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2015 (7) TMI 1424
Non-prosecution of appeal by Assessee - HELD THAT:- As assessee is not interested in pursuing her appeal. It was the duty of the assessee to make necessary arrangements for effective representation on the appointed date. Mere filing of appeal is not enough rather it requires effective prosecution also. In view of these facts, we are of the view that the appeal of the assessee is liable for dismissal. Appeal filed by the assessee is dismissed for non-prosecution.
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2015 (7) TMI 1423
Penalty levied u/s 271C - order passed u/s 201(1A) charging interest on the delayed payment of tax - HELD THAT:- No order was passed under section 201(1) of the Act holding the assessee to be in default. The Assessing Officer has passed an order under section 201(1A) of the Act charging interest on the delayed payment of tax. We have also carefully perused the relevant provisions of section 271C of the Act and we find that the penalty under section 271C of the Act can only be levied where the assessee fails to deduct the whole or any part of the tax as required by or under the provisions of Chapter XVII-B or pay the whole or any part of the tax as required by or under (i) sub-section (2) of section 115-O; or (ii) the second proviso to section 194B.
Hon'ble Apex Court in the case of Coca Cola Beverage P. Ltd. [2007 (8) TMI 12 - SUPREME COURT] and Jagran Prakashan Ltd [2012 (5) TMI 488 - ALLAHABAD HIGH COURT] and also various orders of the Tribunal, in which it has been held that wherein TDS was paid by the assessee or required tax was paid by the deductee, the assessee should not held to be in default. Only interest on delayed payment under section 201(1A) of the Act can be charged. In the light of these decisions where the assessee has made payment of TDS though late, he cannot be held to be in default and there is no question of levy of penalty under section 271C - Decided against revenue.
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2015 (7) TMI 1422
Reopening of assessment u/s 147 - Disallowance of broken period interest - Whether Tribunal was right in holding that the reopening of assessment was not proper ? - HELD THAT:- There is a specific finding of the Tribunal that re-openings were done after the end of four years from the assessment years in question and, therefore, the first proviso to Section 147 will squarely apply and it is required for the Revenue to show that there was failure on the part of the assessee to disclose fully and truly material facts necessary for the assessment. Therefore, in those appeals the Tribunal was in favour of the assessee.
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2015 (7) TMI 1421
Ffixation of ceiling price under the provisions of the Drugs (Prices Control) Order, 2013 - male contraceptives (condoms) - the fixation of price is in conformity with the powers vested under the Essential Commodities Act, 1955 read with the Drugs and Cosmetics Act, 1940 or not - HELD THAT:- A product would not cease to be a medicine merely on the ground that its dosage and strength have not been specified. However, it is not clear as to how Paragraph 4 of DPCO-2013 can be made applicable to those formulations for which the dosage and strength have not been specified.
A perusal of Paragraph 4 of DPCO-2013 shows that the same provides for fixation of ceiling price of only a scheduled formulation of specified strength and dosage as specified under the First Schedule. Para 2(1)(d) defines “ceiling price‟ as a price fixed by the Government for “scheduled formulations‟ in accordance with the provisions of DPCO-2013 - It is evident from the First Schedule that it contains the formulations of which strength and dosage have been specified as well as the formulations of which strength and dosage have not been specified. Para 2(1)(zb) defines scheduled formulations as formulation included in the First Schedule whether referred to by generic versions or brand name. Thus, it is clear that all formulations that are included in the First Schedule, irrespective of specification of strength and dosages, are “scheduled formulations‟. In other words, scheduled formulations include non-scheduled formulations.
On a combined reading of Para 4, Para 2(1)(d) and Para 2(1)(zb), it appears that the specification of dosage and strength in the First Schedule has a specific bearing with regard to fixation of ceiling price under DPCO-2013. The words in the definition of “ceiling price‟ under Para 2(1)(d) i.e. “in accordance with the provisions of this order‟ make the intention of the Legislature abundantly clear and that the same shall be given due weight while implementing the provisions of DPCO-2013 - It is pertinent to note that DPCO-2013 contains a different method of regulation so far as “non-scheduled formulations‟ are concerned. Para 20 of DPCO-2013 provides for monitoring the “maximum retail prices‟ of the non-scheduled formulation and Para 25 mandates display of prices of non-scheduled formulation and price list thereof.
