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Showing 21 to 40 of 1749 Records
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2015 (9) TMI 1739 - MADRAS HIGH COURT
Rejection of plaint for want of territorial jurisdiction - infringement of trademarks - principal place of business and place of suit shoulb necessarily be same? - whether the Suit for infringement and passing off filed by the plaintiff is maintainable before this Court in the light of Section 134 of the Trade Marks Act? - HELD THAT:- With regard to the expression notwithstanding anything contained in the Code of Civil Procedure contained in Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act, it was pointed out that the same does not oust the applicability of the provisions of Section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc; as the case may be, that Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose. It was further pointed out that Section 20(a) and Section 20(b) usually provides the venue where the defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to institute a suit where the cause of action wholly or in part, arises. Further, the Explanation to Section 20 C.P.C., has been added to the effect that Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, 'corporation' can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place.
The provisions of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act have to be interpreted in a purposive manner and that a Suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain and he need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises, however, if the plaintiff is residing or carrying on business at a place where cause of action, wholly or in part, has arisen, he has to file a suit at that place.
The interpretation given by the learned Single Judge in the impugned judgment holding that under Section 134 of the Trade Marks Act, no suit for infringement of registered trade mark could be filed if the plaintiff does not carry on business within the jurisdiction of that Court, is held to be incorrect.
The impugned order is set aside and the suit is restored to the file of this Court and the defendant is directed to file their written statement within a period of three weeks from the date of receipt of a copy of this order - Appeal allowed.
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2015 (9) TMI 1738 - GUJARAT HIGH COURT
Dishonor of Cheque - grant of conditional leave to defend when the claim for interest was not backed by any written contract - whether the trial court was justified in directing the defendants to deposit only Rs.50,00,000/- when the entire principal amount of Rs.96,03,766/- had been admitted by them? - HELD THAT:- The principal amount of Rs.96,03,766/- claimed in the summary suit has not been disputed by the defendants. The sole ground raised in the petition filed by the defendants is that the claim of interest, not being based upon a written contract, could not have been made in a summary suit.
The cause of action for filing the suit arose on the date when the defendants issued various cheques, on the date when the cheques were returned, and on 30th October, 1996, when the defendants failed to make the remaining payment of Rs.96,03,766/- on 27th November, 1996 when the notice was served to the defendants, on 10th December, 1996, when the defendants replied the notice and that the same cause of action is continuous. The notice dated 27th November, 1996 referred to in the above paragraph is the notice issued under section 138 of the Negotiable Instruments Act upon dishonour of the cheques in question. Evidently, therefore, as rightly contended by the learned counsel for the plaintiff, the suit has been instituted on a negotiable instrument. Sub-rule (2) of rule 1 of Order XXXVII of the Code provides that rule 1 applies to all the classes of suits mentioned therein, which includes (a) suits upon bills of exchange, hundies and promissory notes - the statute itself provides for the grant of interest and hence, when a suit is instituted on a negotiable instrument, a claim for interest can be made in view of section 80 of the Act and does not need a written contract in that regard. Besides, in the opinion of this court, where the interest claimed by the plaintiff is on the amount in respect of which cheques have been issued by the defendants, such claim is governed by section 80 of the Negotiable Instruments Act and consequently, the claim of interest made by the plaintiff is a claim of interest under an enactment, therefore, such claim can also be said to be governed by the provisions of Order XXXVII rule 1(2)(b)(ii) of the Code. Accordingly, no relief which does not fall within the ambit of rule 2 of Order XXXVII of the Code can be said to have been claimed in the plaint. Therefore, having regard to the facts of the present case, it cannot be said that the claim of interest is beyond the scope of Order XXXVII of the Code.
A suit can be said to fall outside the ambit of Order XXXVII only if the relief claimed therein is based on an action the nature of which does not fall within the classes specified in Order XXXVII rule 1(2). The relief cannot be said to fall outside the ambit of Order XXXVII rule 2 merely because the quantum thereof is excessive, so long as the nature of the relief falls within the clause specified in Order XXXVII rule 1(2) of the Code - the trial court was justified in granting conditional leave to defend to the defendants when the claim for interest was not backed by any written contract in view of the fact that the claim of the plaintiff was based upon bills of exchange (cheques).
