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Showing 21 to 40 of 1706 Records
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2016 (7) TMI 1693
Allowability of claim of depreciation on fixed assets acquired for the objects of the Trust - Assessment of trust - HELD THAT:- As perused the orders of the Revenue Authorities as well as the cited judgments of Hon’ble High Court of Bombay in the case of CIT vs. Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] wherein it was held “that the Tribunal was right in law in direct the Assessing Officer to allow depreciation on the assets, the cost of which had been fully allowed as application of income under section 11 in the past years.
Thus we are of the opinion that the issue of allowability of depreciation on depreciable assets should be decided in favour of the assessee.
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2016 (7) TMI 1692
Dishonour of Cheque - rebuttal of statutory presumption - acquittal of accused - HELD THAT:- The cheque was issued by the accused and it has returned unpaid by banker of the accused for want of sufficient fund in his account. Therefore, unless and until, the complainant is unable to identify the handwriting in such cheque, it cannot be said that accused has not issued the cheque at all. In all such cases, one basic thing to be recalled is that before filing of a complaint, a statutory notice is must and therefore, in present case also, the complainant has issued statutory notice of 31st December, 2004 by RPAD which is served upon the petitioner as per endorsement on acknowledgment slip of RPAD which is produced on record and thereafter, if petitioner fails to reply to such notice, prima-facie, it is to be believed that he has no defence to put forward and he is simply trying to kill time before he is obliged to pay the amount of cheque in question.
In absence of any cogent and reliable evidence by the accused and as aforesaid, when documentary evidence relied upon by the petitioner- accused is not sufficient to rebut the presumption, practically, there is no substance in the revision, more particularly, when there are concurrent findings of two Courts below confirming the conviction.
In the present case, there is no issue regarding relationship between the parties. There is no issue or evidence regarding misuse of cheque or loss of cheque and therefore, because the complainant is silent on certain facts which otherwise are not material and relevant for the consideration of commission of offence under the Negotiable Instruments Act, it cannot be said that petitioner has succeeded in proving his innocence or that he has rebutted the evidence of the complainant so as to confirm the acquittal in his favour.
Thus, considering the settled legal position that otherwise revisional jurisdiction is limited which does not permit re-appreciation of the entire evidence when there are two concurrent findings of fact by two Courts below. Therefore, in view of the above facts and circumstances of the case and discussion, there is no substance in the revision application, and hence, revision application is dismissed.
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2016 (7) TMI 1691
Levy of penalty u/s 271D - competent authority to levy penalty - assessee had accepted loan / deposit in cash from his wife - violation of provisions of section 269SS - JCIT observed that the assessee had failed to prove the business exigency forcing him to accept the amount in cash and further the said transactions were conducted against some business urgency also and there was no major shortage was proved by the assessee - HELD THAT:- Under the provisions of section 272A(3)(c) of the Act, it is provided that any penalty imposable under sub-section (1) or (2) of the said section shall be imposed by the Joint Director or Joint Commissioner in respect of cases other than the cases covered in clauses (a) & (b) of sub-section (3).
As considered by the CBDT that the statutory provisions clearly state that the competent authority to levy penalty is the Joint Commissioner, therefore, only the Joint Commissioner can initiate proceedings to levy penalty and such initiation of penalty proceedings could not be done by the AO. The CBDT has further acknowledged that statement in the assessment order that the proceedings under section 271D and 271E of the Act are initiated is consequential since the initiation is by an authority who is incompetent. The proceedings in this regard can be initiated only by issuance of notice by the JCIT and the same has to be initiated in the course of assessment proceedings or any other proceedings under the Act. In the above said circumstances, penalty order passed in the present case by way of reference made by the Assessing Officer to JCIT vide letter dated 03.05.2012 is beyond limits prescribed, where the assessment order was completed on 28.12.2011. Hence on this count, penalty order merits to be dismissed and the same is so dismissed.
Merits of levy of penalty under section 271D assessee was running business of contractor and his wife was a civil engineer and was also carrying on her activities. During the course of present assessment proceedings, the assessee had accepted cash from his wife. The wife of assessee was also attached to construction business of the buildings as civil engineer. The assessee claims that where he had received the aforesaid cash amount in cash from his wife, then no adverse interference is called for.
