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Showing 281 to 300 of 1404 Records
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2016 (10) TMI 1124
TDS u/s 194C OR 194J - tds liability on transmission and wheeling charges paid by the petitioner to the other state owned company named RRVPNL and other non-government Companies - Held that:- No liability to deduction tds required. See Commissioner of Income Tax Vs. Bharti Cellular Ltd. (2010 (8) TMI 332 - Supreme Court of India ), Commissioner of Income Tax Vs Bharti Cellular Ltd (2008 (10) TMI 321 - DELHI HIGH COURT ) wherein decided providing assistance or aid, services not involving human interface, hence services are not technical services as contemplated under Explanation 2 to section 9(1)(vii) - interconnect charges/port access charges cannot be regarded as fees for technical services, hence not liable for tax deduction at source - Decided against revenue
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2016 (10) TMI 1123
TDS u/s 194J or 194C - payment made by the assessee in form of transmission/ wheeling/ SLDC charges - Held that:- The issues are required to be answered in favour of the assessee against the department. See Commissioner of Income Tax Vs. Bharti Cellular Ltd. (2010 (8) TMI 332 - Supreme Court of India ), Commissioner of Income Tax Vs Bharti Cellular Ltd (2008 (10) TMI 321 - DELHI HIGH COURT ) wherein decided providing assistance or aid, services not involving human interface, hence services are not technical services as contemplated under Explanation 2 to section 9(1)(vii) - interconnect charges/port access charges cannot be regarded as fees for technical services, hence not liable for tax deduction at source - Decided against revenue
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2016 (10) TMI 1122
Penalty u/s 78 - security service - appellant deposited the entire amount of tax as demanded along with interest and penalty @25% of the tax - Held that: - section 78 would be invoked in the case of suppression of facts with intent to evade payment of tax etc.. In the present case, the appellant is not disputing the demand of tax along with interest, which they have already deposited - The main contention of the appellant is that they are a small partnership firm and there was a bona fide belief that no tax is leviable thereon.
The Adjudicating Authority have not invoked section 78 in respect of demand of Service Tax of ₹ 10,19,908/- and therefore he cannot impose penalty for the balance amount under section 78 of the Act. In any event, both the authorities below had not disputed the bona fide belief of the appellant. So, it is a fit case to invoke section 80 to waive the penalty imposed under section 78 of the Act.
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1121
MODVAT/CENVAT credit - irregular availment - cross utilization of MODVAT against duty paid invoices - Held that: - The finding in the impugned order the credit of ₹ 88,182/- is purported on the basis of invalid document appears to be unfounded. There is no dispute against procurement of materials against duty paying invoice No.21538 dated 28.04.1996 which needs to be verified as a valid document.
Matter is remanded to the adjudicating authority for verification of the records and to pass order in accordance with law - appeal allowed by way of remand.
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2016 (10) TMI 1120
Validity of Ex-parte stay order - Held that: - Perusal of the records shows that they have not complied with the directions of the Tribunal regarding deposit of 50% of the duty confirmed and also 50% of the penalty imposed on the appellant. Instead of complying with the directions of the Tribunal, they have simply moved an application for setting aside the ex parte decision - In view of non-compliance of the Stay Order, all the appeals are dismissed.
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2016 (10) TMI 1119
Claim of deduction / exemption u/s. 54 - requirement to invest in a bank account under the capital gain account scheme - Held that:- During the year the assessee has made payment of ₹ 1527000/- to the builder namely Ajay Enterprises Pvt. Ltd from whom the "new house" was purchased. Out of this amount of ₹ 1527000/- the builder has appropriated ₹ 950000/- toward another flat No. C-408 booked by the assessee with the builder. It should not be reason for making disallowance/addition. The fact of the matter is that the assessee has invested a total sum of ₹ 6174683/- in the eligible new house (A-907) upto 04/12/2008 i.e. well within the period specified under section 54 of Income Tax Act, 1961. The assessee being an old man of around 76 years could not keep track of the adjustment made by the builder. However, he made the substantive compliance of section 54 by making the required investment in the new house within the period specified u/s 54 of Income Tax Act, 1961.