The question that arises for consideration is whether ceiling price can be fixed by the NPPA for all the formulations/medicines included in the First Schedule to DPCO-2013 ignoring the legislative intention that the said power be not extended to some of the formulations. Considering an identical issue, the Supreme Court in SECRETARY, MINISTRY OF CHEMICALS AND FERTILIZERS, GOVT. OF INDIA VERSUS M/S. CIPLA LTD. AND OTHERS [2003 (8) TMI 541 - SUPREME COURT] held that the contents of the policy documents cannot be read and interpreted as statutory provisions and that too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. It was also added that the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself as a policy maker and that the delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.
The NPPA exceeded the powers conferred by Paras 4, 6 & 14 of DPCO-2013 while fixing the ceiling price for condoms. The language of Para 4 is unambiguous and makes clear the legislative intent that the ceiling price can be fixed only for scheduled formulations of specified strengths and dosages as specified under the First Schedule. Therefore, according to us, the provisions of Para 4 cannot be made applicable to “condoms‟ the dosage and strength of which have admittedly not been specified under the First Schedule.
Since the impugned action of fixation of ceiling price is held to be bad on the ground that the NPPA exceeded the powers conferred by Para 4, 6 and 14 of DPCO-2013 and the policy decision under NPPP-2012 has not been interfered in any manner, it is also not necessary to refer to the various decisions cited by the learned counsel for both the parties with regard to the scope of judicial review vis-à-vis policy decision.
The Orders of NPPA dated 05.11.2013 and 10.07.2014 are illegal and unsustainable - Petition disposed off.
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2015 (7) TMI 1420
Commission of organised crime - threat of violence, intimidation, coercion or other unlawful means with the objective of gaining pecuniary or other advantages - acquittal of the accused - HELD THAT:- The he High Court held that once the Respondents had been acquitted for the offence punishable under the Indian Penal Code and Arms Act in Crimes No. 37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable Under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all that remained incriminating was the filing of charge sheets against the Respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of the MCOCA. The filing of charge sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable Under Section 3 of the MCOCA. That is because the involvement of Respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA - Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence Under Section 3 of the Act.
In the case at hand, the offences which the Respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the Respondents in Crimes No. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the Respondents were acquitted of the charge under the Arms Act even in Crimes Case No. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the Respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court.
Appeal dismissed.
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2015 (7) TMI 1419
Handwriting and age of ink used in the cheque - document referred to handwriting expert regarding the writings and age of the ink found in the said two cheques - HELD THAT:- Supporting the defence of the accused that he did not give the cheques much less he did not fill the part of the columns of the cheques and those were filled by somebody and different writings to the original writings and ink also different and he sought for sending the same - Thus, the learned Magistrate committed error in not considering the request equally in confirming the order of dismissal by the learned Sessions Judge. The application is therefore deserves to allow.
This Criminal Petition is allowed.
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2015 (7) TMI 1418
Suits for prosecution in summary fashion under order 37 applications for leave to sue - non-speaking order merely adverting to the plea raised on behalf of the plaintiff that the leave to defend might be granted subject to furnishing bank guarantees - violation of principles of natural justice - HELD THAT:- While holding that there is anything really substantial at all or there is any defense as with reference to some debit notes which the plaintiff has issued to the defendant, even this amount is denied by the plaintiff as still due and according to the plaintiff a right to enforcement claimed by the defendant in a separate suit was lost. The defendant denies that the suit represented liability of the debit note now. The moneys claimed are fairly large and the defendant company is in a bad way by, the defendants own showing. The principal asset which was the running unit has been lost which has not even discharged in full the liability to a public sector financial company. The money lost in a transaction in business causes a serious dent in the resources of not only the company which has lost its business and unable to reap, it causes serious hardship as much to the creditor who would depend on the regeneration of the amount lent by return of capital with interest.
