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Showing 21 to 40 of 1691 Records
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2016 (7) TMI 1678 - SC ORDER
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 - ITAT HYDERABAD
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 - BOMBAY HIGH COURT
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 - ITAT LUCKNOW
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 - GUJARAT HIGH COURT
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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2016 (7) TMI 1673 - CESTAT NEW DELHI
Denial of benefit of abatement of 67% in terms of notification No. 1/2006 - denial on the ground that the appellant have simultaneously availed the cenvat credit of duty - HELD THAT:- Revenue has no objection to the early hearing and submits that the matter can be remanded to the lower authorities for fresh consideration in the light of above referred decision of the Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], inasmuch as the same was not available at the time of adjudication.
The matter is remanded back to the original adjudicating authority for fresh decision.
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2016 (7) TMI 1672 - ITAT CHANDIGARH
Levy of penalty u/s 271(1)(c) - non admission of additional evidences - deduction on account of commission paid to several persons who have procured new LIC policies from different persons - addition was made because the assessee could not adduce complete details and list of the persons to whom commission was paid - assessee has now filed application for admission of additional evidence, in which it is stated that the list of sub-agents and their affidavits alongwith names of the parties who had been introduced by each sub-agents alongwith list was filed as additional evidence - CIT (A) did not consider these nine affidavits of the persons in support of claim of payment of commission because no request under Rule 46A of the Income Tax Rules was made - HELD THAT:- Though the findings given in the quantum proceedings are relevant and have probative value but these are not conclusive for levy of penalty against the assessee under section 271(1)(c) - It is well settled that the quantum and penalty proceedings are distinct and independent proceedings. Assessee in the penalty proceedings still could have explained that it is not a case of levy of penalty based on the evidence on record.
Hon'ble Supreme Court in the case of Tek Ram Vs. CIT [2013 (8) TMI 459 - SC ORDER] and case of CIT Vs. Mukta Metal Works [2011 (2) TMI 250 - PUNJAB AND HARYANA HIGH COURT] admitted the additional evidence being relevant and required to be looked into.
We admit these additional evidences for the purpose of hearing - contention of the D.R. that same additional evidences were not admitted by the CIT (Appeals), has no merit because the assessee did not make any request under Rule 46A of the Income Tax Rules for admission of the additional evidence. These additional evidences so admitted would have bearing on the issue and could explain the matter in issue with reference to the penalty matter
We set aside the orders of the authorities below and restore the issue of levy of penalty to the file of the Assessing Officer with direction to redecide the issue in the light of additional evidence so admitted above - Appeal of the assessee is allowed for statistical purposes.
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2016 (7) TMI 1671 - ITAT MUMBAI
Reopening of assessment u/s 147 - depreciation on ‘computer based’ editing equipments at 25% as against @ 60% claimed by the assessee treating the same as computer - reassessment in the instant case is clearly beyond a period of four years from the end of the relevant assessment year - HELD THAT:- No lapse on the part of the assessee to disclose fully and truly all the material facts necessary for the computation of its income, and neither has any been pointed to us, the claim has been subject to verification by the A.O. in the original proceedings. Further, though there is no discussion by him in the assessment order, he can only be considered as conscious and alive to this claim as the assessee had clearly bifurcated the editing equipments into two components, i.e., recorder based/others and computer based, claiming depreciation at the general and the enhanced rate (of 60%) thereon respectively, filing details in their respect, called for separately. This then is a case of review, impermissible under the Act.
CIT(A) has allowed the reopening on the basis that there is no evidence to show that the assessee has furnished all the necessary details, including bills and vouchers for purchase of the equipments or their specification or technical expert reports, etc. during the course of the original assessment proceedings, so that the A.O. forming a view that the assets under reference may not qualify to be computers, cannot be entirely faulted. We cannot agree.