There is merit in the claim of assessee as the intention of introducing the present section 269SS of the Act was to prevent the adjustment of entries by way of cash loans. However, the assessee has received the said cash from his wife and in such circumstances, there is no merit in holding the assessee to have defaulted and being liable for levy of penalty under section 271D - On this count also, we direct the AO to delete penalty levied u/s 271D.
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2016 (7) TMI 1690
Mandation of WTM of SEBI to pass order - Order passed by the WTM of SEBI or not? - validity letter issued by the Chief General Manager when no order passed by WTM of SEBI - HELD THAT:- WTM had instructed that a note be prepared and accordingly, a note was prepared and put up for approval of WTM on June 23, 2016. It is further stated in the said affidavit that alongwith the said note, draft letters to be sent out to the appellant were also placed before the WTM of SEBI. The said note as also draft letters were approved by the WTM on June 27, 2016 and, accordingly, letter dated July 8, 2016 was issued to the appellant, thereby communicating the decision of the WTM of SEBI disposing off the representation of the appellant.
When questioned as to whether there is any order passed by the WTM of SEBI, counsel for SEBI fairly stated that there is no order passed by the WTM of SEBI.
Thus, it is evident that the WTM of SEBI permitted the Chief General Manager to issue a letter to the appellant that the representation made by the appellant has already been disposed off by the WTM of SEBI, when in fact no order was passed by the WTM of SEBI.
In these circumstances, it is apparent that the WTM of SEBI sought to represent that he has already passed an order, when in fact there was no order passed by the WTM of SEBI.
As per the order passed by this Tribunal [2016 (5) TMI 1610 - SECURITIES APPELLATE TRIBUNAL MUMBAI] WTM of SEBI was required to pass an order by June 24, 2016. Accordingly, having heard the appellant on June 21, 2016, the WTM of SEBI was duty bound to pass an order by June 24, 2016. If for any administrative constraints it was not possible to pass an order within the stipulated time, then the WTM of SEBI ought to have sought extension of time, which the WTM of SEBI has failed to do.
Instead, the WTM of SEBI resorted to a totally impermissible mode of representing that an order has been passed when in fact no order was passed by him. In such a case, informing the party that an order disposing of the representation is already passed, without actually passing an order, is nothing but an attempt to mislead in the matter. We strongly condemn the irresponsible approach adopted in the matter.
Since the WTM of SEBI has not passed any order, we would have directed the WTM of SEBI who had heard the appellant on June 21, 2016 to pass an order immediately. However, we are informed that the said WTM of SEBI is travelling.
In these circumstances, we quash the letter issued by the Chief General Manager on July 8, 2016 and direct SEBI to assign the matter to any other responsible WTM of SEBI who shall pass an order on the representation of the appellant within two weeks from today after giving an opportunity of hearing to the appellant. It would be open for such WTM of SEBI to hear the representation of the appellant as also the representation made by the Respondent No. 2 together and pass appropriate order thereon.
Since we are distressed with the manner in which the WTM of SEBI has discharged his quasi judicial duties which is highly detrimental to the interests of the securities market, we direct the registry to forward a copy of this order to the Hon’ble Finance Minister and also to the Chairman of SEBI for information-we disposed of the appeal in the aforesaid terms subject to payment of costs quantified at ₹ 1 lac to be paid by SEBI to the appellant within one week from today.
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2016 (7) TMI 1689
Income taxable in India - royalty receipts - taxability of consideration for facilitating grant of user rights in off-the-shelf software and provision of related support services - India-US Tax Treaty - HELD THAT:- As common point between the parties that the issue relating to the taxability in India of consideration received for facilitating grant of user rights in software to Indian entities was decided against the assessee by the Tribunal in 2013 (8) TMI 952 - ITAT- PUNE] relating to assessment year 2004-05 and 2006-07 and [2015 (2) TMI 1391 - ITAT PUNE] relating to assessment year 2007-08.
