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Showing 261 to 280 of 1764 Records
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2016 (11) TMI 1506
Offence under Sections 364, 364A/34 IPC r/w Sections 25/27/54/59 of the Arms Act - victim of kidnapping - realisation of ransom - Held that: - There is as such no mutually mutative inconsistency in the three renditions of his, so as to render the prosecution case untrustworthy and discardable on all counts. True, it is that the victim in his statements under Sections 161 and 164 Cr.P.C. did not specifically name Harpal Singh @ Chhota, while naming the other abductors who were the occupants as well of the Honda City car in the dickey of which he was abducted, he did identify and involve this appellant/accused during his testimony at the trial. Not only, in our comprehension, it is likely that in his bewildered and perplexed state of mind at the relevant point of time, he might have omitted to name Harpal Singh @ Chhota, in the face of the other overwhelming evidence and materials on record, nothing much turns thereon in favour of the defence.
The evidence of the victim (PW1) as a whole, in our estimate, is truthful, having regard to the details provided with accompanying clarity and conviction. His elaborate testimony not only has projected the stage-wise developments following his abduction till his release, the same has remained unshaken substantially even by his cross- examination. This witness not only had the opportunity of seeing his abductors but also had heard their exchanges by referring to their nick names. He was in their company and under their surveillance for almost two days in course whereof they not only interacted with him but also had closely followed his conversion with his father on more than one occasion on the aspect of ransom - Apart from the fact that there is nothing convincing on record to even infer any false implication of the accused persons, we are of the unhesitant opinion that the mere omission on the part of the victim to mention at the first instance the name of appellant Harpal Singh @ Chhota, having regard to the charge of conspiracy and the concerted steps, to actualise the same is of no fatal bearing on the prosecution case, more particularly he having named/identified him at the trial as one of the perpetrators of the offence. In this perspective, the omission on the part of the investigating agency to hold the TIP is not fatal, in the facts and circumstances of the case.
The above purported deficiencies do not at all detract from the veracity of the prosecution case.
The prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1505
Offence punishable under Sections 20(b) & (c) of the N.D.P.S. Act - Smuggling - charas - Held that: - So far facts of the present case is concerned, it is evident that search and seizure as alleged happens to be from public place, being Platform of Hajipur Railway Station, and on account thereof, there would be application of Section 43 of the Act.
Section 57 of the N.D.P.S. Act - Held that: - From the written report, it is evident that the informant along with Inspector, RPF, Akhilesh Singh (PW-2) led the raiding team, on account thereof, an intimation with regard to apprehension of culprits along with Charas would have been given immediately to superior officer by PW-2, which provision has not been satisfied. Thus from the consistent evidence of PW-2 himself along with informant PW-3, it is evident that they utterly failed to inform superior officer within 48 hours as prescribed under Section 57 of the N.D.P.S. Act.
PW-2 as well as PW-3 failed to discharge their due duty in complying with the directions issued under Circular No. 1/88, and on account thereof, the narration of recovery of Charas from a bag possessed by appellant Pratibha Devi become duly afflicted.
On account of non-compliance of the mandatory provisions of law, the prosecution case is found adequately dented. As a result of which, judgment of conviction and sentence dated 11.6.2014 and 16.6.2014, passed in Sonepur (Hajipur) Rail Police Station Case No. 1 of 2010/GR Case No. 11 of 2010, by Sri Brajendra Kumar Tewari, Special Judge, N.D.P.S. Act, Vaishali at Hajipur) would not survive.
Appeal allowed.