No sound reason with the A.O., but merely a reason to suspect that the assessee’s claim may not be correct. Two, the assessee had furnished all the details as were called for during the original proceedings, including details of computer based equipments. There is nothing to show that these details were not true or correct in any respect, much less material. Thirdly, the assessing authority forming a view on the basis of the material not found incorrect or untrue, is nevertheless a view, so that it becomes a case of review. Rather, as it appears, the A.O.’s action is guided by the consideration of being consistent in-as-much as like claim was not accepted by the Revenue for the immediately preceding year, i.e., A.Y. 2004-05. That by itself cannot be a ground for reopening. Decided in favour of assessee.
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2016 (7) TMI 1670 - DELHI HIGH COURT
Permission to appoint the petitioner as the guardian ad litem of the respondent No. 3 - Application filed on the ground that he is not capable of securing his affairs and her interest does not clash with that of her husband, in any manner - amicable settlement of disputes - Order XXXII Rule 15 CPC - HELD THAT:- The necessity of holding an inquiry under Rule 15 Order XXXII CPC emanates from the fundamental right of equal opportunity provided to every person under the Constitution of India, to sue or be sued and prosecute/defend his/her claim in a court of law. The cardinal principle of inquiry required to be conducted by a court as envisaged under Rule 15, is to assess as to whether the person concerned suffers from any unsoundness or mental infirmity, which makes him incapable of protecting his interest in a litigation. Thus, holding of an inquiry is a sine qua non and the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind and/or incapable of protecting his/her interest in a litigation. The discretion is ultimately left with the court concerned to conduct an independent and impartial evaluation as it may deem fit and proper, depending on the facts and circumstances of each case. Only after arriving at the conclusion that a person is mentally incapable or unable to prosecute/defend the case, would the court proceed to appoint a fit person as his guardian ad litem. While doing so, the court must be mindful of the fact that such a person does not have any interest that is adverse to the applicant.
Coming to the case in hand, the respondent No. 3 has presented himself before the court and during its interaction with him, posed several questions about his routine life, his family members and work and other aspects. He has stated that he had a major road accident in the year 1999, and had suffered serious brain damage as a result whereof, he has lost the ability to read and write - the respondent No. 2 is the younger sister of the respondent No. 3, and is present in Court, but he has not been able to identify her.
Considering the mental faculty of the respondent No. 3 as has emerged from interacting with him, this court is of the opinion that he would not be in a position to protect his interests in the present petition as he appears to be a person of weak intellect, ineffectual and incapable of looking after his interests and affairs. Given the said circumstances, it is deemed appropriate to appoint the petitioner as the guardian ad litem of her husband, the respondent No. 3 so that his interests can be protected in the present litigation.
Application allowed.
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2016 (7) TMI 1669 - ITAT DELHI
Disallowing the notional interest paid by the assessee attributable on the non interest bearing advances out of interest bearing funds - HELD THAT:- It is seen that the Ld. CIT (Appeals) has examined the issue in detail in his order for AY 2006-07 and has agreed with the aforesaid contentions of the assessee. The copies of FIRs have also been placed on record and the contention of the assessee about having surplus funds as on 31.03.2002 is also correct. Hence, we find no reason to interfere with the order of the Ld. CIT (Appeals) and uphold the same.
Disallowance u/s 14A - contention of the assessee before the AO that the provisions of sec. 14A did not apply in the relevant asstt year as no exempt income had been earned on the bonds/investments - HELD THAT:- If there were funds available both interest-free and over draft and/or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company if the interest-free funds were sufficient to meet the investment. In this case this presumption is established considering the finding of fact by the Commissioner of Income-tax (Appeals) - Thus following the ratio laid down by the Hon’ble Bombay High Court in the case of Reliance Utilities [2009 (1) TMI 4 - BOMBAY HIGH COURT] we confirm the order of the Ld. CIT (A).
