Determination of suppressed production - estimation of production and the consequent profits thereon on the basis of consumption of electricity vis-à-vis production of TMT bars - addition was worked out in the hands of the assessee on the basis of US standards - CIT(A) in applying gross profit rate of 4% and consequently allowing manufacturing and administrative expenses on the unaccounted production - HELD THAT:- The issue arising in the present appeal is identical to the issue before the Tribunal in Shree Om Rolling Mills Pvt. Ltd. [2015 (10) TMI 2316 - ITAT PUNE] and following the same reasoning, we direct the Assessing Officer to delete the addition made on account of excess production following the consumption of electricity as per US standards as not merited. However, addition of additional income in the hands of assessee on account of admission made by the assessee of clandestine removal of goods without payment of Excise duty is to be made in the hands of the assessee as per our directions in the above said appeals. Appeals of the assessee are allowed.
Remand in police custody - arrest after filing charge sheet - whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet? - Allegation of killing of nine persons and injuring large number of villagers of Village Netai of District Paschim Medinipore in West Bengal.
HELD THAT:- In STATE THROUGH C.B.I. VERSUS DAWOOD IBRAHIM KASKAR AND ORS. [1997 (5) TMI 453 - SUPREME COURT] a three judge bench of this Court has laid down the law on the issue relating to grant of police custody of a person arrested during further investigation, and it was held that So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.
The case of DINESH DALMIA VERSUS C.B.I. [2007 (9) TMI 686 - SUPREME COURT] which is relied upon by the High Court, relates to granting of bail Under Section 167(2) Code of Criminal Procedure. In said case, the accused/absconder (Dinesh Dalmia) after his arrest was produced before the Magistrate, and on the request of CBI police custody was granted on 14.2.2006 till 24.2.2006, whereafter on another application further police custody was granted till 8.3.2006. Said accused was remanded to judicial custody, and the accused sought statutory bail Under Sub-section (2) of Section 167 Code of Criminal Procedure as no charge sheet was filed against him by CBI within sixty days of his arrest - the High Court is not justified on the basis of Dinesh Dalmia in upholding refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest Under Section 309 Code of Criminal Procedure.
The refusal of police remand in the present case is against the settled principle of law laid down by this Court. Therefore, the impugned orders passed by the High Court, affirming the orders of the Additional Chief Judicial Magistrate, Jhargram, are liable to be set aside. Accordingly, the impugned orders passed by the High Court and the orders passed by the Magistrate, declining the police remand, are set aside.
Condonation of delay in filing his income-tax return late by 30 months - rejection of refund claim - Order passed u/s 119 - petitioner submitted that the delay in filing the income-tax return beyond the specified period, was on account of “genuine hardship” and during the relevant period, he was a distributor of ‘Cable Master’ for the entire State of Haryana and thus, due to his field duty his family life remained disturbed. More so, the TDS certificates were also misplaced - HELD THAT:- Genuine hardship explained by assessee is completely devoid of any merit, because, the petitioner has not been able to refute the stand of the respondent that he never remained distributor of ‘Cable Master’ after 31.03.2009, as per his own certificate dated 16.04.2008 (Annexure P-2) issued by M/s Innetwork Entertainment Limited and thus, it is evident that the petitioner had no field duty after 31.03.2009. Resultantly, the question of disturbance of his family life does not arise at all. Accordingly he cannot be permitted to allege that he could not file his income-tax return in the prescribed time on account of above reason.
So far as the second grouse raised by the petitioner regarding misplacement of his TDS certificates is concerned, the same has also no legs to stand, because he has not produced copy of any FIR or DDR in support of his above assertion. In the absence of any such corroborative evidence, his above plea is not liable to be accepted.
Thus as whether there existed genuine hardship or sufficient cause for condonation of delay or not, it depends upon evaluation of totality of facts and circumstances in a given case. As noticed above, the petitioner has miserably failed to convince that he had any “genuine hardship” in filing his income-tax return late by 30 months, therefore, no benefit whatsoever of the aforesaid authorities can be given to him.