Liability to pay the principal amount of Rs.96,03,766/- - HELD THAT:- It may be germane to refer to the second proviso to sub-rule (5) of rule 3 of Order XXXVII of the Code which provides that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. Thus, from the language employed in the said proviso, it is mandatory for the defendant to deposit the admitted amount as a pre-condition for grant of leave to defend the suit. Under the circumstances, having regard to the fact that the principal amount is admitted as due from them by the defendants, the trial court was not justified in directing the defendants to deposit only Rs.50,00,000/- and ought to have directed them to deposit the entire amount admitted by them.
The summary suit for the claim of interest in the facts and circumstances of the present case is maintainable - Application dismissed.
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2015 (9) TMI 1737 - SUPREME COURT
Jurisdiction - competent authority to take disciplinary action either by cancellation or suspension of the licence of a S.K. Oil agent appointed in a district outside the Calcutta - date of effect of order of cancellation or suspension of licence in terms of Paragraph 9 of the West Bengal Kerosene Control Order - whether it will be effective on the date of passing of the said order or when the said order is communicated to the concerned party?
HELD THAT:- The Control Order was brought into force on 26.6.1968 in exercise of powers conferred by Sub-section 1 of Section 3 of the Essential Commodities Act, 1955 read with Clauses (d), (e), (h) and (j) of Sub-section 2 of that Section and Section 7(1) of the said Act and the Order No. 26(11)-Com.Genl/66, dated 18th June, 1966 feeling the necessity and expediency for proper maintenance of supplies and for securing the equitable distribution and availability at fair prices of kerosene in West Bengal - the power conferred on the Director and the District Magistrate are different, for the Director is a higher authority and the rule clothes him with more authority. Needless to say, the said paragraph has to be read in juxtaposition with other paragraphs. It is clear from paragraph 5 that the Director alone is authorised to grant a licence to an agent whereas a dealer's licence can be granted either by the Director or by the District Magistrate. Sub-para 3 of Paragraph 5 of the Control Order is also indicative of the fact that the agent operates at a larger scale than the dealer. An agent can sell, supply or transfer kerosene to a dealer, holder of a permit or delivery order and no other person.
If it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated.
It is concluded that the High Court has erroneously interpreted Paragraph 9 and 10 of the Control Order and that is why it has arrived at an erroneous conclusion - appeal allowed.
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2015 (9) TMI 1736 - ITAT MUMBAI
Exemption u/s 11 - club is not a charitable organization within the meaning of section 2(15) - CIT-A held that assessee is a Charitable Institution and its income has to be computed u/s 11 to 13 -Whether assessee performs a charitable purposes within the meaning of section 2(15) ? - HELD THAT:- Issue is covered by the decision of Hon’ble Jurisdictional High Court in the assessee’s own case [2012 (4) TMI 214 - BOMBAY HIGH COURT]. Further the co-ordinate bench of Tribunal has also followed the said decision in order to decide an identical issue in favour of the assessee in assessment years 2007-08, 2009-10 [2015 (3) TMI 1419 - ITAT MUMBAI] 2008-09 [2014 (11) TMI 379 - ITAT MUMBAI]. We also notice that it is not the case of the AO that the assessee is hit by the proviso to sec. 2(15) of the Act. Hence, we do not find any infirmity in the order of ld. CIT(A) with regard to the first issue.
Claim of the assessee for set off and carry forward of deficit of earlier years - CIT(A) has followed the decision rendered by the Hon’ble Jurisdictional High Court in the case of CIT Vs. Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT]. Hence, we do not find any reason to interfere with the order passed by the ld. CIT(A) on this issue also.
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2015 (9) TMI 1735 - MADRAS HIGH COURT
Validity of registered sale deed executed by the plaintiff in favour of defendants 1 and 2 - permanent injunction restraining the defendants from alienating or in any manner encumbering the plaint schedule property and for costs - seeking impleadment in the suit as a legal heir on the basis of the testamentary document being the alleged last Will of the deceased - HELD THAT:- The nature of civil proceedings, which are before the Court, i.e., a claim by the deceased to set at naught the sale deeds already executed. The question is of an impediment in the way of the appellant to even claim any right in the absence of having initiated any proceedings for probate of the Will due to the law being specific here, as well as the other two Courts of Mumbai and Kolkatta, as compared to a different position in the remaining part of the country.
The purpose of impleading all the legal representatives arises, as even if there is a dispute of inheritance between the different persons claiming from the deceased, that should not prejudice the proceedings initiated by the deceased and when the inter se rights are determined among the persons claiming estate of the deceased, those could be determined separately or even some time in the same proceedings to come to a conclusion as to who should be the beneficiary of the decree, if any, passed in the suit - In the present case, the appellant would not be able to claim any part of the estate whatsoever even on the basis of the alleged registered Will because he has not taken any steps for obtaining probate. In fact, the question was conveniently evaded.