Disallowances of expenses on the ground as incurred in cash and remained un-vouched - HELD THAT:- CIT (Appeals) has opined that he agrees with the submission of the assessee that maintenance of proper vouchers for petty expenses is not possible and that producing all the vouchers procured from various locations before the AO after a long period is in onerous task. The ld. CIT (A) also held that no comments have been made in the tax audit report regarding the genuineness of the expenditure claims. Having perused the records and also the reasoning adopted by the Ld. CIT (A) on this issue as well as the fact that the Ld. DR could not successfully controvert the observations of the Ld. CIT (A), we find no reason to differ from the conclusion arrived at by the ld. CIT (Appeals) and while upholding his finding on the issue, we dismiss ground of the Department’s appeal.
Disallowance under the sub-head “sales promotion dealer expenses” under the head “advertisement and sales promotion expenses”- HELD THAT:- It is seen that section 40A(3) provides that where the assessee incurs any expenditure in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds Rs. 20,000/- a disallowance shall be made. However, it is apparent from the assessment order that this disallowance has been made without bringing out the fact on record as to whether these cash expenses of Rs. 40,000/- pertained to one single payment or comprised of a bundle of small payments made for different purposes. Hence, in absence of any specific recording of fact by the AO, we are unable to uphold this disallowance and set aside the order of the ld. CIT (Appeals) on this issue and direct the AO to delete this addition. Accordingly, ground of the assessee’s appeal is allowed.
Disallowance of club expenses - CIT(A) deleted this disallowance by holding that the assessee has paid fringe benefit tax (FBT) on the entire amount and on the principle of equity, no amount can be taxed twiceHELD THAT:- DR has not disputed the fact that FBT has been paid on the impugned additions and the Ld. CIT (A) has also given a concrete finding on the issue. Hence, drawing strength from the decision of Micro Turners [2013 (3) TMI 466 - ITAT DELHI] we find no reason to interfere with the finding of the ld. CIT (A) on this issue and accordingly, uphold the adjudication by the ld. CIT (A). Hence, ground of the Department’s appeal is dismissed.
Addition on account of alleged penal expenditure - HELD THAT:- On appeal the ld. CIT (Appeals) gave a categorical finding that out of the total amounts disallowed, only Rs. 533/- pertained to late fee penalty and the balance pertained to tax and interest on late deposit which had wrongly been shown under the head “miscellaneous expenses”. In view of the specific finding of the ld. CIT (A), we find no reason to interfere with the adjudication of the ld. CIT (A) on this issue. Ground of the Department’s appeal is accordingly dismissed.
Addition of personal marriage gift expenses of the Directors of the assessee - HELD THAT:- AO held that the marriage gifts were made by the individuals and as such they were personal expenses not related to the business of the company and they were accordingly disallowed. The ld. CIT (A) held that since the assessee has already declared the amount and paid tax under FBT, the disallowance merited deletion. Considering the factual matrix as well as drawing strength from the decision of the co-ordinate Bench of ITAT Delhi in ACIT vs Micro Turners [2013 (3) TMI 466 - ITAT DELHI] we find no reason to disturb this finding of the ld. CIT (A) on this issue. In the result, ground of the Department’s appeal is dismissed.
Addition of non-business expenditure - HELD THAT:- CIT (A) held that since FBT had already been paid, no disallowance was called for. Having heard the rival submissions and perused the material on record and also the decision rendered by the coordinate bench in own case we are of the opinion that the matter stands covered by the said decision of the Tribunal in favour of the assessee.
Excessive expenditure on horticulture - HELD THAT:- Having considered the rival submissions and the findings in the impugned order, we are of the considered opinion that the ld. CIT (A) has not dealt with this issue in an appropriate manner. On one hand, he has accepted the contention of the assessee that the evidences were furnished before the AO and on the other hand, he also mentions the fact that the AO has mentioned in his remand report that these were fresh evidences. Hence, in the interest of justice, we restore the issue to the file of the AO for fresh adjudication after giving assessee due opportunity to present its case. Ground is allowed for statistical purposes.
