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Showing 221 to 240 of 2152 Records
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2018 (9) TMI 1936
Order without taking note of the relevant materials and the objections raised by the petitioners - HELD THAT:- It is an order based on the ipse dixit of the Assessing Officer without adverting to consider the relevant materials produced before him and if that is the factual position as it emerges on going through the detailed order, we have no hesitation in holding that it is an order without taking note of the relevant materials and the objections raised by the petitioners and this itself is sufficient to hold that the order has been passed in violation of the principles of natural justice.
It is a cardinal principle of law that if relevant materials and objections are produced before a quasi judicial authority, the quasi judicial authority is duty bound, under law to advert to consider the same, discuss them and then reject it by recording reasons. In the said cases, this principle has not been followed.
AO has proceeded to pass the assessment orders on the basis of legal principle, but while doing so, has not discussed the show cause filed by the petitioners and the relevant documents which they had brought on record in their defence, including the valuation report.
We see no reason to reject the claim made by the petitioners, on the contrary, we are satisfied that the order passed is in gross violation of the principles of natural justice.
Accordingly, we allow these petitions, quash the orders of assessment. The assessees in all these petitions, shall now appear before the Assessing Officer along with certified copy of this order and all other relevant documents that they may propose to file by 15th of February, 2018 and on the same being filed, the Assessing Officer shall proceed to decide the question in accordance with law at an earlier date
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2018 (9) TMI 1935
Interest income from deposit - income from business or income from other sources - HELD THAT:- The assessee company has been incorporated for setting up of infrastructure facilities being construction of toll road between Hazaribag and Ranchi which is under construction. The assessee earned the interest income upon the borrowed funds of ₹ 46,03,457/- which was deducted from the borrowing cost to arrive at the figure of capital work in progress of ₹ 1,86,25,83,284/-. The promoters of the company had introduced money by way of share capital and also obtained credit facilities from the banks and institutions.
The total funds were exclusively meant for use for setting up of the infrastructure facility. The lenders disbursed the funds at specified intervals and the said funds were required to be used for the purpose of setting up of the project. Needless to say that the on account of the time difference, the funds may lies with the bank resultantly earning the interest income in dispute. These funds were deposit in the bank for a short period for the purpose of utilizing the same in the project. Eventually, raising the interest is clearly on account of business exigency. Taking into account, all the facts and circumstances, we are of the view that the finding of the CIT(A) is not justifiable hence the same is hereby ordered to be set aside and we treat the interest income as business income of the assessee. - Decided in favour of the assessee
Allowance of revenue expenses - HELD THAT:- On appraisal of the order passed by the CIT(A), we noticed that the CIT(A) has not decided the issue on the basis of this fact that the same was not raised before the AO. Anyhow this issue is required to be adjudicated in accordance with law. In the said circumstances, we set aside the finding of the CIT(A) and the issues are required to be adjudicated at the end of the CIT(A) in the interest of justice in accordance with law by giving an opportunity of being heard to the assessee. Accordingly, these issues are decided in favour of the assessee against the revenue.
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2018 (9) TMI 1934
Correction of mistake in C-form - amount of purchase reflected in wrong column - HELD THAT:- The respondent shall release the C-Forms to enable the appropriate correction to be made for the relevant quarters. However, these directions shall remain suspended till the time SLP (C) 13928/2018 is pending and shall be subject to the final decision of the Supreme Court in that case.
Petition disposed off.
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2018 (9) TMI 1933
Reopening of assessment u/s 147 - notice barred by limitation - time limit for issue of notice - scope of amendment - HELD THAT:- In the instant case, the assessment involved is 2008-09 and the time limit for issue of notice u/s 148 i.e. 2 years has expired in 2010-11 before the amendment came into force. Since the time limit has already expired for issue of notice u/s 148, we hold that the notice issued u/s 148 is barred by limitation. Accordingly, the notice issued u/s 148 is quashed and the consequent assessment is annulled.
