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Showing 201 to 220 of 1903 Records
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2015 (12) TMI 1709
Conviction and sentence passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial under sections 147, 148, 302/149 IPC - Held that:- Since inspite of best efforts neither reconstruction of record is possible nor re-trial is possible, hence, the criminal appeal cannot be decided on merit in absence of relevant prosecution papers including the statement of witnesses and as such there is no option but to set aside the impugned judgment of conviction. In view of the fact, the judgment and order of conviction and sentence dated 16.10.1981 passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial No. 350/79, under sections 147, 148, 302/149 IPC, P.S. Chandpur, District Bijnor, is hereby set aside.
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2015 (12) TMI 1708
Addition u/s 68 on bogus share capital - any incriminating material whatsoever found during the search to justify initiation of proceedings under Section 153A? - HC order [2015 (9) TMI 115 - DELHI HIGH COURT] saying there is a factual finding that “no incriminating evidence related to share capital issued was found during the course of search as is manifest from the order of the AO.” No justification in invoking Section 68 for the purposes of making additions on account of share capital - Held that:- The special leave petition is dismissed. Decided against revenue.
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2015 (12) TMI 1707
Appropriate directions for convening the meeting of the Equity Shareholders of the Applicant Company and also for holding meetings of the Secured & Unsecured Creditor(s) of the Applicant Company given - quorum for meeting need to be adhered - The Chairman of the aforesaid meeting shall report the result of the said meetings to this Court on or before 9th February, 2016 and the said report shall be verified by his affidavit.
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2015 (12) TMI 1706
Revision u/s 263 - The following questions are framed for determination:
(i) Did the notice dated 18th March 2013 issued by the Commissioner of Income Tax, Kolkata to the Assessee at the address shown therein satisfy the requirements of Section 263 (1) of the Act as regards providing the Assessee an opportunity of being heard?
(ii) If the answer to Question (i) is in the affirmative, whether on merits the order dated 30th March 2013 passed by the Commissioner of Income Tax, Kolkata under Section 263 of the Act is sustainable in law?
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2015 (12) TMI 1705
Scheme of Amalgamation - Held that:- As proposed Scheme of Amalgamation is for the benefit of both the companies and their shareholders. The proposed scheme will not adversely affect the rights of any of the creditors of the petitioner companies in any manner whatsoever.
In this view of the aforesaid factual matrix, when all the equity shareholders, secured and unsecured creditors of both the companies have consented to the Scheme of Amalgamation, convening of their meetings are ordered to be dispensed with.
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2015 (12) TMI 1704
Entitlement to deduction u/s 80-IB - scope of manufacture - denial of claim as conversion of 24 Kt Gold into 22 Kt Gold does not amount to manufacture - Held that:- The activity for converting gold bricks, biscuits or bars, into jewellery amounts to “production or manufacture of a new article. The gold, silver or platinum in bar, biscuits or brick form, is converted by manual labour and by the use of implements/tools or by machinery, culminating into an entirely new article/thing called jewellery or ornaments. Jewellery is a wearable item and is used by both men and women. Jewellery/ornaments in common parlance or in commercial terms has a distinct identity, treated as a new article and not the same as raw or standard gold in the form of bricks, biscuits or bars. As a result of the said processing a commercially different saleable product comes into existence. Jewellery has a distinctive name, character and use. It can no longer be regarded as the original commodity, has separate consumers and is a new commercial commodity. The activity of the respondent assessee amounts to ‘manufacture or production - Decided in favour of assessee.
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2015 (12) TMI 1703
Validity of Orissa Act - establishment of Special Courts under the Orissa Act - confiscation of property or money or both - refund of confiscated money or property - unconstitutionality - Held that:- (i) The Orissa Act is not hit by Article 199 of the Constitution.
(ii) The establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution.
(iii) The provisions pertaining to declaration and effect of declaration as contained in Section 5 and 6 of the Orissa Act and the Bihar Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness.
(iv) The Chapter III of the both the Acts providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution.
(v) The procedure provided for confiscation and the proceedings before the Authorised Officer do not cause any discomfort either to Article 14 or to Article 20(3) of the Constitution.
(vi) The provision relating to appeal in both the Acts is treated as constitutional on the basis of reasoning that the power subsists with the High Court to extend the order of stay on being satisfied.
(vii) The proviso to Section 18(1) of the Orissa Act does not fall foul of Article 21 of the Constitution.
(viii) The provisions contained in Section 19 pertaining to refund of confiscated money or property does not suffer from any kind of unconstitutionality.