Receipt of IT charges by the assessee from CIL and CSSL during the year under consideration - As assessee in the year consideration had provided services to the Indian entities and had received charges in respect of desktop/laptop software licence and internet mail and had determined the value of transactions by allocating cost based on cost estimates
TPO adopted the actual cost incurred by the assessee in order to determine the adjustment, if any, to be made on account of international transactions.
Main plea of the assessee before the authorities below was that cost allocation based on cost estimates was an accepted method for the purpose of determining the arm's length price and if the actual cost allocation results in any erosion of overall base of India, then no adjustment is required to be made to the value of international transaction. This has to be seen from the angle that where the assessee is a foreign company and is recipient of internet mail charges and desktop/laptop service charges from the Indian entities, then in cases where it is held that the assessee should have been charged higher amounts from the Indian entities, then the same would result in reduction of overall tax base of India. In such circumstances, the Indian Transfer Pricing provisions are not to be applied.
DRP in assessment year 2007-08 and the AO in assessment year 2009-10 has not made any adjustment in the hands of assessee on account of internet mail service charges and desktop/laptop service charges though identical international transactions were carried out in the later years also. In the totality of the above said facts and circumstances of the case, we reverse the order of CIT(A) and direct the Assessing Officer to delete the addition. Ground of assessee allowed.
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2016 (7) TMI 1688
Interest on the amount of the bills that have been cleared is still outstanding - HELD THAT:- With the Court having reiterated the directions issued by it in the order dated 29th March 2016 and having dismissed the application of the Department seeking its modification, the above understanding of the Department is not tenable. The reason behind requiring payment of interest on the outstanding amount is to incentivise prompt action by the Department while at the same time compensating the counsel for delays in the settlement of bills for which delay they cannot be held responsible.
The Department will, without any delay, issue instructions consistent with the directions issued in para 7 of the order dated 29th March 2016 to the effect that if there is a delay beyond three working days after the clearing of the bill for payment in making actual payment through RTGS, then the Department will be liable to pay interest on the amount paid to the counsel for the period of delay at the same rate at which refunds are made to the Assessees.
Petition disposed off.
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2016 (7) TMI 1687
Disallowance of prior period expenses - AO made disallowance by observing that for the prior period expenses cannot be allowed as assessee is following mercantile system of accounting and that the assessee has not submitted any basis for determination as to when they crystallized - assessee as regularly followed same system of accounting - assessee submitted that assessee has submitted all the details pertaining to the expenses claimed under the head ‘prior period expenses’. No case has been made out that any voucher is missing or that expense is not genuine, branches spread over a vast area. The assessee is debiting the expenses split over to the subsequent years and the Assessing officer had been allowing the same - HED THAT:- As system of accounting of the assessee has been regularly accepted by the Department in the past. There is no change in the facts and circumstances of the case. It has also been submitted that necessary details were duly submitted before the Assessing officer that all of the expenses are supported by proper vouchers and supporting evidence. It is not the case of the AO that any short coming has been noted in the vouchers. This is also not the case that any distortion in profit has been observed as compared to preceding year in view of the above said expenditure. In these circumstances, in our considered opinion, the Revenue has no cogent reason why the prior period expenses claimed by the assessee which have been consistently so claimed and allowed by the Department in earlier years should be disallowed in the current year.
The case laws referred by assessee above duly support the above proposition. In this regard we may gainfully refer to the Hon'ble Delhi High Court decision in the case of CIT Vs. Jagjit Industries Limited [2010 (9) TMI 58 - DELHI HIGH COURT] held that if a particular accounting system has been followed and accepted and there is no acceptable reason to differ with the same, the doctrine of consistency would come into play. The said accounting system has been followed for a number of years and there is no proof that there has been any material change in the activities of the assessee as compared to the earlier years. Nothing has been brought on record to show that there has been distortion of profit or the books of account did not reflect the correct picture in the absence of any reason whatsoever, there was no warrant or justification to depart from the previous accounting system which was accepted by the department in respect of the previous years.
This system of accounting has been regularly followed and the Department has not disputed about this in the past. We also agree with the contention that the Assessing Officer has clearly erred in drawing adverse inference on the crystallization of these expenditures. It is not the case of the AO that any voucher of the assessee company has been found to be Jacking credibility. Thus assessee appeal allowed.