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2016 (11) TMI 1504
Disallowance of depreciation on plant and machinery belonging to the appellant company and installed at customers premises for the business of the assessee - Held that:- We vacate the consequential finding of the CIT(A) which had so emerged on the basis of his aforesaid misconceived and ill founded observations that the diagnostic machines installed by the assessee at the customers site under the reagent rental contracts were not from the assesses ‘Block of assets’, but formed part of the latters ‘Stock in trade’. We thus being of the view that the installation of the diagnostic machines owned by the assessee and forming part of its ‘Block of assets’ at the customers site, being a part of the business of the assessee, and rather as a matter of fact a modus operandi adopted by the assessee to boost its sales of reagents, therefore the latter being found to have duly satisfied the requisite conditions contemplated u/s 32(1) of the ‘Act’, is thus entitled to deprecation on the said diagnostic machines. We thus in light of our aforesaid observations set aside the order of the CIT(A) and allow the appeal of the assessee.
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2016 (11) TMI 1503
CENVAT credit - input - Manufacture - it appears that the respondent is manufacturing Hot Rolled Coils (HR Coils) inputs of which are being purchased from Tata Steel and the respondent is only carrying out process upon the said raw materials and is converting the said raw materials into HR Coils - Held that: - HR Coils, the goods which are prepared by the respondent, is not an exempted goods at all as per definition given under Rule 2(d) of the Cenvat Credit Rules, 2004. Hence, there is no applicability of Rule 6(1) of the Cenvat Credit Rules, 2004, whatsoever arises - Moreover, it appears that the preparation of the HR Coils by the respondent is not manufacturing of goods at all, because, it is simply cutting, slitting and strengthening of HR Coils purchased from Tata Steel.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1502
Modification in order seeked - applicants states that inadvertently they failed to inform this Court that the transferee company has 28 equity shareholders and not 27 equity shareholders, as averred in the first motion petition - Held that:- The requisite No Objection Certificate on behalf of the said equity shareholder, namely, ICICI Prudential Asset Management Company Limited is annexed to the present application.
In view of the foregoing, the present application is allowed. Paragraph 20 of the order dated 26.09.2016 shall now be read as under:-
“20. That the Transferee Company has 28 equity shareholders. All the equity shareholders have given their consents/no objections in writing to the proposed Scheme. Their consents/no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the equity shareholders of the Transferee Company to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.”
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2016 (11) TMI 1501
Addition of transfer of lease hold rights in the property under section 50C - capital gain computation - Held that:- Issue under consideration is covered by the number of decisions of ITAT-Mumbai Bench in case of Atul G.Puranik [2011 (5) TMI 576 - ITAT, Mumbai] and Pradeep Steel Re-Rolling Mills (P) Ltd., (2011 (7) TMI 1101 - ITAT MUMBAI) wherein it was held that Section 50C applies only to capital assets being land or building or both, it does not in terms include leasehold rights in land or building within its scope.
Allowing set off loss against “income from other sources” - AO’s initiated in allowing set of off loss against long term capital gains - Held that:- As per the provisions of Section 71(2), assessee is entitled to set off current year business loss against “income from other sources” since assessee was also having long term capital gains. Accordingly, we do not find any infirmity in the order of CIT(A) for allowing set off of loss in the very same year against income from other sources, so that assessee can enjoy special rate of 10% tax on long term capital gains, in terms of CBDT circular No.26 (LXXVI-3) (F.No.4(53)-IT/54).
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2016 (11) TMI 1500
Gain from the sale of agricultural land - addition as adventure in the nature of trade - Held that:- We find that the land in question was never treated as a stock in trade and it was treated as capital asset in the books of account of the assessee. We find that there was no systematic or repetitive buying or selling of land which could indicate an adventure in the nature of trade. we noticed that the assessee has not obtained any permission for conversion of said agricultural land to non-agricultural land and he has sold the same agricultural land to the persons who was also an agriculturalist. The assessing officer has not disproved the facts that said agricultural land was shown as a fixed asset in books of account of the assessee and agricultural operation were carried out by the assessee.
The assessing officer has also not disproved the fact that 7/12 and 8A of agricultural land reflects that the crops were taken on the said agricultural land. Considering the above stated facts and legal findings we observed that the assessing officer has not proved with relevant supporting evidences that the sale of agricultural land was an adventure in the nature of trade, therefore, we are not inclined to uphold the order of the Ld.CIT(A). - Decided in favour of assessee.