The requirement to invest in a bank account under the capital gain account scheme is a procedural requirement to ensure that investment is made in a residential house as claimed in the return of income. Merely because of technical breach / non-compliance the benefit due to the assessee by the legislature cannot be denied particularly when there is substantive compliance made. Section 54 is a beneficial section and as held by Hon'ble Apex Court in the case of Bajaj Tempo Ltd. vs CIT (1992 (4) TMI 4 - SUPREME Court) the provisions of a beneficial section should be construed liberally. - Decided in favour of assessee.
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2016 (10) TMI 1118
Reimbursement of additional duty of Customs - Held that: - Law being that payment of VAT is reimbursable if that is paid, in absence of evidence to show that it is paid, there shall no reimbursement of additional duty of Customs at all. If reimbursement is paid that shall run counter to law - appeal dismissed.
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2016 (10) TMI 1117
Penalty u/s 271(1)(c) - revision downwards could not be justified - Held that:- This court notices that the circumstances of the case are peculiar in that the assessee provides the income downwards after receipt of scrutiny notice. It also offered an explanation as to the unavailability of material to substantiate the revision which according to it was on account of over statement of net income. Ordinarily, the assessee’s upon receipt of scrutiny of the revised revision, the returns upwards in which case the revenue could be justified in assuming that an attempt to conceal the material fact was made. In the present case, the inability of the assessee to substantiate its downward revision- for which the explanation offered was the absence of books on account on cessation of its business operations was deemed not satisfactory.
We only concur with the ITAT opinion that CIT(A)’s finding that the assessee is guilty of furnishing inaccurate particulars of income is inappropriate as the Assessing Officer at any point of time has not scrutinized 2003-2004 of the assessment on records and issued any notice before the filing of revised return. Thus, when the error was known to the assessee, the assessee itself has filed the revised return. This act shows that it is not intentional furnishing of inaccurate particulars of income on behalf of the assessee. - Decided against revenue
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2016 (10) TMI 1116
Demand of Interest - Section 28 of the Customs Act, 1962 - penalty - decision in the case of ESCORTS HEART INSTITUTES & RESEARCH CENTRE [2016 (4) TMI 440 - CESTAT NEW DELHI] referred - Held that: - the issue is fairly covered by the judgment of this Court in CC (I&G) v. Care Foundation [2014 (3) TMI 641 - DELHI HIGH COURT], where it was held that no exception can be taken to the finding that since there was no demand under section 28(8) of the Customs Act for duty, no penalty could have been imposed under that provision and consequently the penalty under section 114A was not sustainable - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1115
Treating incentive received on pre-payment of deferred sales tax liability as income for A.Y. 2005-06 and not for A.Y. 2008-09 - Held that:- For the year under consideration, as against the deferred sales tax liability of ₹ 90,692,932, the assessee has paid its NPV amounting to ₹ 65,810,057 resulting in difference of ₹ 24,882,876 which has been treated as capital receipt and not offered to tax. Further, it is noted that the pre-payment of deferred sales tax liability for the all the years together (including the impunged assessment year) has been made in the AY 2005-06 wherein the Coordinate Bench has deleted the addition of ₹ 12,06,33,254/- (which includes the amount of 24,882,876) as provisions of section 41(1) were held not applicable. By respectfully following the order of the Coordinate Bench in assessee’s own case for the A.Y. 2005-06 and 2007-08, we uphold the order of the ld. CIT(A) for the impunged assessment year. Accordingly, this ground of the Revenue’s appeal is dismissed.