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2016 (7) TMI 1686
Valuation of Tenali house property - Real owner - assessment in whose hand? - CIT(A) has considered the value of the site as per the registered sale deed and as far as cost of construction of the building is concerned, has given 15% deduction by taking into consideration the local rates (PWD rates) and 10% deduction to self supervision, thus directed the A.O. to adopt the total value of the Tenali house property including site and construction - objection raised by the Ld. Counsel for the assessee in respect of assessment which has to be made in the hands of the assessee’s wife - HELD HAT:- After careful consideration of the assessment order and also order passed by the Ld. CIT(A), keeping in view of the specific observations made by the ITAT that there is no evidence of record which suggest that assessee’s wife had some independent source of income. It is trite law that in the case of house wife, it is the customary practice of house holder to purchase property in the name of the wife, particularly when lady is a house wife and no regular source of income is proved.
A.O. keeping in view of the observations made by the ITAT, called the assessee to explain the source of investment. The assessee’s wife was not able to substantiate the source. Therefore, based the observation made by the Hon’ble ITAT, assessment was completed. On appeal, the Ld. CIT(A) has given partial relief. We find that there is no infirmity in the order passed by the Ld. CIT(A). This ground of appeal raised by the assessee is dismissed.
Loss incurred in business in the block assessment period for set off against the income - assessee has submitted that the loss incurred by the assessee in his business in the block assessment period may be set off against the income - HELD THAT:- We find that the A.O. has passed the consequential order in respect of the construction of the Tenali House property keeping in view of the observations made by the Hon’ble ITAT. From the ITAT order this issue is not emanating, therefore, this ground raised by the assessee cannot be adjudicated. Therefore, this ground of appeal raised by the assessee is dismissed.
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2016 (7) TMI 1685
Maintainability of petition - permission to petitioner to file documents before the Additional Director, Directorate of Revenue Intelligence (DRI), Mumbai - HELD THAT:- The writ petition can be disposed of at this stage by permitting the petitioner to file documents before the Additional Director, Directorate of Revenue Intelligence (DRI), Mumbai, within eight weeks hence. Thereafter, the said authority shall intimate the petitioner so that the petitioner can appear and explain and answer the queries of the authorities.
Petition disposed off.
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2016 (7) TMI 1684
Power of Court to transfer a civil or criminal case pending in any Court in the State of Jammu and Kashmir to a Court outside that State and vice versa - Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure - HELD THAT:- This Court has by a long line of decisions given an expansive meaning and interpretation to the word 'life' appearing in Article 21 of the Constitution. In MANEKA GANDHI VERSUS UNION OF INDIA [1978 (1) TMI 161 - SUPREME COURT], this Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful and liveable, (to be checked). In SUNIL BATRA VERSUS DELHI ADMINISTRATION [1978 (8) TMI 228 - SUPREME COURT] the right against solitary confinement and prison torture and custodial death was declared to be a part of right to life.
Even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation.
One of the questions that fell for consideration in that case was whether this Court could in exercise of its powers under Articles 136 and 142 withdraw a case pending in the lower court and dispose of the same finally even when Article 139A does not empower the court to do so. Answering the question in the affirmative, this Court held that the power to transfer cases is not exhausted Under Article 139A of the Constitution. This Court observed that Article 139A enables the litigant to seek transfer of proceedings, if the conditions in the Article are satisfied. The said Article was not intended to nor does it operate to affect the wide powers available to this Court under Articles 136 and 142 of the Constitution.
In the cases at hand, there is no prohibition against use of power Under Article 142 to direct transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa. All that can be said is that there is no enabling provision because of the reasons which we have indicated earlier. The absence of an enabling provision, however, cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir. At any rate, a prohibition simplicitor is not enough. What is equally important is to see whether there is any fundamental principle of public policy underlying any such prohibition. No such prohibition nor any public policy can be seen in the cases at hand much less a public policy based on any fundamental principle - The provisions of Articles 32, 136 and 142 are, therefore, wide enough to empower this Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers this Court to transfer cases. We accordingly answer the question referred to us in the affirmative.
The transfer petitions shall now be listed before the regular bench for hearing and disposal on merits.