(ix) Sub-rules (a) and (f) Rule 12 of the 2010 Rules being violative of the language employed in the Bihar Act are ultra vires or anything contained therein pertaining to the summary procedure is also declared as ultra vires the Bihar Act.
Consequently, the appeals arising out of the judgment and order passed by the High Court of Orissa are dismissed and the appeals which have called in question the legal validity of the judgments and order passed by the High Court of Patna are allowed to the extent indicated hereinbefore. Regard being had to the facts and circumstances of the case, we refrain from imposing any costs in the civil appeals.
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2015 (12) TMI 1702
Validity of the reassessment - Held that:- We found the issue regarding the validity of the reassessment is duly covered in Shree Radheshyam & Company (2015 (11) TMI 1537 - ITAT DELHI) in which this Tribunal respectively, has quashed the reassessment proceedings. We also note that in these cases the ld. Assessing Officer had recorded similar reasons, and the party from which the assessee therein had made purchases were also same, as in the case of the present assessee. Therefore, respectfully following the decisions above, we quashed the reassessment proceedings.
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2015 (12) TMI 1701
Scheme of Arrangement - dispensation of meetings - requirement of convening the meetings of its equity shareholders, secured and unsecured creditors - Held that:- The Board of Directors of the applicant/transferor company and the transferee company in their separate meetings held on 27th August, 2015 and 26th August, 2015 respectively have unanimously approved the proposed Scheme of Arrangement. Copies of the Resolutions passed at the meetings of the Board of Directors of applicant/transferor company and the transferee company have been placed on record.
The applicant/transferor company has 02 equity shareholders and 28 unsecured creditors. Both the equity shareholders and 16 out of 28 unsecured creditors, being 57.14% in number and 80% in value, have given their consents/no objections in writing to the proposed Scheme of Arrangement. There consents/no objections have been placed on record.
They have been examined and found in order. In view thereof, the requirement of convening the meetings of the equity shareholders and unsecured creditors of the applicant/transferor company, to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Arrangement is dispensed with. There is no secured creditor of the applicant/transferor company, as on 31st August, 2015.
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2015 (12) TMI 1700
Cancellation of Bail application - illegal storage and then export of red sanders, a prohibited item - case of respondent is that the accused respondents have correctly been granted bail and bail once granted is not liable to be cancelled - Held that: - the court below is found to have released the accused respondents on bail relying on the judgment rendered in the case of Sanjay Chandra v. CBI, [2011 (11) TMI 537 - SUPREME COURT], which was a case relating to telecommunication laws and telecom service license and spectrum obtained fraudulently, whereas in the present case, the offence committed by the accused respondents is an offence of social economic offence of international ramifications, which is very serious offence considering the fact that Red Sanders (Red Sandalwood) is included in the endangered list of plants in CITES, an international agreement signed by 180 countries, and the accused respondents are habitual offenders and the possibility of re-occurrence of offence of similar nature cannot be ruled out, particularly when red sandalwood has a lucrative market for smugglers and as per the details given by co-accused person, the Red Sanders of the value of ₹ 4-5 crores has been smuggled out of the India, the Court below is found to have committed error while granting bail to the accused respondents.
The cancellation of bail applications filed by the petitioner are allowed - decided in favor of Revenue.
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2015 (12) TMI 1699
Validity of award from arbitration - Held that:- HC order confirmed. [2015 (6) TMI 1133 - MADRAS HIGH COURT]. Contention by the opposite party that he was not aware of the Arbitration proceedings not acceptable. Therefore, find that the award is not void ab initio and non-est in law. Principles of natural justice have been followed by the learned Arbitrator.
No legal and valid ground for interference. The Special Leave Petition is dismissed.
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2015 (12) TMI 1698
Waqf suit instituted by the petitioner before one member Waqf Tribunal held to be not maintainable - disputes in respect of waqf property - whether till a three member tribunal is constituted by the State Government by issuing notification one member tribunal as constituted under 1995 Act shall continue functioning or it ceases to have any jurisdiction to entertain disputes and decide it in accordance with the provisions of Act? - Held that:- Learned senior counsel appearing for the Wakf Board, has rightly contended that the intention of the Parliament while substituting Section 83(4) is not that one member tribunal vanishes or ceases to exist till a three member tribunal is constituted. Intention to bring new sub-section (4) in Section 83 is nothing but improvement in the constitution of the Tribunal and both the earlier and the substituted sub-sections are not inconsistent with each other.
Having regard to the law discussed hereinbefore and giving our anxious consideration in the matter, we are of the definite opinion that the High Court has committed serious error of law in holding that after the Amendment Act, 2013 came into force, the one member Tribunal exercising jurisdiction ceased to exist even though a fresh notification constituting three member Tribunal has not been notified. The High Court further erred in law in directing the Civil Court to decide the disputes in respect of waqf property.