In this case, if the first defendant must have leave to defend that defense shall be possible only if the defendant furnishes security to the tune of 90% of the amount claimed in all the suits and the additional amount of Rs. 25 lacs towards cost and expenses for all suits and splitting it proportionately to the claims made in the previous suits. The security can be either by means of bank guarantee comprehensively for all the 8 suits or by means of immovable property. The property that is offered by the company shall be duly decided by the Court for its worth before its acceptance and if it is satisfied the Court assessment of the value for which the security is ordered the Court may allow for the defense to be given and take up the matter for trial. If the defendant company is unable to furnish security or offer guarantee in the manner directed the defense shall be struck off and the Court will proceed to consider the case for defendant Nos. 2 and 3 and dispose it in accordance with law.
The security that is directed shall be furnished shall be deposited within two weeks from the date of the passing of the order - Application disposed off.
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2015 (7) TMI 1417
Import of used tyres - hazardous waste - confiscation - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CUSTOMS (IMPORTS), CHENNAI VERSUS VS. GOVINDAN [2013 (2) TMI 638 - MADRAS HIGH COURT] where it was held that as per the United Nations Environmental Programme vis-à-vis Basel Convention regarding Pneumatic tyres, the lifetime of an original tyre casing must not exceed seven years.
Having perused the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and more particularly definition of clause ‘hazardous waste’ and provisions of Rules, 12, 13, 16 and 23 of the said Rules along with Part B of Schedule III of the said Rules, it is held that the responsible authority / officer of Respondent No.2, Ministry of Environment and Forests, through Joint Director, HSM Division, 2nd Floor, Jal Block, Indira Paryavaran Bhavan, Jor Bagh Road, Aliganj, New Delhi-110003 shall visit the place where the goods in dispute i.e. waste pneumatic tyres are lying. Such Officer should be an expert who possesses the expertise to give the opinion about the quality of the pneumatic tyres.
Such Officer shall give a detailed report with regard waste pneumatic tyres and shall specifically opine whether aforesaid pneumatic tyres are reusuable, retreadable, etc. as provided at entry No.B3140 of Part B of Schedule III to the Hazardous Waste (Management, Handling and Disposal) Rules, 2008.
Petition disposed off.
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2015 (7) TMI 1416
Registration of First Information Reports and investigation under the Prevention of Corruption Act, 1988 - Constitutional validity of Sections 2(v) and 2(c)(viii) of the Prevention of Corruption Act - HELD THAT:- Law making is a sovereign power and a State function. It denotes "power" vested with the State to regulate men under juridical laws. Wesley N. Hohfeld a renowned author of "Fundamental Legal Conceptions as Applied in Judicial Reasoning" classifies that jural correlative of 'power' is 'liability'. Thus, someone who holds the power can control, reduce and expand the entitlement of the men upon whom the power is imposed. The men bears 'liability' and exposed to exercise of such power. In a Constitutionally governed State, ordinarily, this power to make law, derives from the Constitution - The public duty thus, is a public function or a legal obligation discharged by a public servant under the command of public right. These public rights necessarily, presuppose existence of positive law of the State or valid Governmental directions. The "public right" or "legal obligation" cannot exist in vacuum, the "right" or "legal obligation" must be relatable to law or an authorised function by the Government. Thus, public duty discharged by a public servant is based on the positive law of the State or valid executive directions.
The public duty under the PC Act refers to discharge of duty in relation to State, public or community at larger interest. Thus, a public servant must be under the positive command under the law to discharge such a duty. If a body or Corporation exercises a State function, without obligation under the existing laws, it is only an exercise of State function and cannot be treated as a discharge of public duty.