Addition of expenses incurred by the assessee on account of publishing the photo of its founder Sh. Jankidas Kapoor on his death anniversary - HELD THAT:- It is seen that this issue/identical issue of advertisement was not before the coordinate Bench of the Tribunal in AY 2000-01 and hence the Ld. CIT (A) has allowed the assessee’s ground on a wrong appreciation of facts. Hence we have no option but to restore the issue to the file of the Ld. CIT (A) for de novo adjudication after giving due opportunity of being heard to the assessee. Ground of the department’s appeal is allowed for statistical purposes.
Disallowance under prize and rewards - HELD THAT:- CIT (A) has stated in the impugned order that the AO has not given any factual finding regarding the genuineness of the payments. CIT (A) has noted that giving prizes and rewards is a policy of the Company and the prize money is included in the salary of the employee on which TDS is also duly deducted. Considering the finding of fact recorded by the ld. CIT (A) which could not be controverted by the Department, we find no reason to interfere on this issue as well. Ground of the department’s appeal is accordingly dismissed.
Penalty u/s 271(1)(c) - HELD THAT:- No case can be made out for furnishing inaccurate particulars for both the years under appeal. Respectfully following the dicta of the Hon’ble Apex Court in the case of CIT vs Reliance Petro Products Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT], we find no reason to disturb the findings of the Ld. CIT (A) for both the years under appeal and we uphold the same.
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2016 (7) TMI 1668 - MADRAS HIGH COURT
Levy of stamp duty - Gift Deeds of Settlement Deeds in respect of donation of lands by the citizens to the local authority or in favour of the Government - HELD THAT:- In the light of G.O.Ms.No.117, Commercial Tax and Religious Endowments Department, dated 27.01.1982, the petitioner is liable to pay only a sum of Rs.100/- towards the stamp duty and therefore, insistence of stamp duty as demanded by the Sub Registrar, Pollachi, is legally unsustainable and prays for appropriate orders.
The writ petition is disposed of and the respondent is directed to consider the scope and purport of G.O.Ms.NO.117, Commercial Tax and Religious Endowments Department, dated 27.01.1982 and take appropriate action on the representation of the petitioner dated 06.06.2016 and communicate the decision taken to the petitioner within a period of two weeks from the date of receipt of a copy of this order.
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2016 (7) TMI 1667 - SUPREME COURT
Forgery - misappropriation of loan amounts by forging their signatures and thumb impressions - HELD THAT:- In the case of SUKHVINDER SINGH AND ORS. VERSUS STATE OF PUNJAB [1994 (5) TMI 280 - SUPREME COURT], it was held that the direction given by the Tehsildar-Executive Magistrate to the accused to give his specimen writing was clearly unwarranted and, therefore, the said specimen writing could not be made use of during the trial and the report of handwriting expert was rendered of no consequence at all and could not be used against the accused to connect him with the crime. It was held that the direction to an accused to give specimen handwriting can only be issued by the court holding enquiry under the Code of Criminal Procedure or the Court conducting the trial of such accused.
High Court differentiated Sukhvider Singh's case from the case at hand on facts as also on law. High Court pointed out that in the matter at hand, admittedly, the authority-Executive Magistrate before whom the specimen signatures were given did not have the authority to enquire into or try the case. However, as observed by the High Court, during the course of investigation, PW-5 and PW-7 gave the specimen signatures willingly. In Sukhvinder Singh's case, specimen writing of accused was taken as per the direction of the tehsildar; whereas in the present case PW-5 and PW-7 were produced before the Executive Magistrate by the police with a request that their signatures be taken by the Executive Magistrate - Sukhvinder Singh's case is clearly distinguishable on facts from the case at hand. High Court further relied on another decision rendered in Vijay alias Gyan Chand Jain's case wherein in the facts and circumstances of the said case, it was held that procurement of specimen handwriting of accused by Naib Tehsildar was not in violation of Section 73 of Evidence Act.