Inaction of the Officer-in-Charge, Jorasanko Police Station (hereafter the said O.C.) in taking steps for registration of an FIR - complaints in relation to a perceived hate speech delivered by a Member of Parliament (hereafter the said member) owing allegiance to the political party in power in this State, while addressing a public rally - HELD THAT:- To err is human, but it has to be remembered that this is not a writ petition at the instance of a stranger or a busybody attempting to gain cheap popularity by espousing a pretended public cause; it is inter alia at the instance of a political party which, in the parliamentary elections last conducted in the country, was successful in emerging as the party having the maximum number of representatives in the Lok Sabha and is also part of the ruling dispensation at the Centre. Invocation of extraordinary writ jurisdiction of a high Court by a political party of the stature of the first petitioner, not being unmindful of the influence that it wields on the common people, pertaining to a sensitive issue in such a disorganized manner and with such a casual approach not only merits to be deprecated but the time is now ripe, when the Courts in India are faced with a deluge of litigation from aggrieved persons seeking justice and the Courts are hard pressed in listening to the grievance of each one of them, to send a strong signal that the Courts are not the place for settling political scores and that wastage of judicial time, though nominal in measure, would not be tolerated.
This bench has no hesitation to hold that not only should this writ petition be not entertained in view of the developments post the decision in Biplab Kumar Chowdhury but the petitioners ought to suffer exemplary costs so as to remind the first petitioner that howsoever strong and mighty it is in the political scene, it must respect the laws of the country while seeking to invoke the extra-ordinary jurisdiction of the Court and not suppress facts or produce a tampered document to suit its end.
Exemption u/s. 80P(2)(a)(i) - AO noticed that the nature of the activity of the assessee, though registered as a credit co-operative society, is that of a banking institution notwithstanding the fact that receipt of and lending money is limited to its members - assessee submitted that the AO erred in treating the assessee as a commercial banking institution and in denying the deduction available to it u/s 80P(2)(a)(i) of the Act in respect of income arising from the transactions only with its members - Whether assessee is a co-operative society and not a cooperative bank and therefore the provisions of section 80P(4) of the Act are not applicable? - CIT(A) allowed exemption - HELD THAT:- As the issue under consideration has already been considered and decided by this Tribunal in the case of M/s. Bangalore Commercial Transport Credit Co-operative Society Ltd. [2011 (4) TMI 1222 - ITAT BANGALORE] wherein this Tribunal held that section 80P(4) is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application in the assessee’s case and therefore, it is entitled to deduction u/s 80P(2)(a)(i)
We are of the view that the assessee society is entitled to deduction u/s. 80P(2)(a)(i) of the Act. We uphold the order of the ld CIT(Appeals). Decided in favour of assessee.
Acquittal of petitioner in the prosecution launched by the respondents - involvement in Gambling or not - HELD THAT:- The petitioner confirms that the trial court passed an order on 11th October, 2014 acquitting the petitioner in the prosecution launched by the respondents. The prosecution case was that the members of the petitioner were indulging in Mangatha “ulle, velliye” by betting money for profit. There is no allegation whatsoever that the members of the petitioner or other persons were playing rummy (13 cards) in the premises of the petitioner.
Under the circumstances, petitioner says that since the prosecution was not based on the petitioner or any of its members playing rummy (13 cards), he would like to withdraw the writ petition that was filed before the Madras High Court being WP No.21620 of 2011. We permit him to withdraw the writ petition.
Since the writ petition is dismissed as withdrawn, the observations made by the High Court in the writ petition or in the writ appeal filed by the State do not survive - SLP dismissed.
Gambling or not - online rummy - HELD THAT:- The judgment in THE DIRECTOR GENERAL OF POLICE STATE OF TAMIL NADU CHENNAI AND ORS. VERSUS MAHALAKSHMI CULTURAL ASSOCIATION [2012 (3) TMI 710 - MADRAS HIGH COURT] passed by the High Court of Judicature at Madras, has not at all dealt with online rummy. In fact, learned counsel for the respondents states that they have not yet taken any decision whether online rummy falls foul of the law or not.