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2016 (11) TMI 1499
Allowability of deduction u/s 10A - Held that:- AO is directed to allow 10A deductions in respect of the export business without setting of the loss from the non export business.
TPA - rejecting the foreign company as the tested party - Held that:- Having perused the relevant documents in order to verify as to whether the assessee has provided the necessary relevant information about the tested party and also the comparables to the tax administration to verify the same, we have verified the T.P. documentation filed by the assessee. We are satisfied that all the necessary information about the tested party and also the foreign comparables adopted by the assessee have not been provided by the assessee before the AO or the TPO to verify the same and for arriving at the ALP. Therefore, we are satisfied that the assessee has not done a proper TP study and therefore, the TPO has rightly rejected the foreign company as a tested party and the foreign comparables for arriving at the ALP
Selection of comparable criteria - Held that:- Assessee is into the software development and providing call centre services exclusively to its AE, thus companies functionally dissimilar with that of assessee need to be deselctded from final list.
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2016 (11) TMI 1498
Revision u/s 263 - genuineness of the gift proved - Held that:- No reason to entertain this Special Leave Petition which is, accordingly, dismissed. HC order confirmed [2016 (6) TMI 1004 - BOMBAY HIGH COURt] wherein held the satisfaction of the Assessing Officer on the basis of the documents produced is not shown to be erroneous in the absence of making a further enquiry. It is made clear that our above observations should not be inferred to mean that it is open to the Assessing Officer to enquire into the source of source for the purpose of the present facts. This is a case where a view has been taken by the Assessing Officer on enquiry. Even if this view, in the opinion of the CIT is not correct, it would not permit him to exercise power under Section 263 of the Act - Decided in favour of assessee
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2016 (11) TMI 1497
Taxability in India - income from Off-shore supplies - Held that:- Assessee's income from Off-shore supplies would not be chargeable to tax in India. See Commissioner of Income Tax Ghaziabad & Another Versus M/s Global Thermo Electric Inc. [2016 (11) TMI 1496 - ALLAHABAD HIGH COURT].
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2016 (11) TMI 1496
Taxability in India - Non applicability of Section 44BB on sale of Off-shore supply of equipments by ITAT - also holding that 20% of profits on sale of Off-shore supply of equipments should be treated to have accrued in India and profit in this respect should be determined on the basis of Global Profit Ratio - Held that:- The Tribunal has arrived at the above decision, which has been confirmed by Hon'ble Apex Court in the case of Ishikawajma-Harima Heavy Industries Ltd. vs. Director of Income Tax, Mumbai (2007 (1) TMI 91 - SUPREME COURT) and has come to the conclusion that the assessee was having a divisible contract and for the manufacturing part it was not liable to pay any taxes in India as there was no element of sale at all in India. On facts it has not been recorded anywhere on the record that the situs of sale of the manufactured items took place in India. The entire equipment required by the Gas and Oil Company was completely manufactured outside India and it is only the installation of the equipment and the commission of the equipment, which took place in India. Accordingly, the assessee became taxable for the commissioning but not for the purchase of the equipment, which was done outside India. - Decided in favour of assessee.
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2016 (11) TMI 1495
Assessment order passed u/s 158BC/143(3) - period of limitation - Held that:- It will not be out of place to mention that the search proceeding under section 132(3) was continued up to August 16, 1997, however by subsequent restraint order where only for the purpose of seizure, no further search material was found and specifically panchnama was drawn. In that view of the matter, relying on the decision of the Madras High Court in the case of A. Rakesh Kumar Jain v. Joint CIT reported in [2012 (12) TMI 164 - MADRAS HIGH COURT] and decision of the Delhi High Court in B. K. Nowlakha v. UOI reported in [1991 (8) TMI 78 - DELHI High Court] we are of the opinion that the search has commenced on May 16, 1997, no further search was conducted therefore limitation was started on August 31, 1997. - Decided in favour of the assessee and against the Department.