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2015 (12) TMI 1697
Eligibility of awarding of contract of lease of FSLR and VP - lease the luggage space in FSLR to traders and other interested persons after inviting tenders from them - Held that:- Railway tariff no doubt has to be realistic and keep pace with time and if the State so perceives, need not be a losing financial proposition. While it may be both pragmatic and sagacious to auction FSLR & VP it can be done with an objective of gathering the optimum revenue. It has not been contended before us nor is any material available disclosing that the tariff itself has been increased by adherence to the statutory procedure.
We are, however, unable to accept the argument articulated on behalf of the Appellant that the Respondents are not entitled or empowered to auction the space for a particular period. It may do so provided the auction contractor adheres to the prescribed tariff. We permit a period of three months to the Respondents to comply with the impugned Judgment of the Division Bench.
The Appeal is accordingly disposed of in these terms. The Respondents are directed to ensure that the successful tenderer, in our case, Respondent No.4, does not charge carriage prices in excess of those prescribed by the Respondents in Coaching Tariff No. 24 Part III. It will be seen that this direction is not drastically different to that contained in the impugned Judgment since the fixation of “the outer limit or the upper limit of rates chargeable by the contractor” would have been carried out by complying with a procedure envisaged by law. The Judgment of the Division Bench is upheld, but to this extent only.
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2015 (12) TMI 1696
Import of Gold jewellery - preferential rate of duty - case of petitioner is that there is no doubt regarding the credibility of the declaration given by the exporter; the country of origin certificates also bear a specific certification from the concerned authorities in Indonesia to the effect that the declaration of the exporter, that the goods are of Indonesian Origin, is correct; therefore, the goods ought to have been cleared by granting exemption in terms of the exemption notification, and the Origin Rules; however the goods, imported by the petitioners under the relevant Bills of Entry, were not cleared for home consumption - the petitioner has an effective and efficacious alternative remedy of an appeal under Section 128 of the Customs Act, without availing which they had invoked the jurisdiction of this Court under Article 226 of the Constitution of India - Held that: - Alternative remedy, Not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution - The existence of an alternative remedy is merely a factor to be considered, and would not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed - As the petitioners question the adjudication order on the grounds of violation of principles of natural justice, and that the 3rd respondent lacks jurisdiction to pass the adjudication order even before a retroactive check is conducted, we see no reason to relegate them, after having heard the matter elaborately on merits, to the alternate remedy of an appeal under the Customs Act.
Does the third respondent lack jurisdiction to pass the adjudication order without a retroactive check being conducted? - Held that: - From a reading of Clause 16(b), it is evident that the requirement of obtaining information of the documents, relating to the origin of the imported goods in accordance with its domestic laws and regulations, is a preclude to the request for retroactive check in terms of Clause 16(a). If the documents, sought for by the competent authority, are furnished by the importer and, if the concerned authority is satisfied with it, then preferential tariff can be extended to the importer. If, on the other hand, the information, or the documents furnished, are found not to be satisfactory, then, in terms of Clause 16(a), a retroactive check can be conducted - It is only after a retroactive check is conducted, and the concerned authorities are satisfied that the Certificate of Origin cannot be accepted, are they entitled, thereafter, to pass an adjudication order under the Customs Act. Without conducting a retroactive check, in terms of Clause 16(a) of Annexure-III to the 2009 Rules, it was not open to the 3rd respondent to pass an adjudicating order. The impugned orders dated 30-10-2015, passed even before conducting a retroactive check in terms of Clause 16(a), are without jurisdiction.
Was the adjudication order dated 30-11-2015 passed in violation of principles of natural justice? - Held that: - Reliance placed on documents, not made available to the assessee, violates principles of natural justice; and necessitates the impugned order being set aside on this ground also. - A person, against whom an order is passed, is entitled to a proper hearing which would include supply of the documents relied upon by the adjudicating authority. Only on knowing the contents of the documents, can he furnish an effective reply.