Under these circumstances, since there is no discussion at all in regard to online rummy in the impugned judgment and order, it is not necessary to entertain these petitions, the issue being res integra - it is made clear that the impugned judgment and order of the High Court of Judicature at Madras has not dealt with online rummy and, therefore, any observations made in the impugned judgment and order may not necessarily relate to online rummy.
Applicability of Tonnage Tax Provisions to Sundry credit balance written back u/s. 41(1) -CIT(A) has deleted the impugned addition/disallowances following the earlier years order of the Tribunal - HELD THAT:- As decided in assessee own case [2011 (7) TMI 588 - ITAT, MUMBAI] legislature in its wisdom provided the manner of computation of income under the tonnage tax scheme. In section 115VA, it is clearly provided that sections 28 to 43C would not over ride the computation of profits and gains under section 115VA. As section 41(1) falls within sections 28 to 43C, no separate addition under that section can be made. As section 41(1) seeks to bring to tax certain specified items of receipts under the head “profits and gains of business” the scheme should not be invoked while computing profits and gains of business under Chapter-XII-G. Hence, we are of the opinion that the argument of the assessee should succeed.
As no distinguishing decision has been brought to our notice by the Revenue, respectfully following the orders of the Co-ordinate Bench, we uphold the findings of the Ld. CIT(A). Ground No. 1 to 4 of the Revenue is accordingly dismissed.
Sundry receipts from core shipping and reimbursement of managed vessels - As decided in own case [2015 (3) TMI 751 - ITAT MUMBAI] submitted that neither the A.O. nor the ld. CIT(A) has examined the relevant details placed at 157 of the paper book and urged that the matter may be sent back to the A.O. for deciding the same afresh after verifying the said detail. As the ld. D.R. has no objection in this regard, the issue relating to inclusion or exclusion of item No. 3 & 6 is restored to the file of the A.O. for deciding the same afresh.
Receipts relateable to core activity of operation of qualified ship and part of incidental activity - applicability of provisions of Chapter XII-G relating to tonnage income are applicable - HELD THAT:- We find that commission on disbursements (receipts) and Sundries have not been properly explained by supporting demonstrative evidences. We, therefore, restore these issues to the file of the AO. The assessee is directed to demonstrate its claim of receipts being directly related to the core activity/incidental activity by bringing cogent material evidences on record in respect of these 2 receipts and the AO is directed to examine the same and decide afresh whether these receipts can be clubbed under core activity/incidental activity of the assessee.
In so far as rent on furniture and Application money-right to info Act are concerned, these receipts can be treated as taxable as business income under normal provisions of the Income –tax. The assessee gets part relief in respect of impugned receipts.
Adjustment of the calculation of turnover - Since we have restored the issues relating to 2 receipts to the file of the AO to be decided afresh, the second grievance of the assessee also goes back to the file of the AO which can be decided only after deciding the taxability of receipts or otherwise qua ground No. 1 of this appeal. The AO is directed to decide this issue after deciding the taxability of receipts. Ground No. 2 is allowed for statistical purpose.
Disallowance of administrative expenses and in alternative allowance of proportionate expenditure incurred by the assessee - HELD THAT:- As decided in own case [2011 (7) TMI 588 - ITAT, MUMBAI]Assessing Officer has rightly held that the assessee would not have incurred the expenditure claimed for earning income.
We restore this issue to the file of the AO. The AO is directed to decide this issue as per the directions of the Tribunal given in earlier years and as per the decision taken by him pursuant to the directions given by the Tribunal in earlier years. Ground No. 3 is allowed for statistical purpose.