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2016 (7) TMI 1683
Deemed suspension - Whether any departmental inquiry has been initiated against the respondent? - whether, any charge sheet has been filed in the criminal court from the date of registration of the FIR against the respondent? - HELD THAT:- While, there can be no quarrel to the proposition that merely because a period of suspension is long, that by itself cannot be a ground to withdraw the order of suspension - the decisions of the Supreme Court in Allahabad Bank [1997 (3) TMI 569 - SUPREME COURT] and in Rajiv Kumar [2003 (7) TMI 686 - SUPREME COURT] sought to be relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case.
The present case can be decided on the touchstone of the law laid down by the Apex Court in the case of Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT]. In this case the respondent was arrested on 20.09.2013 based on an FIR No. 16/2013. He was thereafter placed under deemed suspension. The respondent was released on bail on 01.11.2013. Till date neither any departmental proceedings have been initiated against him by the petitioners nor a charge-sheet has been filed in the criminal court.
There are no infirmity in the order passed by the Tribunal which would require us to interfere in the proceedings under Article 226 of the Constitution of India. No ground is made out to entertain this petition - petition dismissed.
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2016 (7) TMI 1682
Validity of adjustment proposed by TPO u/s 92CA (5) - order of the DRP as not in consonance with the provisions of sec.144C - HELD THAT:- DRP in this case, against the provisions of the Act, passed a very non-speaking order, though the assessee’s counsel made a voluminous submission before the DRP against the draft assessment order. It is accepted by the DRP that it has to be considered every point of dispute and pass a speaking order.
Contrary to this, the order passed by the DRP very critic and there is no addressing the issues raised by the assessee mentioned herein above and it was not properly adjudicated.
Being of, we are not in a position to uphold the order of the DRP as it is not consistent with the provisions of sec.144C of the Act.
We find that the Supreme Court in the case of Sahara India [2008 (4) TMI 4 - SUPREME COURT] has held that even “an administrative order has to be consistent with the rules of natural justice”. The same view has been taken in the case of GAP International Sourcing India (P) Ltd. vs. DCIT [2010 (12) TMI 94 - ITAT, NEWDELHI]
Further, in the case of M/s. Adobe Systems India Private Ltd. [2011 (1) TMI 933 - ITAT NEW DELHI] held that when the DRP passed the order in cursory and laconic order without going into the details of the submissions, it should be decided afresh. Considering all these facts and circumstances, we are inclined to the remit the issues back to the DRP to pass a speaking order on the disputed issues.
Hence, we remit the issue back to the file of DRP to consider the objections of the assessee in proper perspective and pass a speaking order.
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2016 (7) TMI 1681
Unaccounted income - unaccounted interest receipts - documentary evidence seized during the search and the statement of the other family members - whether ITAT right in law in deleting the addition made on the proportionate share of interest and treated by it as undisclosed income of the respondent for the block period? - HELD THAT:- Revenue would not be justified in resting its case on the loose paper and documents found from the residence of a third party even if such documents contain narrations of transactions with the assessee-Company. See Chuharmal v. CIT [1988 (5) TMI 1 - SUPREME COURT]
Also in the absence of any opportunity having been given to the assessee to cross-examine the person from whose possession loose papers were recovered, the same could not be relied upon. See S.C. Sethi case [2006 (3) TMI 60 - HIGH COURT, RAJASTHAN] - Decided in favour of assessee.
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2016 (7) TMI 1680
Suit for recovery of principal amount together with interest for the period prior to the institution of the suit together with future interest - guilty of acts of misappropriation or not - pleading is that assets of the defendant company alleged to have been sold fraudulently were sold in the lifetime of Shri Sudhir Sareen.
HELD THAT:- If the defences which are in violation of laws and amount to defrauding the taxation authorities cannot be permitted to be taken. A litigant cannot be permitted to take a stand in the Court diametrically opposite to the stand taken by it before Taxation Authorities. If the courts permit such stand to be taken in the course of judicial proceedings and should the courts come to the rescue of such a litigant, in this case for avoiding the recovery of dues which the litigant elsewhere has represented to be due from her, I am afraid the courts would be becoming privy to abuse of their own process.