In the present case, the occurrence was of the year 1983-1986 and, therefore, the authority of the Executive Magistrate to take specimen signatures of PW-5 and PW-7 during the course of investigation cannot be disputed. In any event, even dehors opinion evidence of handwriting expert, there is clear oral evidence of PW-5 and PW-7 denying their signatures in the loan application and other documents. Affirming the evidence of PWs 5 and 7 and analysis of evidence, the High Court has rightly reversed the judgment of acquittal and found the Appellant guilty of the offences Under Sections 468 and 471 Indian Penal Code.
Appeal dismissed.
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2016 (7) TMI 1666 - PUNJAB AND HARYANA HIGH COURT
Money Laundering - summon to petitioner No.2 for recording his statement even after a complaint has been filed against him - HELD THAT:- On appearance of the petitioner No.2 at the post cognizance stage, the trial Court would be bound to accept the bail bond/surety bond to its satisfaction under Section 88 of the Code of Criminal Procedure, without taking the petitioner in custody and to pass appropriate orders on the same day. Petitioner No. 2 shall accordingly appear before the trial Court on 28.7.2016 to avail his right on furnishing bail bond/surety bond for further appearance.
Let petitioner No.2 appear on 29.7.2016 in response to the summons issued by the Directorate of Enforcement but it is made clear that the question of any arrest under Section 19 of the Act ibid does not arise at the post cognizance stage.
Thus, declining the prayer for stay of operation of the summons (Annexure P-13) issued, the application is disposed of accordingly.
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2016 (7) TMI 1665 - ITAT PUNE
Deduction u/s. 80P(2)(a)(i) - interest income on bank deposits with various banks other than cooperative banks/societies - CIT-A allowed the deduction - HELD THAT:- Tribunal in [2015 (8) TMI 1085 - ITAT PUNE] has elaborately discussed the issue and held that interest income earned by the assessee on short term deposits kept with banks has to be allowed as deduction u/s.80P(2)(a)(i) of the Act.
Since the facts of the impugned assessment year are identical to the facts in A.Y. 2010-11, therefore, following the decision of the Coordinate Bench of the Tribunal in assessee’s own case and in absence of any contrary material brought to my notice uphold the order of the CIT(A) on this issue and the grounds raised by the Revenue are dismissed.
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2016 (7) TMI 1664 - MADRAS HIGH COURT
Levy of Entry Tax - purchase value of the motor vehicle after adding 2% towards insurance and other incidental charges - Jurisdiction - whether entry tax cannot be charged at the time of sale of the vehicle and it is not within the power of the assessing authority to assess the importer long after import has been made? - time limitation - HELD THAT:- The legal issue involved in this Writ Petition is squarely covered by the decision of the Hon'ble Division Bench in SRI BALAKRISHNA TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [2009 (2) TMI 787 - MADRAS HIGH COURT], wherein the identical issue was considered, though in respect of a JCB Vehicle, however, that does not in any manner, affect the application of judgment in the present proceedings. It was held in the case that The Entry Tax Act provides time-limit for making a best judgment assessments, as well as reassessment. When there is no specific provision in the Entry Tax Act for assessing a person who fails to furnish returns, the respondent was not entitled to make an assessment after a considerable point of time. It is trite that in case the words used in a taxation statute are plain and unambiguous they have to be interpreted in such a manner so as to give full effect to the wording of the statute.
As pointed out by the Hon'ble Division Bench, unless there is a express provision, authorising the assessing officer to collect tax from the importer, who failed to file returns, as provided under Section 7 of the Entry Tax Act, the respondent would have no jurisdiction to make assessment for the purpose of recovery of entry tax.
The Impugned order is held to be without jurisdiction - Petition allowed.