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2018 (9) TMI 1932
Validity of order on account of petitioner lacking in requisite qualification pertaining to computer education - the petitioner submits that the issue raised in the present writ petition is squarely covered by judgment of this Court in HEERA LAL JAT VERSUS STATE OF RAJASTHAN, DEPUTY SECRETARY, ADMINISTRATIVE REFORMS (GROUP-3) DEPARTMENT, ADDITIONAL COMMISSIONER, CHIEF EXECUTIVE OFFICER, [2018 (8) TMI 1921 - RAJASTHAN HIGH COURT] where it was held that The respondents are directed to consider candidature of the petitioner for appointment on the post of LDC in pursuance of advertisement of the year 2013 while treating him to be having a valid qualification of Computer Application obtained in Graduation and provide him appointment on the post of LDC if he is otherwise eligible and meritorious within a period of 60 days from today.
The writ petition filed by the petitioner is allowed with the similar direction as given in the case of Heera Lal Jat with the additional stipulation that the above relief would be applicable only if the vacancies are available.
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2018 (9) TMI 1931
Exemption of central excise duty under the notification dated 1-3-2001 - independent processor - it is the stand of the petitioner that, during the relevant point of time, i.e., between 2001-2004, the petitioner had been involving or engaging only in processing of fabrics as an independent processor and not involving any other activities even though number of activities had been mentioned in the memorandum of articles of the petitioner company - HELD THAT:- The manufacturer is the petitioner company. The petitioner company, even according to the respondents, has not engaged in the spinning of yarn or cotton weaving of cotton fabrics and the petitioner company does not have any proprietary interest over the said factories or companies.
Merely because one or more shareholders of the petitioner company is having proprietary interest in some other factory engaged in yarn or cotton, it does not mean that the petitioner is having direct control and proprietary interest over the said factories. Since, the petitioner company is a registered company under the Companies Act, no doubt it is a juristic person and every shareholder of the petitioner company is independently a juristic person. Merely because one or more shareholders of the petitioner company is having proprietary interest in other factories that would not ipso facto make the petitioner company that it also have such proprietary interest over the said factories. This distinction has not been considered by the sixth respondent while making the recommendatory note through her order dated 13-2-2003 supplied to the first respondent.
The intention of the notification to give exemption to excise duty is to encourage the independent processor and in this regard, the Government of India has given power to the first respondent to independently assess every claim made in this regard by a processor as to whether he is an ‘independent processor’ for the purpose of exemption of excise duty and such power shall be exercised cautiously and diligently.
In the case in hand, merely because the petitioner is a limited company and it is having memorandum of articles and objects to have various activities apart from textile industry, based on which, no decision can be taken that the petitioner company could not be eligible to get the benefit of independent processor merely because, it is having other objects in the memorandum of articles. If this kind of decision is taken to reject the claim of the petitioner, then, the very purpose of giving exemption to the eligible processor would get defeated thereby, the very object of giving exemption notification would also get defeated - the reasoning given by the sixth respondent in her communication dated 13-2-2003 would not be sustainable and based on which, without giving an opportunity to the petitioner since, the first respondent mechanically passed the impugned order rejecting the claim of the petitioner which can also be unsustainable and therefore, this Court has no hesitation to interfere with both the impugned orders.
The matter is remitted back to the first respondent for reconsideration - While making such re-consideration, the first respondent must independently apply his mind of course on the inputs supplied by the sixth respondent by taking into account the supporting materials supplied by the petitioner to establish the status as an ‘independent processor’ for the relevant period i.e., between 2001-2004 where assertively the petitioner claimed that he did not involve in any other manufacturing or spinning or woven process of fabrics except the independent processing as set out in the exemption appended to the notification.
Petition allowed by way of remand.
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2018 (9) TMI 1930
Winding up petition - case of petitioner is that the company is unable to pay its debts to petitioner and is commercially insolvent - HELD THAT:- Upon receipt of the authenticated copy from petitioner's advocate, the Official Liquidator shall forthwith cause notice to all concerned directors calling upon them to file their respective statement of affairs strictly in consonance with the provision of law. All directors of respondent company, now in liquidation, are hereby directed to file their respective statements of affairs as required under Section 454 of the Companies Act, 1956, failing which, the Official Liquidator shall proceed further and lodge criminal complaint against the erring directors, without seeking prior sanction of this Court for initiation of criminal prosecution.