Does the judgment in Mahadev Metaliks Pvt. Ltd. [2015 (12) TMI 476 - ANDHRA PRADESH HIGH COURT], to the extent imported goods were directed to be released on payment of 30% differential duty, constitute a binding precedent? - Held that: - On provisional assessment, the assessee can only be asked to deposit a sum not exceeding 20% of the provisional duty. In addition thereto, it is open to the concerned officer to call upon the petitioner to furnish such security or surety or both as he deems fit. While the 2011 Regulations disable the concerned authority from requiring deposit of a sum exceeding 20% of the provisional duty, the nature of the surety and the extent of the security to be furnished is, under Regulation 4, left to the discretion of the proper officer - If the order in Mahadev Metaliks Pvt. Ltd. constitutes a binding precedent, this Court would be required to refer the matter to a Full Bench for resolution of the issue, even if it were to disagree with the view taken in the said judgment, for it is well settled that when a bench of coordinate jurisdiction disagrees with another bench of coordinate jurisdiction, whether on the basis of “different arguments” or otherwise on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs - If, on an analysis of Regulation 4, the said regulation was misconstrued, it would then not have been a ground for impugning the authority of the earlier judgment. It is only because Regulation 4 was not considered, despite it being brought to their notice, and was not preceded by an analysis of the said Regulation, and no reasons were assigned for issuing such a direction, does the judgment, in Mahadev Metaliks Pvt. Ltd., not constitute a precedent binding on a co-ordinate bench.
Can an order, similar to that passed by the Supreme Court in “Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.” [2010 (5) TMI 592 - DELHI HIGH COURT], be passed in these writ petitions also? - Held that: - Exercise of the extraordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226 - It would be wholly inappropriate for us, therefore, to issue a direction, similar to that passed by the Supreme Court, with regards surety or security to be furnished by the assessee for release of the subject goods.
The High Court cannot substitute its views for that of the authority on whom the statutory regulations confer discretion - Discretion conferred by statutory regulations, must be exercised in a rational and reasonable manner.
The discretion conferred on the proper authority, under the 2011 Regulations, is not fettered by the C.B.E. & C. Circular dated 6-10-2015.
We wish to make it clear that we have not expressed any opinion on the amount which the petitioner must be asked to deposit or the nature of surety or the extent of security which the petitioner should be called upon to furnish for release of the imported gold jewellery, as these are all matters in the discretion of the proper officer under Regulation 4 of the 2011 Regulations. Suffice it to direct the third respondent to release the imported goods, after exercising his discretion in terms of Regulations 2 and 4 of the 2011 Regulations and assigning reasons therefor, with utmost expedition and, in any event, not later than two (2) weeks from today.
Petition disposed off - decided partly in favor of petitioner.
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2015 (12) TMI 1695
Guilty of contraventions of Section 8(3) and 8(4) of FERA, 1973 r/w Section 49(3) and 49(4) of FEMA, 1999 - Penalty imposed - whether there has been no lapse/FERA violations on the part of the company and the transactions were wrongly reported in BFE due to oversight of the bankers of the company? - Enforcement Directorate creation - Held that:- We see no reason to remand the matter back to Adjudicating Authority at this stage when parties have been litigating for a period of more than 11 years. The genuineness of the papers filed by the appellants as proof of due compliance of the requirement of filing of the exchange control copies of the bills of entry with the authorized dealer within time has not been disputed by the respondents. The appeals are continuation of the trial proceedings. We are convinced on the basis of evidence filed by the appellants in the instant appeals that they had timely submitted the exchange control copies of Bills of Entries to the respective authorized dealers (banks). We are also convinced with argument that it was negligence/mistake on the part of the authorized dealers in not reporting the due compliances to the RBI and instead furnished wrong information. The basic fault appears to us on the part of the banks but since they are neither parties in these appeals nor they have been afforded any opportunity to place their version before the Tribunal, therefore, we are not making any observations against them.
We would like to emphasize that Enforcement Directorate has not been created for the sole purpose of prosecuting the matters of alleged violations under FERA/FEMA but they are duty bound to assist the Tribunal and the Courts by placing the correct facts before them on the principle of fair play so that the parties get fair justice and the faith of the parties is not eroded from the judicial system. The Enforcement Directorate is an organ in the system of dispensation of justice and the way the matters in which no case was made out as per the communication of the RBI was persuaded, without discloser of the contents of the communication received by the Enforcement Directorate, the appellants had to suffer not only in terms of expenditure that might have been incurred in the litigation but also wastage of lot of valuable time of the appellants, Tribunal and Courts. The expenses incurred in litigation by the appellants may run perhaps in lakhs of rupees. However, we think it appropriate that for the failure to place the communication before the Tribunal and convey the contents in time the respondents be imposed a token costs in all the appeals for their conduct.
In view of the above discussions the appeals deserve to be allowed with costs.
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2015 (12) TMI 1694
Oppression and mismanagement - maintainability of petition - proof of demurer application - consenting shareholders - Held that:- The number of shareholders have been attempted to be increased by opening new folios in the register of members though the shareholders are limited. In fact, the spirit of section 399 concentrates on one-tenth of the ownership either in terms of the percentage of shareholding or in terms of number of shareholders of the company and hence, for this purpose, the real ownership of the company needs to be kept in mind in terms of section 247 of the Companies Act, 1956.