In Ram Sewak Vs. Ram Charan [1981 (11) TMI 190 - ALLAHABAD HIGH COURT] the parties had been keeping double set of accounts for evading payment of income-tax and sales tax; the trial court reported the matter to the Taxation Authorities; the High Court held that the court should have refused to entertain the suit on the ground of public policy as it involved directing the recovery of an amount found to be due to either party as a share of the profits which had been deliberately concealed by the parties from the books of account in order to evade the payment of taxes. It was further held that no court can countenance a deliberate evasion of the tax laws of the country and to lend the aid of the Court for recovering an amount which had been deliberately kept concealed by the parties in order to evade payment of the taxes due thereon. It was yet further held that if the court was to do so, it would amount to aiding and abetting of the evasion of the laws by the Court itself.
It is not open to the defendant to before this Court contend that the monies which the defendant in its books of accounts and balance sheet has shown as loan from the plaintiff and repayable to the plaintiff (and on the basis whereof the defendant has been assessed for tax) are not a loan from the plaintiff but "in the nature of gift" from the plaintiff and not repayable to the plaintiff.
Supreme Court, in Karam Chand Thapar & Bros. (P) Ltd. Vs. Commissioner of Income Tax, Calcutta [1971 (8) TMI 29 - SUPREME COURT] held the circumstance that the assessee was showing the shares as investment shares in its books of accounts as well as in the balance sheet, though not conclusive, but is relevant circumstance on which reliance could be placed upon and necessary inference drawn. It was further held that the explanation, that the Company had to do so because of provisions of the Company Law, was unfounded.
It is not the case of the defendant in the present case that the plaintiff Company was authorised to make gift or that the defendant Company was authorised to receive gift. For this reason, the defence of the amount being by way of gift or in the nature of gift cannot be entertained - there are no basis in law to put the present suit to trial insofar as the claim of the plaintiff company for recovery of principal amount of Rs. 1.48 crores is concerned.
In the entirety of the facts and circumstances, it is deemed appropriate to award interest to the plaintiff company on the said sum of Rs. 1.48 crores w.e.f. 1st April, 2015, at the rate of 8% per annum till the date of this decree and for a period of three months from the date of this decree within which time the defendant company is expected to discharge its debt under the decree. However if the decretal amount is not paid within three months herefrom, with effect from the expiry of three months, the principal amount of Rs. 1.48 crores shall incur interest @ 15% per annum. Further, if the payment of the entire decretal amount is made within three months, the plaintiff company shall not be entitled to any costs of the suit; however if no such payment is made, the plaintiff company shall also be entitled to costs of this suit. Counsel's fee assessed at Rs. 55,000/-.
Application disposed off.
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2016 (7) TMI 1679
Additional liability on account of exchange rate fluctuation allowable as a deduction in the computation of the applicant's business profits - HELD THAT:- Tribunal while allowing the Revenue's appeal followed its order in the case of the applicant assessee for AY 1985-86 on an identical issue. The applicant assessee being aggrieved filed an application for Reference to the Tribunal and it on an identical question a Reference was made to this Court.
On 21st August 2014 [2014 (9) TMI 283 - BOMBAY HIGH COURT] this Court answered the identical question referred to it in Reference No. 271 of 1997 in favour of the applicant assessee and against the Revenue. This by following the decision of the Apex Court in Commissioner of Income Tax Vs. Woodward Governor India Pvt. Ltd. [2009 (4) TMI 4 - SUPREME COURT]
Decided in favour of the applicant assessee and against the Revenue.
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2016 (7) TMI 1678
Invalid CIS scheme - non seeking registration with SEBI - violation of CIS Regulations - collection of subscription amount after the ex-parte interim order - refund to investors - HC upholding the decision of SEBI that the Appellants have floated and operated CIS without registering with SEBI and hence in violation of CIS Regulations, since the schemes are closed by the Appellants voluntarily and substantial amount is refunded to the investors, we grant extension of two years time from the date of this order to the Appellants to enable them to pay the balance amount refundable to the investors.
HELD THAT:- No substance in these appeals, therefore, the civil appeals are dismissed.
Pending application, if any, stands disposed of.