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2016 (7) TMI 1663 - CESTAT NEW DELHI
Valuation of services - works contract service - inclusion of value of the free supplied items by the appellant from service recipients in the value of the services - whether the works contract were liable to tax before 01/6/2007 - HELD THAT:- The issues stand decided by the Larger Bench decision of the Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] as also by the Hon’ble Supreme Court decision in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. At this stage, learned DR submits that the matters may be remanded to the original Adjudicating Authority for examining the applicability of the said decision to the fact of the case in as much as number of contracts are involved and the other issues regarding the non-payment of tax in respect of various charity/educational/non-commercial contracts are also involved.
The impugned orders is set aside and both the appeals remanded to the original Adjudicating Authority for denovo adjudication in the light of the above declarations of law - appeal allowed by way of remand.
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2016 (7) TMI 1662 - ITAT MUMBAI
Character of receipt - Addition of subsidy by way of refund/exemption of excise duty/VAT - HELD THAT:- In some and substance receipt in hands of the assessee has to be determined with respect to purpose for which the subsidy is given. One has to apply the purpose test. However, lower authorities misdirected in holding that since subsidy was to be received only after commencement of commercial production, the same was revenue in nature.
Hon‟ble Supreme Court in the case of Ponni Sugar & Chemicals Ltd. [2008 (9) TMI 14 - SUPREME COURT] had clearly held that character of receipt in the hands of the assessee has to be determined with respect to the purpose for which the subsidy is given. Merely because subsidy was to be paid after commencement of production will not alter the nature of receipt, insofar as the point of time at which the subsidy paid or the source from which the subsidy is paid is immaterial, even the form in which subsidy is paid is also immaterial as observed by the Hon‟ble Supreme Court in the case of Ponni Sugars & Chemicals Ltd.(supra).
Applying the proposition of law laid down we have no hesitation to hold that various incentives received by assessee was in nature of capital receipt and the same was meant for establishing new unit. Accordingly, we set aside orders of lower authorities and direct the AO to treat various incentives received by assessee as capital receipts not liable to tax.Appeals of the assessee are allowed.
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2016 (7) TMI 1661 - ITAT MUMBAI
Disallowance u/s 40(a)(ia) - scope of section 40(a)(ia) as amended by the Finance act, 2012 - retrospectively of law as amended - whether the proviso is applicable from 1.4.2005 or from 01/04/2013 - HELD THAT: As relying onf Ansal Landmark Township Private Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] we hold that the proviso to the section is applicable from 01.04.2005,that the deductee had paid the taxes on the income that was subject of TDS provisions, that no action could be taken against the assessee making the payment to HL. The basic aim of chapter XVII is to ensure that no portion of income remains untaxed.
To ensure it, TDS provisions were introduced-the person making payment was made responsible to deduct tax and pay it with the government account. But, the proviso to section 40(a)(ia)made it clear that if the deductee pays the taxes on the entire income liable for taxation then no action would be taken against the deductor. The proviso is quite logical. It ensures that whole of the taxable income is taxed. Once the specific purpose is served there is no justification to indulge in unnecessary litigation. It is not the case of the AO or the FAA that the deductee had not paid the taxes on the taxable income or that it was not paid within the prescribed time limit. Therefore, reversing the order of the FAA we decide the effective ground of appeal in favour of the assessee.
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2016 (7) TMI 1660 - SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Insider trading - Insider trading - trade in script on the basis of unpublished price sensitive information (“UPSI”) - Abhijit Rajan sold approximately 144 Lakh shares held by him in GIPL (representing 70.56% of his shareholding in that company - Shri Abhijit Rajan was restrained from buying, selling or dealing in securities and accessing the securities markets, either directly or indirectly, in any manner whatsoever, till further directions vide the Interim Order - HELD THAT:- In the instant proceedings, CICPL and its Directors, have been able to substantiate their contention with adequate evidence that the sale of GIPL shares were executed to clear the margin shortfall. As stated earlier, the letter (addressed to CICPL by IIFL Finance), clearly stated that the net margin shortfall was approximately ₹2.55 Crores and accordingly, CICPL was required to arrange for the aforesaid funds by August 7, 2013. Hence the action of selling the shares appear to be pursuant to the demand made by IIFL Finance.