The appeal is completely meritless and also a proceeding in which ambivalent stands have been taken to somehow get the appeal admitted without answering the Court queries - appeal dismissed.
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2015 (9) TMI 1734 - KARNATAKA HIGH COURT
Deduction u/s 80P(2) (a) (i) - whether the assessee - Society is to be treated as a ‘primary co-operative bank’? - Whether the benefit of deduction u/s 80P (2) (a) (i) could be denied to the assessee on the footing that Though the appellant was said to be a Co-operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act? - whether Tribunal was correct in holding that the provision of sub-section (4) of Section 80P are applicable only to co- operative Banks and not to credit Co-operative Societies, which are engaged in business of banking, including providing credit facilities to their members? - HELD THAT:- We are in respectful agreement with the general view taken as to the interpretation of the relevant provisions of law, by the co-ordinate bench of this court, in the above and several other judgments adopting the same view. However, it is to be noticed that there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act. Any opinion expressed therefore is tentative and is not final. The view expressed by this court, however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India. See M/S. BANGALORE COMMERCIAL TRANSPORT CREDIT CO-OPERATIVE SOCIETY LIMITED [2014 (6) TMI 913 - KARNATAKA HIGH COURT]- Decided in favour of assessee.
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2015 (9) TMI 1733 - DELHI HIGH COURT
Condonation of delay of 65 days in re-filing the petition - It is alleged that the explanation for delay of nearly two months in re-filing is not satisfactory - Section 34 of the Arbitration & Conciliation Act, 1996 - HELD THAT:- There are no infirmity with the view taken by the learned Single Judge in not condoning the delay. It is noticed that the petition was originally filed without the requisite court fees. Even an application seeking enlargement of time for filing the requisite court fees was not filed. The only explanation given is that the matter was filed in a rush without the requisite court fees. It may be noticed that despite the fact that the matter was filed in a rush, the court fees was not filed for over a period of one month from the date of filing. The explanation tendered is that the amount was substantial and as such it took some time in the amount being credited into the account of the counsel and then being credited to the account of the Stock Holding Corporation for the purposes of obtaining the court fees. The appellant should have been diligent in obtaining and filing the requisite court fees. Merely because a substantial amount was required to be paid as court fees, cannot be a ground to circumvent the statutory provision of limitation.
In arbitration matters, the limitation has to be strictly construed and the parties cannot be permitted to frustrate the very purpose of the Act. Even after the court fee was paid, the appellant took over thirty days in removing the defects. Merely because a soft copy was required would not take the appellant over thirty days in preparation of a soft copy. The appellant re-filed the petition repeatedly without curing the defects - the appellant has not been diligent in pursuing the petition and has taken substantial time in removal of the defects. No satisfactory explanation has been forthcoming for the condonation of delay of 66 days in re-filing the petition.
Appeal dismissed.
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2015 (9) TMI 1732 - ITAT DELHI
Reopening of assessment u/s 147 - Unexplained share capital - HELD THAT:- Reopening of the assessment, it is to be noted that AO in the reasons has mentioned a sum from 9 parties. Wherein the amount in the case of Kuberco Sales Pvt. Ltd and M/s Shriniwas Leasing & Finance has been mentioned twice - the assessee has not received any share capital from M/s VR Traders and M/s Shriniwas Leasing & Finance. Therefore the correct amount from five parties. This factual aspect has been confirmed by the CIT(A) and the same was not denied by the DR.
This shows non-application of mind by AO at the time of reopening of the assessment and hence reopening is bad in law. Thus, the Navodaya Case will not be applicable in the present case as the assessee has given the substantial evidence during the course of original assessment along with confirmation to the AO. The same was ignored by the AO. Hence, on this issue the Ground No. 1 of the Revenue is dismissed.
CIT(A) upheld the contention of the assessee that assessee has not received any share capital from M/s VR Traders and M/s Shriniwas Leasing & Finance. It also held that the amount in the case of Kuberco Sales Pvt. Ltd. And M/s Shriniwas Leasing & Finance has been mentioned twice. Accordingly the CIT(A) held that the disputed amount of the share capital on the basis of which addition has been made by the AO comes - CIT(A) after examination of the evidences and the various judgments further held that assessee has discharged its onus and AO has not brought any material to discredit the evidences submitted by the assessee. Hence CIT(A) rightly deleted the addition made on merit. - Decided against revenue.