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2016 (11) TMI 1494
Default for non-prosecution - Held that:- Perusal of the record reveals that the notices for service of respondent company had not been submitted for endorsement on behalf of the petitioner, in terms of the order of this Court dated 26th February, 2016.
It seems that the petitioner is no longer keen to prosecute the present petition and the same is dismissed in default and for non-prosecution
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2016 (11) TMI 1493
Penalty - irregularly availed CENVAT credit later reversed - extended period of limitation - Held that: - The period is prior to 7-7-2009 and the appellants cannot be saddled with the intention to evade payment of duty for this period for the credit availed on MS items used in construction of sheds, etc. - invocation of extended period is unsustainable and the demand is time barred - No penalty can be imposed - appeal dismissed - decided against appellant.
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2016 (11) TMI 1492
Valuation - rejection of declared value - Held that: - the first appellate authority has not completely examined the provisions of the Customs Valuation Rules, more specifically Rule 4(2) and the interpretative rules thereto which clearly indicates that the value of the imported goods shall not include the cost of after importation activities and the activities relatable to marketing of imported goods - Since the first appellate authority has overlooked these provisions, in the interest of justice, we deem it fit to remand the matter back to the first appellate authority to reconsider the issue afresh - appeal allowed by way of remand.
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2016 (11) TMI 1491
Unaccounted goods - the appellant has not incorporated the up-to-date production particulars in the daily stock register - Held that: - It is an admitted fact on record that the appellant had not maintained the daily stock account, incorporating the particulars of goods manufactured in the factory on the date of visit of the Central Excise Officers. Thus, there is violation of Rule 10 of the Central Excise Rules, 2002, for which goods can be confiscated and penalty can be imposed under Rule 25 ibid - considering the fact that the seized goods were lying in the factory and were not removed clandestinely by the appellant, the quantum of redemption fine and penalty imposed by the authorities below are in the higher side, and is therefore reduced - appeal allowed in part.
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2016 (11) TMI 1490
Confiscation - redemption fine - penalty - Held that: - the provisions of Section 111(d) were neither invoked before the original proceedings nor were adopted by the Original Adjudicating Authority. The scope of the appeal before the Commissioner (Appeals) was limited to the extent of adjudging the applicability of Section 111(m), which was adopted by the Original Adjudicating Authority for confiscating the goods - the Commissioner (Appeals) has travelled beyond the proceedings and had made out altogether a new case, which was never the subject matter before the Original Adjudicating Authority - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1489
Penalty u/r 26 of the CER, 2002 - imposition of penalty on the ground that the appellant being a regular transporter and himself prepared consignment note for delivery of the goods at Muradabad and consequently the said goods were delivered at Surat - Held that: - Provisions of Rule 26 of CER, would get attracted only if any person who acquires possession of, or is in anyway concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excise goods, which he knows or has reason to believe are liable to confiscation under the Rules - In the case in hand it is on record that appellant is being a transporter, documents like Excise invoice were available with him - penalty not sustainable - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1488
Shortage and excesses of stock - confiscation - penalty - Held that: - there are marks of manipulation in the said statement where “estimated” word is struck off at several places, as a result it appears to me that all the figures given by Mr. Sinha were estimated figures and by eliminating word “estimated” the authorities issued show cause notice treated them as physically verified weighment of the raw materials and finished goods and on such presumptions the SCN was issued, therefore, the SCN is not sustainable - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1487
Condonation of delay - CENVAT Credit - whether circular is binding upon the revenue - service tax on GTA service availed by the appellant for outward transportation of the goods from the factory to the customer - the decision in the case of The Commissioner of Central Excise Service Tax Bengaluru-IV, Versus Ultra Tech Cement Ltd. [2016 (7) TMI 1080 - KARNATAKA HIGH COURT], where it was held that no substantial questions of law would arise since the availment of CENVAT credit is expressly made so permissible by the circular issued by the competent authority and the appellate authority having found that all conditions of the circular were satisfied - Held that: - delay condoned - leave granted.
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