Registry to return the amount of ₹ 10,000/ deposited by petitioner subject to any deductions if any.
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2018 (9) TMI 1929
Bail application - application filed in the prescribed Form No.I is found to be complete - possession of cash of ₹ 1 Crore in demonetized notes - HELD THAT:- The FIR does not prima facie reveal that the first informant had paid the money to the applicant. The allegations are mainly against Anita and Mukund Masane. It is also to be noted that the applicant is in custody since 20 th December, 2017, and his presence is no longer required for the purpose of interrogation or investigation. The learned APP has also submitted that the applicant has no criminal antecedents. He is a permanent resident of Kalyan. There is no possibility of the applicant absconding and or thwarting the course of justice.
The applicant is entitled for bail subject to conditions imposed.
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2018 (9) TMI 1928
Stoppage of salary - suppression of leave - It is the case of the writ petitioner that his salary has been stopped from the month of August, 2018 and he is greatly prejudiced by the same - submission of pension papers - HELD THAT:- I am unable to comprehend as to why the petitioner has suppressed the documents in relation to application for leave for 356 days made on April 19, 2018 while filing this writ petition. For him to get justice, it is required that he comes before this Court with clean hands. Suppression of all the 'leaves' that he has taken and admitted to is a material fact that is relevant in the present case as he is challenging the salary overdrawn by him, as a result of the unsanctioned leave taken by him in the school. Without producing these documents in Court, he has tried to create an impression that great injustice has been done to him by the school authorities for stopping the salary overdrawn on account of leave. These documents have not been disclosed in the writ petition and since these documents are the basis of the salary overdrawn calculated by the Administrator and provided to the petitioner the same amounts to suppression of material facts.
Whether this Court sitting in its writ jurisdiction should take note of the material suppression by the writ petitioner and dismiss this writ petition? - HELD THAT:- The Indian and English Courts have consistently taken the view that one who approaches the Court must come with clean hands. It is the bounden duty of the Court to keep the stream of justice absolutely clean. Anyone who approaches must give full and fair disclosure of all the materials. The Courts must not allow anyone to abuse the Court process. In case the petitioner conceals anything that is known to be material such an action would lead to an inference of fraud, and even if not fraud, definitely would lead to a presumption that the petitioner has not approached the Court with clean hands - One must be even more careful when one approaches this Court in its extra ordinary jurisdiction for seeking a writ of mandamus and no person can be permitted to adopt dubious, dishonest and fraudulent means and make false averments or conceal the facts while submitting such a writ petition. If a person does so, not only is the petitioner not entitled to any relief from the Court but should be subject to exemplary costs so as to deter future litigants from pursuing a similar course of action.
The writ petitioner has suppressed the material facts that should have been brought to the notice of this Court. This view of mine is buttressed by the fact that the documents produced by the respondent No. 5 referred to calculation of leave that has been made in the presence of the writ petitioner and were also handed over to him in the month of July, 2018. Furthermore, his own application for grant of special leave made in the month of April, 2018 has not been annexed to the writ petition - The petition having been filed on August 28, 2018, there are no justified reason as to why these documents were suppressed before this Court.
Petition dismissed.
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2018 (9) TMI 1927
Jurisdiction - principles of natural justice - violation of Section 91 and Section 91A of the Maharashtra Co-operative Societies Act - alternate efficacious remedy in view of Section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the present case the party has not only one but two alternate remedies available. One remedy that is available is under Section 61 of the said Code to prefer an appeal before the National Company Law Appellate Tribunal. The party has also further remedy under Section 62 of the said Code to prefer an appeal if it is aggrieved by an order of the Appellate Tribunal, before the Hon'ble Supreme Court on question of law. Upon perusal of pleadings and prayer clauses of the petition it would reveal that petition is based on various questions of law that have been framed by the petitioner. Even if the petitioner fails before the learned Appellate Tribunal, the petitioner can very well raise the questions of law which are sought to be raised in the present petition, before the Hon'ble Supreme Court.