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2015 (9) TMI 1731 - ITAT AHMEDABAD
Disallowance claim of financial loss under the schedule “repair and maintenance expenses” - HELD THAT:- Revenue strongly reiterates its grounds and assails the above extracted findings by pleading that details of evidence had not been filed in the course of assessment. We notice that the CIT(A)’s findings under challenge duly take into account details of loss as in schedule 33 to notes on accounts with all necessary particulars of irregularities in question, division-wise break-up, work orders, bills involved, items selected for verification and actual work carried out. It has come on record that this assessee is already subjected to C & AG audit. Needless to say, the CIT(A) has already concluded that in case there is any amount recovered in future from the concerned contractor, it shall be treated as assessee’s income in the year of receipt. The Revenue fails to file any evidence to the contrary for rebutting the above stated factual findings. We do not see any reason to interfere in the lower appellate findings. This Revenue’s ground is rejected.
Disallowance of extra ordinary items being losses due to cyclone, flood and fire etc made for want of supportive evidence - sole ground for rejecting the claim in question to lack of evidence - HELD THAT:- The lower appellate order mentions very clearly that the assessee had duly filed a letter dated 15-12-2012 comprising of all necessary details; division-wise on expenses towards flood related damages. The Revenue does not produce on record copy of the above stated letter so as to dispel the above said specific findings. The CIT(A) further relies on an identical order dealing with the very claim. The same has also gone unrebutted in course of hearing before us. We decide this ground as well against the Revenue
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2015 (9) TMI 1730 - SUPREME COURT
Dishonor of Cheque - stay on proceeding by forming opinion that the cases under Section 420 I.P.C and Section 138 of the Negotiable Instruments Act - Section 300(1) of the Code of Criminal Procedure - HELD THAT:- The attractability of Section 300 Cr.P.C. was negatived. The facts in the present case are almost similar to the case stated in Sangeetaben Mahendrabhai Patel [2012 (4) TMI 728 - SUPREME COURT], it has been held that Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant.
The attractability of Section 300 Cr.P.C. was negatived. The facts in the present case are almost similar to the case stated in Sangeetaben Mahendrabhai Patel.
The learned Magistrate before whom both the cases are pending, are directed to proceed in accordance with law - appeal disposed off.
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2015 (9) TMI 1729 - ITAT AHMEDABAD
Addition u/s 68 - Unexplained cash credits - HELD THAT:- We agree with the contention of DR that in view of the peculiar facts of the assessee’s case the decision in the case of Orissa Corporation (P) Ltd (1986 (3) TMI 3 - SUPREME COURT] may not be applicable and recording of the statement of the creditor is essential so as to ascertain whose money was actually deposited in the bank account of the creditor, whether it was unaccounted cash of the assessee or it was the cash in hand of the creditor. Therefore, we set aside the orders of the authorities below and restore the matter back to the file of the AO - We direct the assessee to produce all the 11 creditors before the AO. AO will record their statements and will also consider the explanation/evidences as may be furnished by them and thereafter readjudicate the issue in accordance with law.
Addition of cash credit - Allowance/disallowance of interest would be consequential to the acceptance or otherwise of the cash credit. We, therefore, set aside the orders of the authorities below on this point also and restore the matter back to the file of the Assessing Officer to be re-adjudicated along with the issue of addition for cash credit.
Addition of 20% disallowance out of telephone expenditure - HELD THAT:- Assessee is a partnership firm. The personal use of telephone by the partners cannot be ruled out. However, we deem it proper to reduce the disallowance to ⅙ (one sixth) as against 20% made by the Assessing Officer.
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2015 (9) TMI 1728 - CALCUTTA HIGH COURT
Dishonor of Cheque - discharge of existing liability or not - acquittal of accused - there are no endorsement on the postal department on the A.D. cards - evidence of service of notice - HELD THAT:- It is true that the statement made under Section 313 Cr.P.C. is not evidence. It is only the stand of the accused or version by way of explanation when incriminating materials appearing against him are brought to his notice as decided by the Apex Court in Devender Kumar Singla [2004 (2) TMI 705 - SUPREME COURT]. In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C.
Whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant? - HELD THAT:- This court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals.
This court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed.
Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,81,000/- to be paid to the present appellant. Such compensation must be paid within one month from this day - the accused respondent must surrender before the learned trial court to serve out the sentence within 30 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court.