Club expenses paid by assessee for membership of its employees - Held that:- In assessee’s own case for the A.Y. 2005-06 held the assessee has given the name of the employees, date, amount, name of the club, nature of payment and period. The club membership has been paid in respect of 28 employees. It is noticed from the period mentioned in the chart that payments are annual subscription or subscription for part of the year. It is not a case where the assessee has paid corporate fee to the club. There is no payment for the period exceeding one year so that the benefit may be given to the employees for more than a year. The expenditure as club membership fee is an expenditure for the purpose of the business. Hence, the expenditure is allowable u/s 37
Holding the donation made by the assessee to DAV Trust was expenditure incurred wholly and exclusively for the purpose of business of the assessee - Held that:- In assessee’s own case for the A.Y. 2006-07 Voluntary payments made by an employer for the general welfare and benefit of the employees on grounds of commercial expediency are revenue expenditure, deductible under section 37 of the Income- tax Act. Such expenditure has nexus with the conduct of business and the expenditure incurred for maintaining industrial peace and cordial relations with the employees is an expenditure for the carrying on of the business. In this view of the matter, in the facts of this case, where there is no dispute about the bonafides in creation of the trusts or utilisation of the funds contributed by the assessee to the trusts, we have no hesitation in holding that the expenditure incurred by the assessee by way of contribution to the welfare trust of the employees was rightly held to be deductible under section 37
Depreciation disallowed on catalyst allowed
Disallowance with regard to leave encashment, water cess, bonus, gratuity etc. on which deduction U/s 43B - Held that:- CIT(A) has given a finding that “he has gone through the details filed by assessee and it was seen that assessee has made provisions in earlier years which were not claimed as expenditure in view of section 43B. The same was claimed in the current year on payment basis and the details were given in tax audit report also. The assessee also filed reconciliation of the amount paid by the assessee. When the details were certified by Tax Auditor, the same should have been believed by A.O. The A.O. without pointing out any defect simply brushed aside the claim of assessee. It was seen that assessee did not claim these expenditure and made payment of part of the expenditure in the current year and also written back part of the expenditure as discussed in Ground No. 7.” The said findings of the ld CIT(A) remain uncontroverted before us. The ld CIT(A) has carried out the necessary verification of the assessee’s claim which is also certified by the Tax Auditor. We therefore do not find any infirmity in the order of ld CIT(A) and accordingly uphold the said order. Accordingly, this ground of the Revenue’s appeal is dismissed
Allowing rent paid for flat to a person specified U/s 40A(2)(b) - Held that:- CIT(A) has given a finding that the employees of the assessee company stayed at the guest house in respect of which an amount of ₹ 10,80,000 has been paid as rent. Further, the Revenue has not brought on record any material evidence to suggest that the rent paid was excessive vis-à-vis an accommodation of same size and facility in the same locality. We therefore confirm the order of the ld CIT(A) who has allowed the rent payment as incurred for the purposes of the assessee’s business. Accordingly, this ground of the Revenue’s appeal is dismissed.
Deleting the expenses for payment made to Zuari Investment Ltd - Held that:- For the purposes of invocation of section 35D, two conditions are prescribed. Firstly, the nature of expenditure should be as specified in section 35(2) and secondly, the expenditure should be incurred either before the commencement of the business, or where the business has been commenced, in connection with the extension of the undertaking or in connection with the set up of a new unit. Nothing has been brought on record to satisfy the above two conditions. Further, the Revenue has taken the ground that these expenses are with respect to the shipping division whose income was offered on the basis of Tonnage Scheme. However, there is nothing on record and which has been brought to our notice which suggest that these expenses are with respect to the Shipping Business subject to Tonnage tax scheme. In light of these, we are unable to accede to the position of the Revenue that the expenses are covered by the provisions of section 35D of the Act
Addition on slump sale of Food Processing Unit U/s 50B in spite of the fact that the assessee has failed to prove the sale consideration while purchaser has intimated the sale consideration - Held that:- We confirm the finding of ld CIT(A) that “as per the provisions of section 50B deduction for all other assets has to be allowed as per book value” and direct the AO to allow ₹ 10,44,19,543 as cost of acquisition while working out the capital gains in the hands of the assessee.
Disallowance of amount claimed u/s 80IA in respect of Captive Power Plant Industrial Undertaking - Firstly, as regards the eligibility to claim of deduction under section 80IA in respect of the Captive Power plant, the same is covered in favour of the assessee by the earlier orders of the Coordinate Bench including that of AY 2007-08.
What is relevant to determine is the treatment of steam worth ₹ 18,51,26,755/- and how the same has been accounted for while computing the deduction under section 80IA. Secondly, the assessee has identified both direct and indirect expenses which have been allocated to Captive power plant following certain allocation methodology which has been accepted by the Revenue. Following the same methodology, the expenses in relation to generation of steam needs to be identified and properly accounted for. The ld CIT(A) has not given any basis as to how he has determined 15% an appropriate basis. Similar is the case where the ld CIT(A) has held that the cost of gas consumption has been understated by ₹ 20,83,589/- In our view, the matter require a fresh examination and we accordingly set aside these two matters to the file of the AO.