The public duty in the context of criminal complaint would arise only when the construction of stadium is accomplished. The event complained, is only one step in the construction of stadium. Purchase of land cannot be considered as discharge of a public function. The functional approach in determining public duty; is to determine the action on account of the impact of public element and if it has control over the public at large.
The complaint is not maintainable and the entire proceedings resulting from the impugned orders have to be quashed. Accordingly, the same are quashed and the writ petitions are allowed.
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2015 (7) TMI 1415
Dishonor of Cheque - insufficient funds - discharge of a liability to the society - whether the complainant/Society has locus standi to file the complaint under Section 138 read with Section 142 or the Nl Act on dishonour of a cheque, which was issued to the Secretary in his name, allegedly in discharge of a liability to the Society?
HELD THAT:- Going by the complaint, obviously, it is seen that the complainant is Devi Vilasam Kettuthengu Sangham and the Sangham is represented by its Secretary Sri. Karunakaran Nair. But going by Ext. P1 cheque, it is seen that the payee is one Karunakaran Nair. The case of the complainant is that, towards the price of coconuts purchased from the complainant/Society, ₹ 16,000/- was due to the complainant/Society and in discharge of the said liability, the said cheque was issued. Therefore, the liability under the cheque was towards Devi Vilasom Kettuthengu Sangham and not towards Karunakaran Nair. But Ext. P1 cheque is seen issued in favour of Karunakaran Nair. It means that though, Karunakaran Nair represents the Society as the Secretary of the Society, the complainant is the Society.
Going by Section 138 of the Nl Act, the statutory language is that where any cheque drawn by a person on the account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or liability, is returned by the bank unpaid due to want of sufficient funds, he shall be deemed to have committed an offence and shall be punished accordingly - According to Section 142 of the Nl Act, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no Court shall take cognizance of any offence punishable under Section 138 of the Nl Act except upon a complaint, in writing, made by the payee or as the case may be, the holder in due course of the cheque. Thus, the payee or the holder in due course alone has the locus standi to file a complaint under Section 142 of the Nl Act.
It is true that Karunakaran Nair could have filed a complaint alleging that in discharge of the liability towards the Society, the cheque was issued in his favour as the Secretary of the Society, since the cheque which was issued in discharge of any other liability also would come under the penal consequences referred to under Section 138 of the Nl Act. But, here there is no such case - The Courts below miserably failed to consider the right or locus standi of the complainant in its correct perspective in view of Sections 138 and 142 of the NI Act.
The conviction and sentence imposed on the revision petitioner on a complaint which was not maintainable is unsustainable under law - the impugned judgment passed by the Trial Court and confirmed by the Appellate Court would stand set aside and the petitioner is acquitted of the offence under Section 138 of the Nl Act - the impugned judgment passed by the Trial Court and confirmed by the Appellate Court would stand set aside and the petitioner is acquitted of the offence under Section 138 of the Nl Act.
This revision petition is allowed.
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2015 (7) TMI 1414
Validity of assessment order - assessment was made alleging that the petitioners had purchased the goods falling under 5th schedule the purchase details from whom the petitioners had purchased had not been set out - HELD THAT:- In the facts of the present case and in the circumstances the assessment order is set aside. However, considering the fact that the assessment orders are set aside, it is deemed appropriate to direct the respondent authorities to furnish the details to the petitioners within a period of four (4) weeks from today and complete the assessment proceedings within a period of three (3) months thereafter. It is needless to mention that the petitioners shall be entitled to raise all the objections both on facts and law.
Petition disposed off.
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2015 (7) TMI 1413
Disallowance of provision made for payment of Gratuity - Since the payment was not made during the year under consideration, AO disallowed the claim of the assessee - CIT(Appeals) found that the approved Gratuity Fund is covered under Section 40A(7)(b) - HELD THAT:- It is not in dispute that the Gratuity Fund is an approved one. The assessee has also made a provision for payment. Since the provision was made for payment of Gratuity fund, which is an approved one, this Tribunal is of the considered opinion that Section 40A(7)(b) of the Act would come into operation. CIT(Appeals) has rightly allowed the claim of the assessee. This Tribunal do not find any infirmity in the order of the lower authority and accordingly, the same is confirmed. - Decided against revenue.