Appeal allowed.
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2015 (9) TMI 1727 - SC ORDER
Denial of exemption u/s 11 - whether activities of appellant would quality to be charitable activity as under sec 2(15)? - HC held the factual correctness of which is undisputed, we can only endorse the view taken by the statutory authorities that in view of the proviso to Section 2(15), the activities of the assessee do not qualify to be charitable purpose as defined therein - AO was justified in disallowing the exemption claimed and assessing to tax the income of the assessee and the appellate authorities were justified in confirming the same - HELD THAT:- Heard the learned counsel for the petitioner and perused the relevant material.
We do not find any legal and valid ground for interference. The special leave petitions are dismissed.
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2015 (9) TMI 1726 - DELHI HIGH COURT
Assessment in the name of company amalgamated - Amalgamation of two companies - Assessment to be made on which entity ? - HELD THAT:- In view of the order passed [2015 (7) TMI 1400 - DELHI HIGH COURT] these appeals are dismissed.
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2015 (9) TMI 1725 - ITAT KOLKATA
Unexplained jewellery - search and seizure operation - assessee was not being able to reconcile item-wise jewellery which were found at the time of search vis-à-vis the wealth tax and purchases made during the financial year by assessee - HELD THAT:- We are in agreement with the findings of Ld. CIT(A) that items of jewellery are often subjected to remaking on account of changing fashion and designs. In Indian society, the yellow metal and diamond has assumed lot of significance for ladies which is a status symbol and they buy it or convert the jewellery as per the prevailing fashion. There has no gainsaying that fashion keeps on changing and, accordingly, the jewellery is re-modeled from time to time according to the prevailing fashion. Under the facts and circumstances, comparison with the items of jewellery found at the time of search with wealth tax return, which were filed much earlier was putting an onerous task on assessee to prove something impossible, and assessee cannot be as bed to prove something which is beyond its control. We, accordingly, confirm the order of Ld. CIT(A) and this issue of Revenue’s appeals are dismissed.
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2015 (9) TMI 1724 - DELHI HIGH COURT
Valuation of service tax - real estate agent service - value of the land is not includible in the assessable value for the purpose of computing the service tax or not - HELD THAT:- The AA has in the order dated 30th September 2013 come to the conclusion, on an analysis of the three MOUs entered into between the Appellant and SI, that the Appellant was working as an agent for SICCL and further that it had rendered two kinds of taxable services: one as a real estate agent/real estate consultant under Section 65 (89) of the FA and the other relating to levelling of soil including filling of gorges/nallah, removing of shrubs, grass and rubbish etc. classifiable under the head 'site formation and clearance excavation and earth moving and demolition services', as defined under Section 65 (97a) of the FA.
The Court is of the view that the Appellant has made out a prima facie case on the aspect whether the entire amount received by it pursuant to the MoUs would be considered to be the 'gross value' for the purposes of computation of service tax liability. Indeed it appears that the AA agreed with the Appellant that the entire sum received by the Appellant for purchase of land could not form the basis for computation of the service tax - It further prima facie appears that the AA overlooked the fact that even as per the SCN no land in Kurukshetra was purchased although the Appellant received money for that purpose. The Appellant's explanation that it returned the said sum to SICCL in the form of shares in 13 of its group companies does not appear to have been considered.
The Court is satisfied that the Appellant has made out a prima facie case and that the balance of convenience at this stage in making a conditional order of pre-deposit is in favour of the Appellant.
Although the Court is not expressing any opinion on the contention of the Appellant that no taxable service has been rendered by it, and that in any event the entire profit earned by it cannot constitute the value of such services, the Court, for the purposes of determining the reasonable amount of pre-deposit to be made by the Appellant, takes note of the fact that the Appellant has after making a loss of ₹ 34,25,435 in regard to the purchase of land at Sriganganagar and a profit of ₹ 4,75,45,069 in respect of the purchase of land at Vadodara, earned a net profit of ₹ 4,41,19,634. If the service tax demand is computed at 10% of the said sum it would work out to ₹ 44,11,963.
The appeal and application are disposed of.
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2015 (9) TMI 1723 - ITAT CHENNAI
Revision u/s 263 - Claim of exemption u/s.80-IB(11A) for Conversion charges AND Income from mango Trade - HELD THAT:- The company is eligible for exemption u/s 801B(11a) of the IT Act for the profit on contract conversion and profit on mango purchased and Sold without physical delivery to contract conversion customers. The above activity is involved processing, preservation and packing of fruits.