On this logic, the contention of having 34 members in the company based on different folios only does not carry legal support and substance. In fact, even the same individual has been counted twice or thrice and hence, on this count itself, it of the considered opinion that the number of members are actually less than 30. In view of this, the petitioners along with consenting shareholders being 3 in number constitute more than 10 per cent of the total number of members and thereby, the company petition is maintainable in terms of section 399(1) of the Companies Act, 1956. As such, the prayer made in the instant company application to dismiss the company petition on the ground of maintainability is hereby disallowed.
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2015 (12) TMI 1693
Addition u/s 40A(3) - cash payment to his permanent employees for more than ₹20,000/- in a day - Held that:- It is a relevant consideration for the assessing authority under the Income Tax Act that before invoking the provisions of section 40A(3) in the light of Rule 6DD as clarified by the Circular of the CBDT that whether the failure on the part of the assessee in adhering to requirement of provisions of section 40A(3) has any such nexus which defeats the object of provision so as to invite such a consequence.
We hold that the purpose of section 40A(3) is only preventive and to check evasion of tax and flow of unaccounted money or to check transactions which are not genuine and may be put as camouflage to evade tax by showing fictitious or false transactions. Admittedly, this is not the case in the facts of the assessee herein. The assessee had issued bearer cheques in the name of respective labours which is evident from the additional details submitted by the assessee and placed on page 2 to 6 of the additional details. It is also pertinent to note that the Hon’ble Rajasthan High Court in the case of Smt.Harshila Chordia vs ITO reported in (2006 (11) TMI 117 - RAJASTHAN HIGH COURT) had held that the exceptions contained in Rule 6DD of Income Tax Rules are not exhaustive and that the said rule must be interpreted liberally.
Thus no hesitation in deleting the addition u/s 40A(3) - Decided in favour of assessee.
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2015 (12) TMI 1692
Maintainability of appeal - fee payable as per the statutory provisions of section 253(6) not paid - Held that:- If the memorandum of appeal is deficient in its enclosures, as prescribed, then only the Tribunal can exercise its discretion to accept the memorandum of appeal. In the present appeals, the enclosures are not defective but the fee payable as per the statutory provisions of section 253(6) was not paid. Since the Memo of Appeal is not accompanied by the fee, as prescribed, we are of the opinion that there is no discretion to the ITAT to accept Memorandum of Appeal filed, in violation of the statutory provisions.
ITAT being a quasi-judicial body under the I.T. Act, it has to follow the statutory provisions as prescribed. Under analogous circumstances, while dealing with an appeal filed by an assessee against the order passed under section 271FA, the ITAT, Cochin Bench in the case of Sub-Registrar Office, Meppayur vs. DIT (Intelligence) (2014 (1) TMI 102 - ITAT COCHIN) observed that the Tribunal cannot travel beyond the provisions of the Act and cannot admit an appeal even if the opponent party gives consent permitting the appellant to file an appeal. In otherwords, the consent of a litigant party would not confer jurisdiction on a quasi judicial authority unless and until it is otherwise conferred under the statute. Memorandum of appeals filed by the Revenue are hereby rejected as not maintainable.
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2015 (12) TMI 1691
Sufficient cause from appearing on the date of hearing - assessee contended that though the appeal was adjourned for 05.05.2015 but erroneously, he noted the date of hearing as 06.05.2015 - Held that:- Considering the explanation of the assessee, we are satisfied that assessee was prevented by sufficient cause from appearing on the date of hearing. Further, the appeal of assessee has not been decided on merits, therefore, one more chance could be given to the assessee to argue the appeal on merits.
The order dated 05.05.2015 is recalled and appeal of the assessee be fixed for final hearing on 18.02.2016 for which date, no separate notice will be issued to the assessee. Miscellaneous Application of the assessee is allowed.
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2015 (12) TMI 1690
Non-appearance on the last date of hearing - Held that:- Reason given by the learned counsel for the applicant in the Miscellaneous Application for nonappearance on the last date of hearing is that inadvertently the applicant wrongly noted the date of hearing in this case as 15.7.2015 instead of 15.6.2015. By the time, it came to the notice of the applicant that the date was wrongly noted, the appeal was dismissed for non prosecution. In this regard, an affidavit of the managing trustee of the applicant trust was placed on record.
Considering the explanation of the applicant, we are of the view that the applicant has been able to explain the sufficient cause for non appearance. Therefore, one more opportunity could be given to the applicant to argue the appeal on merits.
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9911796707