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2015 (7) TMI 1412
Disallowance on account of Employee Stock Option Plan (ESOP) expenses - HELD THAT:- We find that similar issue came up for consideration before the Special Bench of the Tribunal in Biocon Ltd. [2013 (8) TMI 629 - ITAT BANGALORE]. In this case, the Tribunal has held that discount on issue of ESOP is allowable as deduction in computing income under the head ‘Profits and gains of business or profession.’ Since it is on account of an ascertained and not contingent liability, it cannot be treated as a short capital receipt.
Thereafter, the Special Bench has laid down the mechanism for determining as to when and how much deduction should be allowed. It has been held that the liability to pay the discounted premium is incurred during the vesting period and the amount of such deduction is to be found out as per the terms of ESOP by considering the period and percentage of vesting during such period. Deduction of the discounted premium during the years of vesting should be allowed on straight line basis. Then, dealing with the subsequent adjustment to discount, the Special Bench laid down that any adjustment to income is called for at the time of exercise of option by the amount of difference in the amount of discount calculated with reference to the market price at the time of grant of option and market price at the time of exercise of option.
Thus we set aside the impugned order and send the matter to the file of AO for deciding the issue in conformity with the decision taken by the Special Bench in the aforenoted case. Assessee appeal is allowed for statistical purposes.
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2015 (7) TMI 1411
Expenditure incurred on education of the children of the Directors - Allowable revenue expenditure or not? - HELD THAT:- It is not in dispute that the assessee incurred expenditure on higher education and foreign tours of the grandchildren/children of the Directors. As rightly submitted by the Ld. D.R., it is the responsibility of the parents/ grandparents to give education to their children/grandchildren. No business purpose is going to be served to the assessee by incurring expenditure on the foreign education of the children and grandchildren of the Directors.
Merely because the company was in existence for decades, the law laid down by the jurisdictional High Court in RKKR Steels P. Ltd. [2001 (11) TMI 20 - MADRAS HIGH COURT] and in K. Subramaniam Bros [2000 (12) TMI 67 - MADRAS HIGH COURT] would not change. This Tribunal is of the considered opinion that the law laid down by Madras High Court in RKKR Steels P. Ltd. (supra) and in K. Subramaniam Bros (supra) is squarely applicable to the facts of the case. Therefore, this Tribunal do not find any infirmity in the order of the CIT(Appeals) and accordingly, the same is confirmed.
Disallowance u/s 14A - expenditure relatable to earning of dividend disallowed - HELD THAT:- As rightly submitted by the Ld. D.R., AO on the basis of the statement of account called upon the assessee to show cause why the expenditure relatable to earning of dividend should not be disallowed. This clearly shows that the Assessing Officer is not satisfied with the claim of the assessee on the basis of the books of account. Therefore, it would not be correct to say that the Assessing Officer is not satisfied with the correctness of the account. Rule 8D came into operation by Finance Act, 2009, which is mandatory for computation of disallowance under Section 14A of the Act. Therefore, this Tribunal do not find any reason to interfere with the order of the CIT(Appeals) and accordingly, the same is confirmed.
Assessee appeal dismissed.
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2015 (7) TMI 1409
Demand of Dowry - suspected case of death caused due to poisoning - allegation of suicide, correct or not - Sections 304B, 498A Indian Penal Code and Under Sections 3 and 4 of the Dowry Prohibition Act - HELD THAT:- In the case at hand, PW-1 was not confronted with his statement recorded by the police Under Section 161 Code of Criminal Procedure to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1's statement recorded Under Section 161 Code of Criminal Procedure cannot be looked into for any purpose much less to discredit the testimony of PW-1 and the prosecution version.