Rectification of mistake - Depreciation on goodwill - as per assessee Tribunal adjudicated on various issues facts relating to depreciation on goodwill, even though was on record and placed on record in the course of hearing, the said facts were not considered - HELD THAT:- As can be seen from the above, the ITAT has consciously not considered the ground as the facts were not on record. Just because an amount was shown in the balance sheet and claimed depreciation on the basis of entries in Books of Accounts, it cannot be considered that all facts are on record.
Doubt has been expressed ‘how the goodwill arose, what is the amount, why assessee has not claimed depreciation and other issues require examination in AY. 2007-08’. The claim of depreciation has to be examined in the year in which such asset becomes part of Block of assets. Then in later years only consequential depreciation on WDV has to be allowed.
Admittedly the Goodwill came into assessee books in AY 2007-08. Since, we were adjudicating the issues in AY. 2009-10, Bench also gave a clear finding that consequential depreciation can be allowed in AY. 2009-10. Assessee also admits that issue and the claim for AY. 2007-08 is still pending before the CIT(A). In these circumstances, we are of the opinion that there is no mistake apparent from record and accordingly, the contentions raised by assessee are rejected.
Levy of interest U/s. 234C - As contended that interest can be levied only on the returned income and not on the assessed income as was done by the AO - HELD THAT:- Even though Ground with reference to levy of interest U/s. 234C were listed in para 3 of the order in page 3, adjudication on the issue was not made subsequently. Therefore, this contention of assessee is correct. With reference to the interest U/s. 234C, AO can examine levy as per provisions of Act in the consequential order as many issues were restored to AO in the order. Assessee should be given due opportunity and the calculation of interest should also be incorporated so as to examine the correctness of the calculations.
Income from factory premises - income from business OR income from other sources - assessee has submitted that the assessee could not restart its business till date after its discontinuance in the year as back as 1988 and chairman of the assessee company is 88 years of age - HELD THAT:- The assessee is a corporate assessee and the litigation and the amount involved in the litigation could not be said to be of that magnitude that the assessee could not restart its business during the past 27 years. The facts of the case lead to the conclusion that the assessee is no more interested in restarting its business and has let out its factory premises along with its machinery, furniture and fixtures for a fixed amount of rent and, therefore, the action of learned CIT(A) in directing to treat the income under the head ‘income from house property’ was justified and no interference in the same is called for. In this view of the matter, the order of learned CIT(A) is confirmed and the ground of appeal of the assessee is dismissed.
Penalty u/s 271(1)(c) - assessment order was made u/s 153C/143(3) considering the revised return - assessee filed its revised return of income without claiming exemption under section 12AA of the Act and furnishing the computation of income as income from business and profession - HELD THAT:- There is no dispute that the assessments were made under section 153(c) of the Act. The petitioner after filing the returns had filed the revised returns and had participated in the proceedings. The assessment proceedings under section 153C were not challenged. Ultimately orders of assessment were passed. Accepting the assessments taxes were paid. Thereafter, penalty proceedings have been initiated under section 271(1)(c) of the Act for concealment of particulars of income. We find that the Tribunal while dismissing the appeal filed by the assessee has dealt in its order, in detail every aspect, including the factual aspect of the matter. Thus, we find that no substantial question of law arises. Hence, the applications for admission of appeal are dismissed. Consequently appeals are not admitted.
Penalty u/s 271(1)(c) - Appeal is admitted on the following substantial questions of law:
Whether on a correct interpretation of the provisions of section 271(1)(c) of the Income Tax Act, 1961 read with the Explanation 1 appearing thereunder, the Tribunal misdirected itself in law and adopted a wholly erroneous approach in upholding the levy of penalty in the instant case, on the alleged ground that the Appellant Foundation had concealed its income and/or furnished inaccurate particulars of its income in respect of the assessment year 2011-12 ?
Whether the Order passed by the Tribunal upholding the levy of penalty in the instant case of the Appellant Foundation in respect of the assessment year 2011-12 is wholly erroneous in law, against the facts and evidences on record, wholly baseless, unreasonable and/or otherwise perverse?