As clarified that the respondent shall not collect further amount from the investors until it is registered as CIS and shall also give details to the SEBI with regard to the amount disbursed by it, at the end of every quarter. The first such statement shall be given in the first week of October about the payments made up to 30th September, 2016.
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2016 (7) TMI 1677
Rectification of mistake u/s 254 - Appeal challenged by the assessees after a period of 04 years - HELD THAT:- In the case of Parsuram Potteries Works Co. Ltd [1976 (11) TMI 1 - SUPREME COURT] observed that stale issues should not be re-activated beyond a particular stage and there must be a point of finality in all the legal proceedings; lapse of time must induce or set at rest all judicial and quasi-judicial controversies as it must in others spheres of human activity.
A proper approach is to challenge the order before a higher Forum, either under section 260-A of the Income Tax Act or in writ jurisdiction, by taking immediate steps, after disposal of the appeals.
Here is a case where there was more than 07 years delay and in fact, the assessees did not choose to pursue such a kind of remedy. At the same time, assessee submits that the impugned order passed by the Tribunal cannot be treated as an order passed under section 254(1) - Section 254(2) of the Act speaks of rectifying mistakes in the orders passed under section 254(1) of the Act and if the assessees claim that there was no order passed under section 254(1), there is no right of filing a petition u/s 254(2) of the Act.
The impugned order was passed by the Tribunal u/s 254(1) of the I.T. Act and in the given circumstances, dismissal of the appeals is the only conclusion that can be drawn which could have been challenged by the assessees within a period of 04 years and beyond such period the Tribunal has no power to condone the delay and therefore, the M.As are not maintainable.
Dismissal of appeal for want of prosecution - Even if it is presumed that the Tribunal has got the power to condone the delay the reasons given by the assessees herein are vague and not supported by proper evidence and therefore, it has to be concluded that the assessees have no sufficient cause for the delay in filing M.As.
If the assessees claim that the common order passed by the Tribunal in 2008, dismissing the appeals for want of prosecution, cannot be equated to an order passed under section 254(1) of the I.T. Act and therefore, section 254(2) does not come into play and consequently, the period of limitation does not apply, then the remedy to the assessees would have been to approach an appropriate Forum to challenge the order which is claimed to be invalid in law. But the assessees chose not to prefer either appeal or writ petition before the Hon’ble High Court and thus, by efflux of time it has attained finality and such stale issues should not be reactivated at this stage in the light of observations of the Hon’ble Supreme Court in the case of Parsuram Potteries Works Co. Ltd., vs. ITO [1976 (11) TMI 1 - SUPREME COURT] - M.As filed by the assessees are dismissed.
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2016 (7) TMI 1676
Inclusion of MIDC's notified area, i.e., TTC-Thane-Belapur Industrial Area in Notification dated 17 December 1991, by which, NMMC came to be constituted - petitioners contend that the MIDC is the Special Planning Authority insofar as such notified area is concerned and therefore, it is only the MIDC, which is competent to levy any tax, cess or other charges upon the petitioner's industries/properties, which are located within such notified area.
HELD THAT:- There is no merit in the contention of Mr. E.A. Sasi that the property taxes or cess levied by the NMMC had not been challenged in case of Small Scale Entrepreneurs Association [[2010 (7) TMI 957 - BOMBAY HIGH COURT]] and that the challenge was only restricted to the Notification dated 17 December 1991, to the extent, the notification, whilst constituting the NMMC had included within its jurisdictional area, the MIDC's notified area, wherein, the petitioners' properties/industries are located. Once, the challenge to such inclusion came to be negatived, as a corollary therefore, the NMMC was held entitled to levy property taxes and other taxes upon the petitioners' industries, though, such industries may be stated to be located within the MIDC's notified area.
Insofar as the challenge to validity of Rule 41 as aforesaid is concerned, it must be noted that nothing prevented the Small Scale Entrepreneurs Association from raising such challenge in Writ Petition No. 2787 of 2001, which has since been disposed of on 8 July 2010. It is impermissible for parties to raise challenges in installments, when it is apparent that the entire purpose for institution of Writ Petition No. 2787 of 2001 was to question the levy of property taxes or other taxes by the NMMC, insofar as the petitioners' properties/industries, which are located within MIDC's notified area are concerned.