When the Court is flooded with thousands of petitions, we do not expect the petitioner to approach this Court under Article 226 of the Constitution of India. The Court cannot have the luxury to entertain the petition when the petitioner has not only alternate but equally efficacious remedy in law. Hence the petition is dismissed on the ground of availability of alternate remedy in law.
Perusal of the record would reveal that there is no interim protection granted by the earlier Bench when the petition was entertained. Shri Nedumpara states that there was no written order passed by the Court but one of the Bench granted oral protection. The Court proceeds on the basis of the record that is available before it.
Notice of Motions are disposed of.
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2018 (9) TMI 1926
Initiation of CIRP - Service of notice on Corporate Debtor - HELD THAT:- Financial Creditor is directed to serve the notice on the Corporate Debtor and file affidavit of service within three days. Reply, if any, may be filed within seven days.
Service of summons in person - HELD THAT:- Prayer is allowed.
List the matter on 17th September, 2018 for admission.
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2018 (9) TMI 1925
Initiation of CIRP - whether petitioner is defaulter or not - section 7 of IBC - HELD THAT:- The Adjudicating Authority/NCLT is obliged to determine the factum of occurrence of the 'default' on part of the alleged corporate debtor before admitting a petition under Section 7 of the IBC - In other words, determination of commission of 'default' by the corporate debtor by the Adjudicating Authority/NCLT is a per-condition for admitting the petition under Section 7 of the IBC - The said stage in the matter has not yet arrived. It is therefore, open for the petitioner to establish “no default” on its part before the Adjudicating Authority/NCLT.
The issue of default, if any, is an issue of fact depending upon the evidence and this Court finds itself unequipped for deciding such factual issue more particularly when they can be dealt with and decided by the other statutory authority before whom the proceedings are pending.
Section (7) of the IBC permits a financial creditor to file application for initiating Corporate Insolvency Resolution Process against the corporate debtor when a 'default' has occurred. Therefore, the filing of application for initiating Corporate Insolvency Resolution Process by the petitioner who is a financial creditor is not prohibited under law even if there is no direction to the said effect by the RBI - Therefore, the direction of the RBI dated 14.8.2018 has no material bearing upon the proceedings initiated by ICICI Bank under Section 7 of the IBC.
The writ petition is dismissed with liberty to the petitioner to participate in the proceedings under the IBC before the NCLT and may raise all possible objections as are permissible in law.
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2018 (9) TMI 1924
Additions u/s 14A - expenditure incurred towards earning of exempt income u/s 10(34) - CIT-A made the disallowance on the ad-hoc basis - Rule 8D are applicable from the assessment year 2008-09 - in present case, matter relates to AYs prior to 2008-09 - Held that:- the disallowance as per the provision of Rule 8D cannot be made for the year under consideration. However, the possibility of incurring the expenses in relation to exempted income on account of administrative expenses cannot be ruled out. Therefore some expenses on reasonable basis should be disallowed in pursuance of the provision of section 14A of the Act. - AO directed to disallow administrative expenses at the rate of 1% of the exempted/dividend income.
MAT - computation of book profit u/s 115JB - consideration of disallowances made u/s 14A r.w.r. 8D - Held that:- ad-hoc disallowance will serve the justice to the Revenue and assessee. Therefore to put the dispute to rest in given facts & circumstances, we direct for the ad-hoc disallowance to avoid the multiplicity of the proceedings and unnecessary litigation. - onsidering the peculiar circumstances of the case, we propose to limit the disallowance on an ad-hoc basis @ 1% of the dividend/exempt income as per the clause (f) to Explanation-1 of Sec. 115JB of the Act.
MAT - computation of book profit u/s 115JB - additions on account of amount written back - the amount of interest was waived off by the Vijaya bank - Held that:- it can be safely presumed that the effect of provision created for interest expenses in the earlier years have been duly given and offer to tax under the provision of MAT. Accordingly, the assessee cannot be made liable for paying tax under the provision of MAT for the year in which it was written back. - Additions deleted.