It is provided that the said amendment has been brought on the statue books with effect from 1st April, 2009 and will accordingly apply to all cases where the proceedings are pending before any authority on or after such date. Unlike other amendments such as amendment by way of insertion of section 80A(4) and section 80A(5) which has been made effective from the 1st April, 2003, and will accordingly apply in relation to assessment year 2003-04 and subsequent years, the amendment by way of insertion of sub-section 6 to section 80A has been made effective from 1st April, 2009 and it will apply to all cases where the proceedings are pending before any authority on or after such date. In the instant case, the return of income was originally filed on 30.09.2008, notice u/s 143(2) was issued on 3.9.2009, assessment order was thereafter passed on 31.12.2010 and subsequently, the order of the ld CIT(A) was passed on 30.03.2012. Accordingly, the proceedings for the impunged assessment year were pending before the Assessing officer and the provisions of section 80 A(6) will apply in the instant case.
As we have stated above, the authorities below have not examined the matter after taking into consideration the provisions of section 80A(6) of the Act. In the interest of justice and fair play, we deem it appropriate to refer the matter back to the file of the AO to examine the matter a fresh taking into consideration the above discussions.
Notional interest in respect of investment in subsidiary companies without providing any nexus between investments and loans - CIT(A) has given a finding that “the assessee claimed that these investments were made out of surplus funds available with the assessee, however, no supporting evidence was furnished. “ The onus to establish that the investments are made out of surplus funds and not borrowed funds is on the assessee and the same has not been discharged in the instant case. We accordingly set-aside the matter to the file of the AO to examine the matter afresh. Accordingly, this ground of appeal of assessee is allowed for statistical purposes.
Addition u/s 40(a)(ii) - not allowing the expenditure of education cess from income claimed by the appellant - Held that:- The instances are amounts paid as wealth-tax, securities transaction tax and fringe benefit tax in section 40 of the IT Act. Had there been any intention of disallowing education cess, such provision would have been specifically been enacted which has not been done. We have given a careful consideration to the aforesaid contention of the ld AR but we are afraid we are unable to accede to the same. As we have already held above, the basis character of education cess as intended by the legislature is tax which is levied on the profits or gains of the business and given that such tax has already been provided in section 40(a)(ii) as not an allowable deduction, there was nothing more that was required or expected from the legislature. The levy of wealth tax, securities transaction tax and fringe benefit tax are not on the profits or gains of business or profession, hence, there was a necessity felt by the legislature and which was specifically provided for. CIT(A) has rightly disallowed the claim of education cess as an allowable deduction under section 40(a)(ii).
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2016 (10) TMI 1114
Assessment u/s 153A - addition to income - proof of incriminating material found during the course of search - Held that:- The instant additions made by the AO for these three years, which are admittedly not based on any incriminating material found during the course of search, cannot be sustained. The ld. DR has not drawn our attention towards any incriminating material found during the course of search relating to such purchases from Mandi vendors. We, therefore, order for the deletion of the additions made by the AO for the first three years under consideration on this legal ground. See Kabul Chawla case [2015 (9) TMI 80 - DELHI HIGH COURT ]
Addition on account of gross profit rate - Held that:- When the books and the relevant vouchers/bills were not produced before the AO, it was, but, natural to make the assessment on the basis of some estimate. As against the AO disallowing all the purchases, we find that the ld. CIT(A) was justified in approving the application of GP rate of 15% on the declared sales to cover the leakage of profit on the possibility of unverified purchases. The impugned order is, therefore, upheld on this issue and both the grounds are dismissed.
Addition on account of unexplained investment u/s 69 - Held that:- AO has himself recorded in the assessment order that the assessee proved that all the purchase transactions recorded on these loose papers were duly entered into the books of account of the assessee. When the position is so, we fail to appreciate as to how any addition on account of unexplained investment can be made u/s 69 of the Act, which presupposes the making of investment without recording the same in the books of account. In that view of the matter, there remains no rationale or logic in making any addition u/s 69 of the Act for the transactions recorded in the books of account. It is further seen that the ld. CIT(A) has sustained the addition to the extent of ₹ 74,186/- as there was some difference in the amounts appearing on different dates which was duly accepted by the assessee. We, ergo, uphold the confirmation of the addition to the extent of ₹ 74,186/- and the deletion of the remaining addition.