The application disposed of. Let informal Paper Books be prepared and filed in the department and also be served on the respondent/revenue within 8 weeks from date along with the gist of this order.
Direction to Appellant-tenant to vacate and handover physical possession of the suit premises to the Respondent-landlord - Respondent-landlord alleges that Under Section 106 of the Transfer of Property Act terminating the lease, he sent a legal notice through speed post on 26.12.2011 - the Appellant-tenant denied having received any such notice - HELD THAT:- The words in Order XII Rule 6 Code of Civil Procedure "may" and "make such order..."show that the power Under Order XII Rule 6 Code of Civil Procedure is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the Defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion Under Order XII Rule 6 Code of Civil Procedure. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.
In the suit for eviction filed by the Respondent-landlord, Appellant-tenant has admitted the relationship of tenancy and the period of lease agreement; but resisted Respondent-Plaintiffs claim by setting up a defence plea of agreement to sale and that he paid an advance of Rs. 82.50 lakhs, which of course is stoutly denied by the Respondent-landlord. The Appellant-Defendant also filed the Suit for Specific Performance, which of course is contested by the Respondent-landlord. When such issues arising between the parties ought to be decided, mere admission of relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit Under Order XII Rule 6 Code of Civil Procedure.
An opportunity has to be afforded to the Appellant to put forth his defence and contest the suit and therefore, the matter is to be remitted to the trial court for a fresh hearing, however, subject to the condition that the Appellant should pay the arrears of rent at the rate of Rs. 44,000/- per month within a period of eight weeks - Having regard to the said order passed by the trial court, payment of sum of Rs. 1,00,000/- per month would also be subject to the final outcome of the eviction suit as well as the suit for specific performance.
The matter is remitted back to the Rent Controller for consideration of the matter afresh and the appeals are allowed.
Illegal Construction or not - sanction was granted to the petitioner by the Municipal Corporation or not - HELD THAT:- It is clear that the petitioner has not been summoned by the Lokayukt Organization in regard to any criminal case. The Organization has registered an Inquiry Case No.134/2013 and conducting the inquiry against the officers of the Municipal Corporation and it is necessary to find out that whether permission for construction of a house was granted illegally or not.
The Organization has a right to conduct the inquiry against the officers or employees of the Municipal Corporation.
The Corporation has issued notice to the petitioner in regard to illegal construction. It is an independent issue. If any illegal construction has been made by the petitioner the Corporation has its right to take action in accordance with law and if the petitioner has made the construction in accordance with proper sanction, she can very well place the fact before the Corporation. Corporation is at liberty to proceed in accordance with law.
The Supreme Court of India in 2015 condoned delay and admitted the case to be heard along with Civil Appeal No. 7497 of 2012. Justices A.K. Sikri and Rohinton Fali Nariman presided over the case.
Levy of Entry tax - procurement of 66393.87 mts of boulder from the petitioners own leased quarry and the purchase of boulder by the petitioner of 250977.78 mts from one M/s. Start Trading Pvt. Ltd. - whether boulder was not a schedule goods under the Orissa Entry Tax Act, 1999? - HELD THAT:- The second proceeding under Section 10 of the O.E.T. Act under Anenxure-3 to the writ application was merely based upon the audit conducted by the Auditor General which once again raised the issue as to whether boulder was a mineral or not. This turn- over and the period was covered by the earlier order dated 26.02.2011 passed under Section 10 of the O.E.T. Act under Anenxure-1 and consequently having attained finality and no challenge having been made to the same, remains final and binding on all parties.
The opposite party had no jurisdiction in this matter to initiate a fresh proceeding under Section 10 of the O.E.T Act, resulting in passing of the order dated 31.07.2012 under Annexure-3 - there are no hesitation in directing quashing of Anenxure-3 - application disposed off.