Interest liability u/s 234B and 234C - Held that:- it is clear that there was a shortfall in the payment of advance tax on account of the retrospective amendment, but there will be no interest liability u/s 234B and 234C of the Act in terms of judgment as discussed above. Thus the ground of the assessee is allowed.
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2018 (9) TMI 1923
Right of the purchaser of property on power of attorney over legal heirs for receiving deposits made against suit property - The property was acquired by the income tax department in 1978 u/s 269-I and 269-K - the petitioners' contention that in terms of the judgment of the Supreme Court in M.Mathew Thomas [1999 (2) TMI 7 - SUPREME COURT], the property never having vested in the Income Tax Department no compensation could be paid by that Department and hence it would continue to be owned by them (petitioners)
Held that:- argument has to be rejected firstly in view of the fact that the petitioners' suit seeking a declaration that they are owners-in-possession of the suit property and that the respondent department be injuncted from interfering in their possession thereof, has been dismissed, with, to again repeat, the said judgement dated September 16, 2008, passed in RSA No.1538 of 2005, having become final, very obviously this Court cannot sit upon that judgment to hold to the contrary.
The case file of the said appeal having been called for, it is seen that, in fact, the contention raised by the petitioners presently with regard to Chapter XXA having been made inapplicable to any transfer of immovable property made after September 30, 1986, has been duly dealt with in that judgment, noticing Section 269RR of the Act, eventually therefore holding that since the property was acquired well prior to 1986 and the acquisition having become final by way of dismissal of the appeal and the writ petition filed against such acquisition, the amendment made, w.e.f. September 30, 1986, would not affect such proceedings of acquisition.
Hence, simply because the judgment in Mathews' case was not brought to the notice of the Court in those proceedings, that would not change the fact that the petitioners contended right to the property was ousted in that civil suit, which obviously cannot been reopened by this Court.
Consequently, the property having been acquired in terms of Section 269F(6) of the Act, from Manak Chand Khanna in the year 1978, in my opinion the learned Additional District Judge has correctly held in the impugned order that it would only be the legal heirs of Manak Chand Khanna, who would be entitled to payment of compensation, upon them filing any application before that Court.
The petition dismissed.
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2018 (9) TMI 1922
CENVAT Credit - service tax amount indicated in the invoices issued by the sub-contractor - sub-rule (7) of Rule 4 of Cenvat Credit Rule, 2004 - CBEC Circular No. 122/3/2010-ST dated 30.04.2010 - denial on the ground that under the provisions of sub-rule (7) of Rule 4 of Cenvat Credit Rule, 2004, the assessee was only entitled to avail Cenvat Credit of the amount paid to the service provider i.e. the sub-contractor - HELD THAT:- An identical matter came up before the Tribunal for consideration in the case of Hindustan Zinc Limited [2018 (7) TMI 522 - CESTAT NEW DELHI]. Upon-examination of the statutory provisions read with the circular dated 30.04.2010 issued by the CBEC, the Tribunal has held that in case a part amount of value of service is retained from the bills of the service provider, the Cenvat Credit cannot be denied for the full amount of service tax claimed in the invoices.
There are no merits in the impugned order passed by the Learned Commissioner (Appeals) - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1921
Penalty u/s 271(1)(c) - concealment of income or furnishing any inaccurate particulars - HELD THAT:- In the case of MAK Data P. Ltd. vs. Commissioner of Income Tax-II [2013 (11) TMI 14 - SUPREME COURT] there was no explanation by the assessee for the concealed income and in absence of any explanation in respect of the surrendered income, the Apex Court has held that the law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. The voluntary disclosure does not release the assessee from the mischief of penal proceedings and dismissed the appeal of the assessee.
In the light of the law laid down by the Delhi High Court in the case of Suraj Bhan [2006 (4) TMI 107 - PUNJAB AND HARYANA HIGH COURT] has held that penalty levied is not justified because there was no concealment of income nor furnishing any inaccurate particulars thereof. The facts of the case in the case of MAK Data P. Ltd. (supra) is distinguishable and will not be applicable in the present facts and circumstances of the case.