The other half of each loose paper found during the course of search represents sales made by the assessee for which the respective amounts were not recorded. This is certainly a lacuna, which shows that the sales aspect of the recording in the books of account was not properly verifiable. While dealing with ground no. 1 of the assessee’s appeal and ground no. 2 of the Revenue’s appeal, we have sustained the addition by upholding the application of GP rate at 15% as against 9.27% declared by the assessee. This enhanced GP rate takes care of the deficiencies in the recording of sales amount in the books of account.
Addition on account of unproved liabilities - Held that:- When the trade creditors were appearing in the books, it was obligatory on the part of the assessee to prove their genuineness by furnishing necessary invoices and also producing them, if required by the AO. Here is a case in which apart from filing confirmation from the third party, the assessee has not even furnished invoices, what to talk of proving the genuineness of these creditors. As such, the ld. CIT(A) cannot be held as justified in deleting this addition. In our considered opinion, the ends of justice would meet adequately if the impugned order on this issue is set aside and the matter is restored to the file of the AO
Unexplained cash deposits in the bank account - CIT-A allowed claim - Held that:- It is indisputably noticed that such deposits of ₹ 40,19,500/- made by the assessee in the regular bank accounts emanated from the regular books of account. As against the cash deposit of ₹ 40.19 lakhs, the assessee’s turnover for the year stands at ₹ 3.25 crore. We fail to comprehend the view point canvassed by the AO in making the addition for the transactions which were duly recorded by the assessee in its books of account. When we consider the totality of facts and circumstances, being, the turnover of the assessee for the year at ₹ 3.25 crore and the deposit of cash in bank amounting only to ₹ 40.19 lakh, the natural inference that can be drawn is that the deposits in bank were made out of the cash sales. We, therefore, approve the view taken by the ld. CIT(A) in overturning the assessment order on this issue.
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2016 (10) TMI 1113
Violation of sections 276C(2) and 277 - making false statements - error committed by the clerk of the chartered accountant - contention of the petitioner is that the tax amount is less than ₹ 25,000 and therefore an attempt to evade tax is covered by the circular - Held that:- Whether the amount involved is less than ₹ 25,000 or less is irrelevant. Section 277 deals with making a false declaration. Further, the allegation is that the document has been tampered with by showing that he has paid the tax correctly. Whether the amount is covered by the circular or not becomes an irrelevant fact. The allegation that he has made a false statement to the Department is admitted. The contention is that it comes within the monetary limit.
Unable to accept such a contention. The allegation is with regard to filing of a false declaration. Therefore, the provisions of law stand applicable and circular prescribing a monetary limit therefore would not be applicable to the case on hand. The question of evading the tax and the consequential monetary limit in launching the prosecution is an alien consideration. It is not a case of evading the tax. It is a case of furnishing of false declaration while submitting the return. Submission of a false declaration is quite different from evading the tax. The circular would therefore be applicable in case of evasion of tax. Under no grounds the circular could be read with regard to filing of a false declaration. Since the case pertains to a false declaration, the circular cannot come to the aid of the petitioners. Hence, find no good ground to entertain the petition.
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2016 (10) TMI 1112
Reopening of assessment - period of limitation - Held that:- Held that:- The parliament itself has provided in Section 153(2) of the Act a period of limitation within which the Assessing Officer must pass an order on the notice of reopening i.e. within one year from the end of the financial year in which the notice was issued. In fact, Section 153 (2A) of the Act as in force at the relevant time itself provides that an order of fresh Assessment, consequent to the order of Tribunal under Section 254 of the Act, would have to be passed within one year from the end of the financial year in which the order under Section 254 of the Act, was passed by the Tribunal and received by the Commissioner of Income Tax.