The petitioners have not disclosed as to whether in pursuance of liberty granted by this Court in Writ Petition No. 2787 of 2001, the petitioner had instituted appeals under Section 406 of the MMC Act in order to question the levy of cess. Possibly, the petitioners have avoided taking such route because Section 406(8) of the MMC Act, inter alia provides no appeal under sub-section (6) shall be entertained unless the amount of disputed tax claimed from the appellant has been deposited by the appellant with the Commissioner.
By adding some challenge to the vires of the provisions of the MMC Act or the rules made thereunder, so as to evade the requirement of pre-deposit, as mandated in Section 406(8) of the MMC Act. The extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India is not meant to by-pass the statutory remedies otherwise available under the MMC Act - Rule is discharged in Writ Petition No.8506 of 2016 and interim order is hereby vacated.
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2016 (7) TMI 1675
Assessment of trust - Addition u/s 68 - donation received from 234 persons - capacity and genuineness of donors remained unproved - HELD THAT:- As we find that the order of the CIT(A) is cryptic and non speaking. If the CIT(A) was of the opinion that the donations were anonymous, then he ought to have invoked the provisions of Section 115BBC but he failed to do so, which amounts to miscarriage of justice. As held by the AO that the donations received by the assessee are not anonymous donations. The details in respect of the names and addresses are available on record in the form of donations receipts, which were impounded in the course of survey.
As the CIT(A)’s order is non speaking order without recording any independent finding or giving any reason. In view of aforesaid finding, we send back this matter to the CIT (A) for verifying all the documents relating to donors PAN, addresses etc. and to decide the matter afresh after allowing adequate opportunity of being heard to the assessee.
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2016 (7) TMI 1674
Adoption of unfair means in the examination - it is alleged that petitioner has used page No. 23 of the answer sheet as rough page with a view to reveal his identity to the examiners and therefore it was alleged that it is an unfair means - Alleged misconduct proved or not - HELD THAT:- It has emerged from the record that the petitioner appeared in 3rd year of MBBS examination part II which was held during the period between 02.01.2016 to 12.01.2016 followed by practical examination which was taken between 17.01.2016 to 23.01.2016. However, the result of the petitioner was not declared. Thereafter petitioner was intimated vide communication dated 15.02.2016 that his result was reserved and he was also asked to remain present before the Disciplinary Committee of the University on 24.02.2016. If we carefully examine the said intimation, it is clear that in the said communication no allegation was levelled against the petitioner and he was also not informed that for what purpose he has to remain present before the Disciplinary Committee. Petitioner, when he remained present on 24.02.2016 before the said committee, on the very day he was informed to explain why he has done rough work on page No. 23 of the answer sheet. It was also orally alleged against him that he had done the same thing with a view to disclose his identity to the examiners.
If the respondent-University was of the opinion that by doing rough work on page 23, the petitioner has disclosed his identity then the respondent-University ought to have conducted a detailed inquiry with regard to the said allegation and after inquiry if the said fact is proved against the petitioner then he could have been punished. However, in the present case, no such inquiry was held and on the basis of presumption and assumption the impugned order is passed by the respondent-University which is not permissible in the eye of law. In the facts of the present case, we are of the opinion that it is a case of no evidence against the petitioner and therefore the respondent University ought not to have passed the impugned order.
From the record, it is further clear that in the impugned order dated 08.03.2016 the respondent-University has stated that the alleged misconduct against the petitioner is proved and therefore the order of penalty is passed against him. However, it is not at all stated how the alleged misconduct is proved against the petitioner. There is no discussion or reference with regard to the same and therefore the said order is a non-speaking order.
In the present case, it is clear that no reason is given in the impugned order passed by the respondent-University that in which manner the allegation levelled against the petitioner has been proved. The respondent University cannot explain the reason by filing an affidavit annexing the report of the Disciplinary Committee. The learned Single Judge has also failed to consider the fact that the petitioner was not supplied with the copy of the report of the Disciplinary Committee.
The learned Single Judge has committed an error and therefore the impugned judgment is required to be quashed and set aside - appeal allowed.
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