PW-1 in his evidence clearly stated that one year before the marriage he had sold his land for Rs. 2,50,000/- and he has stated that he withdrew the money from the banks three-four months prior to marriage. PW-1 further stated that he withdrew Rs. 1,00,000/- from his G.P.F. account one year before the marriage and deposited the money in his Central Bank Account, D.B.S. College Branch and whenever he needed, he used to withdraw money from his account. In his evidence, PW-1 has clearly narrated about the details of money paid to the Appellants i.e. payment of amount of Rs. 11,000/- and Rs. 15,000/- was given on the occasion of 'Tika' ceremony', Rs. 50,000/- each paid on three different dates; fixed deposit amount of Rs. 63,000/- left in the account of Archana which was matured was also withdrawn and paid to the Appellants on 11.07.1997. Evidence of PW-1 regarding making payments to the Appellants is cogent and consistent and is amply strengthened by the bank statements. Non-mention of details of money paid to the Appellants and the demand of dowry and cruelty and harassment meted out to Archana in the statement of PW-1 does not affect the credibility of PW-1. As rightly observed by the High Court, it cannot be expected from a father to narrate everything when he himself was in agony due to death of his own daughter.
So far as the suicide note is concerned, Archana is said to have stated that she is taking the step "suicide" because her mental condition is not good and that nobody should be held responsible for her act. It is pertinent to note that suicide note was not discovered during investigation but it was later produced by the Appellants. When PW-1 (father of Archana) was confronted with the suicide note, PW-1 denied it to be in the hand writing of Archana. Appellants have not taken steps to prove the suicide note to be in the hand writing of Archana. Even assuming the suicide note to be true, the fact remains that the death of Archana was unnatural. The contents of the suicide note does not affect consistent version of PW-1 and PW-2.
Where the prosecution has shown that 'soon before her death' the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand for dowry, the presumption Under Section 113B of Evidence Act arises and the Court shall presume that such person who had subjected the woman to cruelty or harassment in connection with any demand for dowry shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused - Prosecution has established beyond reasonable doubts that 'soon before her death' Archana was subjected to cruelty and harassment by her husband and her in-laws in connection with demand of dowry. The accused were not successful in rebutting the presumption raised Under Section 113B of the Evidence Act. Concurrent findings of the courts below convicting the Appellants Under Section 304B Indian Penal Code is based upon proper appreciation of evidence and convincing reasons. The courts below rightly convicted the Appellants Under Sections 304B and 498A Indian Penal Code and Sections 3 and 4 Dowry Prohibition Act and in exercise of jurisdiction Under Article 136 of the Constitution of India, we find no ground warranting interference with the conviction of the Appellants.
Bearing in mind the facts and circumstances of the case and the occurrence was of the year 1997 and that the accused Rahul Mishra is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to imprisonment for a period of ten years. Appellants V.K. Mishra and Neelima Mishra, each of them have undergone imprisonment of more than one year. Appellants No. 1 and 2 are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts and circumstances of the case, life imprisonment imposed on Appellants V.K. Mishra and Neelima Mishra is also reduced to imprisonment of seven years each.
Appeal allowed in part.
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2015 (7) TMI 1408
Disallowance of provision for Gratuity u/s 40(A)(7) - CIT-A by following his own order for the assessment year 2005-06, allowed the claim of the assessee - HELD THAT:- It is not in dispute that the Gratuity fund is an approved one. The assessee also made provision for payment of Gratuity. Therefore, this Tribunal is of the considered opinion that Section 40A(7)(a) may not be applicable to the facts of the case. In fact, Section 40A(7)(b) of the Act would be applicable.
By referring to Section 40A(7)(b) of the Act, this Tribunal, on identical set of facts, allowed the claim of the assessee for assessment years 2005-06 and 2008-09 by confirming an identical order of the CIT(Appeals). Therefore, this Tribunal do not find any infirmity in the order of the CIT(Appeals) and accordingly, the same is confirmed. - Decided against revenue.
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