On due consideration of the aforesaid, it cannot be said that learned ITAT has not appreciated the evidence of the AO and the order passed by the Appellate Authority. In the case in hand, the return was revised much prior to the date of issuance of notice under Section 153-C of the Act. The AO has no-where recorded his satisfaction to the fact that the assessee has concealed the particulars of income or furnished any inaccurate particulars of such income. Thus, we are of the view that there is no illegality in the order passed by the learned ITAT nor any substantial question of law is arising in this appeal.
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2018 (9) TMI 1920
Disallowance made u/s 14A of the Act - liquid mutual fund schemes - AO took the view that disallowance should be computed in accordance with Rule 8D of the I.T. Rules - HELD THAT:- A perusal of the investment portfolio of the assessee would show that the assessee has invested in four schemes of mutual funds, out of which two items have been brought forward from earlier years. During the year under consideration, the assessee has made new investments in only two schemes - Since investment activity of the assessee is limited, the Assessing Officer was not justified in invoking provisions of Rule 8D of the I.T. Rules without recording dissatisfaction on the methodology adopted by the assessee. Considering low level of investment activity, the disallowance of ₹ 2.19 lakhs made by the assessee u/s. 14A of the Act would meet the requirements of section 14A of the Act - Accordingly, the order passed by the learned CIT(A) is set aside and the AO directed to accept the disallowance made by the assessee.
Charging of interest u/s 234C of the Act - Learned AR submitted that there was error in the assessment order in computing interest u/s. 234C of the Act - HELD THAT:- There should not be any dispute that interest u/s. 234C of the Act has to be computed on the returned income as per mandate of section 234C of the Act, after duly considering the advance tax paid by the assessee. According to the Ld A.R, there is mistake in the computation of interest - this issue restored to the file of the Assessing Officer for examining the claim of the assessee by duly considering the returned income as well as advance tax paid by the assessee.
Appeal allowed.
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2018 (9) TMI 1919
Refund of excess paid excise duty - duty paying documents - doctrine of unjust enrichment - refund application filed by the respondent was rejected by the original authority on the ground that credit note cannot be accepted as conclusive evidence for claiming that excess duty had in fact been paid and incidence of such duty has not been passed on to any other person - HELD THAT:- The amount of refund in question, was reflected under the Head ‘Loans and Advances” with narration “Balance with statutory / government authorities”. Upon verification of the particulars reflected in the balance sheet and accounting records maintained by the respondent, the Chartered Accountant’s firm, by a certificate dated 31.08.2018, has given the breakup of the figure reflected in the balance sheet, which include of the amount in dispute, for which the respondent had filed the refund claim application.
The records submitted by the respondent clearly demonstrate that the incidence of duty has all along been borne by it and the same has not been passed on to its buyer or to any other person. Since the excess duty initially paid was adjusted by issuance of credit note, such practice adopted by the respondent is in conformity with the accounting principles.
The decision of this Tribunal relied upon by Revenue in the case of Addision & Co. [2002 (2) TMI 294 - CEGAT, CHENNAI] squarely covers the case of respondent inasmuch as it has been held that issuance of credit is also considered as the valid document for accounting adjustment.
Appeal dismissed - decided against Revenue.
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2018 (9) TMI 1918
Classification of service - security service or Supply of Cash Van Service - service of providing cash van to the bank for carrying cash from one place to another - Demand of Differential Duty alongwith interest and penalty - HELD THAT:- The issue is no more res-integra and decided in the case of SRI ARMAN KHAN, FEDERAL UNITED 7 PROTECTION GROUP, FORCE 7 SECURITIES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LUCKNOW [ 2018 (9) TMI 385 - CESTAT ALLAHABAD ], where it was held that providing of cash van service with security guard is covered under “cash van service‟ and cannot be termed as “security services‟ as the dominant service is transportation of cash from one place to another through these cash vans. Therefore, the appellants are not liable to pay differential Service Tax under the category of “security service‟.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1917
Maintainability of appeal - time limitation - HELD THAT:- The appeal has been filed within the time prescribed in law for seeking of appellate remedy against the order of the first appellate authority.
The appeal is admitted and Registry is directed to list the appeal for disposal in its turn.
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