The property transactions entered into between CICPL and Shri Abhijit Rajan were registered within the permissible statutory limit permitted by law. While it is possible that discussions in respect of the property transactions entered into between CICPL and Shri Abhijit Rajan may have been happening a few months prior to the impugned trades, no material evidence has been placed before me in the instant proceedings in support of such negotiations actually taking place prior to the execution of said trades. In the aforementioned context, the allegations against CICPL and its Directors as contained in the SCN, are not supported by any material evidence. On the other hand, CICPL and its Directors have substantiated their contention regarding the need for urgent sale of GIPL shares with the support of documentary evidence.
No alternative but to find that the charges against CICPL and its Directors i.e. Shri Kiran Indru Hingorani and Shri Indru B. Hingorani, as alleged in the SCN, have not been made out on the basis of the material available on record. For the aforementioned reasons, we are constrained to give the benefit of doubt to CICPL and its Directors i.e. Shri Kiran Indru Hingorani and Shri Indru B. Hingorani.
Quantification of unlawful gains or avoidance of loss by Shri Abhijit Rajan - Shri Abhijit Rajan has already undergone a restraint from July 17, 2014 till date i.e. a period of almost 2 years. It is noted that SEBI has already initiated Adjudication Proceedings inter alia against Shri Abhijit Rajan in respect of the same violations alleged in the instant proceedings. This being the factual position, I am of the view that no further restraint is required to be imposed on Shri Abhijit Rajan on account of the reasons detailed in the preceding paragraphs. However, it is made clear that the Adjudicating Officer shall independently verify the facts and arrive at findings including quantum of penalty, if any, without being influenced by the observations recorded in this Order.
ORDER
i. The SCN dated March 29, 2016, issued against Shri Abhijit Rajan, is disposed of without any further directions. On and from the date of operation of this Order, the directions issued vide the Interim Order dated July 17, 2014 read with the Confirmatory Order dated March 23, 2015, will not continue further against Shri Abhijit Rajan.
ii. In view of the findings against Shri Abhijit Rajan in the instant proceedings in respect of the violations alleged in the SCN, he becomes liable for disgorging the amount of unlawful gains. Accordingly, Allahabad Bank, wherein the amount of ₹1.09 Crores was deposited by Shri Abhijit Rajan in an account ‘SEBI Escrow A/c Abhijit Rajan (A/c No. 50330382173)’, shall transfer the said amount within a period of 10 days to SEBI.
iii. The SCN dated March 29, 2016, issued against CICPL and its Directors i.e. Shri Kiran Indru Hingorani and Shri Indru B. Hingorani, is disposed of without any directions.
iv. Allahabad Bank shall release the amount of ₹35.24 Lakhs, which was deposited by CICPL and its Directors i.e. Shri Kiran Indru Hingorani and Shri Indru B. Hingorani, in an account ‘SEBI Escrow A/c Consolidated Infrastructure Co. Pvt. Ltd. (A/c No. 50330378961)’, in view of the findings against the said entities in the instant proceedings.
This Order shall come into force with immediate effect.
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2016 (7) TMI 1659 - CALCUTTA HIGH COURT
Service of notice - notice was returned with the endorsement ‘Unclaimed’ - winding up petition - HELD THAT:- Since ‘unclaimed’ is a good service inasmuch as having regard to the fact that there is no contemporaneous denial on the claim of the petitioner and the company has evaded the service of the notice, it can be presumed that the company has no defence to the claim of the petitioning creditor.
Under such circumstances, the winding up petition is admitted for a sum of Rs.10.26 lakhs together with interest at the rate of 6% per annum on and from June, 2016. In the event, the company pays off the aforesaid sum in four equal monthly instalment commencing from 8th August, 2016 and payable by 8th day of each and every succeeding month, the company petition shall be remained permanently stayed.
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