Addition u/s 68 - unexplained cash credit - CIT(A) has confirmed the AO's action of adding unsecured loans in case of four parties wherein letter issued stood returned with remarks “not known” - HELD THAT:- As in case CIT vs. Orrisa Corporation Pvt. Ltd. [1986 (3) TMI 3 - SUPREME COURT] holding that once an assessee submits all assessments details of its creditors, it is not supposed to do anything further and the primary onus of proving identity, genuineness and creditworthiness stand discharged. And also that it is Revenue’s job thereafter to rebut the same.
It is to be seen that the assessee’s supportive evidence in case of all the creditors eg. its books of accounts, creditors PAN details, confirmations, returns and bank statements etc. stands on equal footing. We observe in these facts that merely because some of them have not been served the postal letters in question does not form a valid ground in rejecting assessee’s plea of genuineness and creditworthiness of the impugned credit to the extent as affirmed in the lower appellate order.
Revenue fails to point out any distinction on merits in case of abovestated four creditors vis-à-vis the other eleven parties. We quote the decisions of Chanakya Developers [2013 (10) TMI 7 - GUJARAT HIGH COURT] and CIT vs. Ranchhod Jivabhai Nakhava, [2012 (5) TMI 186 - GUJARAT HIGH COURT] reiterating the abovestated view of the hon’ble apex court in these facts and hold the assessee to have successfully proved genuineness/creditworthiness of all the impugned unsecured loans hereinabove. The Revenue’s sole substantive ground in its appeal fails and assessee’s first ground is accepted.
Disallowance u/s 14A r.w.r. 8D - CIT-A considering the fact that after insertion of rule 8D w.e.f. A.Y. 2008-09 there is no notional disallowance - HELD THAT:- On consideration of the above facts and submissions of the parties, we find that issue raised in the departmental appeal is covered in favour of the assessee by order of the Tribunal in the case of the same assessee for assessment year 2010-11 [2014 (5) TMI 1082 - ITAT CHANDIGARH] in which on identical grounds, the Tribunal dismissed the departmental appeal following the order of the Tribunal in earlier years. Departmental appeal is dismissed.
Seeking eviction of the Respondents - default in the payment of rent - proper service of notice under Section 12(2) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - statutory presumption contained in Section 27 of the General Clauses Act - Respondents have denied receiving notice under Section 12(2) of the Rent Act - whether such bald denial is sufficient for the purposes of rebutting the statutory presumption arising out of the provisions contained in Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act?
HELD THAT:- The finding that there was no valid service of notice under Section 12(2) of the Rent Act is vitiated by perversity as well as material irregularity and illegality. This is a case where the onus of proof was incorrectly and in any case excessively cast upon the Applicant landlord. The presumption arising out of Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act was not allowed its full play. As noted earlier, the Respondents have admitted in the course of their evidence that the address to which the envelopes containing the notices were addressed, are correct addresses. The Respondents have also admitted that they normally receive their correspondence at such address. There is material on record which establishes that the notices were indeed sent by R.P.A.D. and U.C.P. There is no evidence led by the Respondents either by way of examination of postman or otherwise to establish that such notices were not served.
The Appeal Court, in such circumstances, was not right in holding that a bald statement that the notices were not served, suffice to rebut the statutory presumption. The Appeal Court, has already recorded the findings of fact that the Respondents were clearly in arrears in the payment of rent for a period of in excess of six months. Such findings have not been challenged by the Respondents. For all these reasons, the impugned Judgments and Decrees are liable to be set aside.
Validity of Summons issued for offence under Section 630 of the Companies Act 1956 - Validity of Board resolution is already in dispute - It was held by High Court that It is settled law that the complaint under Section 630 of the Company Law may be maintainable despite of pendency of the civil litigation, but the facts in the present case are distinct as it is doubtful whether the complaint in the existing circumstances when the board resolution itself is under dispute is maintainable whether the proceedings can continue, therefore, instead of dismissal of complaint, I am of the view that the summoning order are liable to be quashed.
HELD THAT:- The order of High Court is upheld - The special leave petition is dismissed.
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