On perusing the letter, we find that it is not acknowledged by the Revenue for having received the letter and at the same time there is no dated mentioned in the letter. However, since the Ld.CIT has passed a cryptic order without any reasoning, we are of the considered view that the matter requires to be remitted back to the file of the Ld.CIT in order to pass a reasoned order after giving opportunity to the assessee of being heard. He shall also look into the detailed letter filed by the assessee before us which is supposed to have been filed before the Ld. CIT (A) on the earlier occasion while deciding the issue. Appeal of assessee is allowed for statistical purposes.
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2015 (9) TMI 1722 - PUNJAB AND HARYANA HIGH COURT
Dishonor of Cheque - compromise has been arrived between the parties and compromise deed has been placed on record - HELD THAT:- In the present case, petitioners are facing criminal proceedings qua commission of offence punishable under Section 174-A IPC. It is the case of the petitioners that they had not received the summons qua the criminal complaint under Section 138 of the Act pending against them. The moment petitioners came to know about the same, they have paid the cheque amount in question to the complainant and they have been discharged in the complaint under Section 138 of the Act.
Since in the main case, petitioners have been ordered to be discharged in view of compromise effected between the parties, continuation of criminal proceedings against the petitioners under Section 174-A, IPC would be nothing but an abuse of process of law - Petition allowed.
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2015 (9) TMI 1721 - CALCUTTA HIGH COURT
Dishonor of cheque - insufficiency of funds - there was existing liability or not - rebuttal of presumption - preponderance of probability - HELD THAT:- The relationship between the parties was that of cousin brother and naturally the story of advancement of friendly loan to the tune of ₹ 19,000/- cannot be ruled out. This Court on scrutiny of the evidence of this D.W. 1 is not in favour of coming to this conclusion that presumption which the complainant was having under Section 139 was rightly rebutted. It is true that the presumption under Section 139 of the N.I. Act was not that heavy like that of on the prosecution in a criminal trial but it is preponderance of probabilities which is commonly used in civil cases.
The respondent did not discharge the initial liability on him in such a case by stopping the payment of the cheque or intimating the matter to the police and naturally these two lapses will cost him much.
In view of the discussion so long made and keeping in mind the legal position involved, evidence both oral and documentary, this Court is satisfied that the learned trial Court erred in coming to the conclusion that there was no existing liability on the part of the present respondent. This Court reiterates that the cheque was issued in discharge of existing liability which remained unpaid which is definitely covered under Section 138 of the N.I. Act. This cheque was issued on 26.03.2008. i.e., before more than seven years from today and naturally the complainant has suffered both mentally and financially due to the act on the part of the present accused respondent. This act on the part of the accused must be well compensated. Thus, this Court is satisfied that the complainant appellant duly proved the charge against the accused under Section 138 of the N.I Act.
Appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1720 - ITAT CHANDIGARH
Revision u/s 263 by CIT - period of limitation - disallowance of interest u/s 36(1)(iii) - application of gross profit rate of 24.57% on the turnover of the assessee after rejecting the books of account of the assessee under section 145(3) - HELD THAT:- It is not in dispute that the original assessment order in this case was passed on 26/12/2008 and the same dealt with application of gross profit rate of 24.57% on the turnover of the assessee after rejecting the books of account of the assessee under section 145(3). It is also not in dispute that reassessment proceedings were initiated for making disallowance of interest under section 36(1)(iii) - also not in dispute that the proceeding under section 263 were initiated for applying the GP rate of 24.57%, on a turnover shown in the audited balance sheet filed to the bank as against the GP rate applied by the AO on a turnover shown in the audited balance sheet filed alongwith return of income.
It is evident from the above that the error related to application of G.P. rate and had crept in the order passed u/s 143(3) on 26/12/2008.The order passed u/s 147 had nothing to do with this issue. Therefore the order u/s 143(3) would subsist and would not merge with the order u/s 147.
The limitation for the passing of order under section 263 was to be taken into consideration from the date of passing of order u/s 143(3) i.e. 26/12/2008. The limitation in the present case therefore expired on 31/03/2011. The impugned order under section 263 having been passed on 22/03/2013 it is well beyond the period of limitation. In view of the same we hold that the impugned order is barred by limitation. Accordingly the order of the Ld. CIT u/s 263 is vacated. - Decided in favour of assessee.
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