The Director of the appellant has filed an affidavit dated 19th September, 2006. In the affidavit, it is stated that consequent to the impugned order of the Tribunal dated 14th August, 2013, the Assessing Officer has not passed any order of reassessment. Time was granted on the last occasion to enable the Respondent to respond to the affidavit dated 19th September, 2006 of the Director of the Appellant-Company. The Respondent is unable to dispute the facts stated in the affidavit dated 19th September, 2016 filed by the Director of the Appellant-Company. The time to pass a order on the notice dated 28th March, 2008, even consequent to the impugned order of the Tribunal, has lapsed. Decided in favour of the Appellant-Assessee
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2016 (10) TMI 1111
Deduction u/s 80IA(4) - allowability to the assessee for generation of power for captive consumption? - eligibility criteria - Held that:- As decided in SHAH ALLOYS LIMITED case [2011 (11) TMI 762 - GUJARAT HIGH COURT] under similar circumstance under subSection( 8) of Section 80IA of the Act, if it is found that where any goods or services held for the purposes of the eligible business are transferred to any other business carried on by the assessee or where any goods or services held for the purposes of any other business carried on by the assessee are transferred to the eligible business and in either case the consideration for such transfer does not correspond to the market value of such goods as on the date of the transfer, then for the purposes of deduction under Section 80IA in case of the eligible business as if the transfer had been made at the market value of such goods or services. It is in this context that the question of substituting the actual consideration by the market value comes into picture.
We may notice that the Tribunal did not accept the contention of the assessee that the electricity is neither goods nor services and that, transfer of electricity, therefore, would not be covered under subSection (8) of Section 80IA of the Act. However, in so far as the Tribunal's reasoning to adopt the market value of the goods at ₹ 5.40 ps. per unit is concerned, we find no error. - Decided against revenue
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2016 (10) TMI 1110
Allowability of loss - Tribunal allowing the loss as business loss being related to forward contracts which are integral or incidental to the export of diamonds arising from cancellation of matured contracts - assessee does not deal in foreign exchange and is a diamond merchant - Held that:- The issue arising herein stands concluded against the Revenue and in favour of the respondent assessee by the decision of this Court in Commissioner of Income Tax Vs. M/s. D. Chetan & Co. (2016 (10) TMI 629 - BOMBAY HIGH COURT ) held Tribunal was justified in deleting the addition of 'Mark to Market' Loss made by the Assessing Officer on account of disallowance of loss on foreign exchange forward contract loss. - Decided in favour of assessee
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2016 (10) TMI 1109
Reopening of assessment - no proper reasons recorded - information received from the Directorate of Income Tax (Investigation)-I, New Delhi - non independent application of mind by AO - Held that:- We are of the view that AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation)-I, New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed.- Decided in favor of the Assessee
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2016 (10) TMI 1108
Scheme of Arrangement involving transfer of “Windmill Division” by way of reconstruction in nature of 'Slump Sale' - Held that:- All the Equity Shareholders of the applicant Company as on date, being the holding Company and its nominee, have approved the scheme in form of written consent letters. All these consent letters are annexed with the application as Exhibit' D'. There are no Secured Creditors of the applicant Company. The certificates confirming the status of the Equity Shareholders as well as the receipt of consent letters from all of them and status of Secured Creditors of the Company are annexed collectively as Exhibit' E'. In view of the same, the dispensation is sought from convening the meetings of the Equity Shareholders of the applicant Company and considering the facts and circumstances and the submissions, the same is hereby granted.
The amalgamating Transferor Company is a profit making Company with substantially high positive net worth. The Transferee Company shall continue its operations and shall fulfill all its liabilities towards Unsecured Creditors in normal course of business. In view of the same, the approval of the Unsecured Creditors of the Transferee Company is not necessary and hence not obtained. The application is hereby disposed of.
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2016 (10) TMI 1107
Allegations of oppression and mismanagement - Petitioners locus standi to file a petition - period of limitation - Held that:- The cause of action, if any, arose to the petitioners on 30.9.2012 and the instant petition having been filed on 25.7.2016 is clearly beyond the period of three years provided by Article 113of the Limitation Act as noticed above. We suggested to the learned counsel that the petition is liable to be dismissed on that count.
A perusal of e-mail dated 3.6.2014, 20.7.2014 and 24.7.2014 did not reveal any acknowledgment of the relief claimed by the petitioners. It only refers to the working out of account on the shareholding as per the request made by one Subodh. The other email also did not reflect on any acknowledgment nor any such email could be pointed out by the petitioner. We deem it appropriate to make a reference to the email of December 2014 and 2015 which talks of grant of amnesty and filing of the Company Petition. There is no mention of any acknowledgement in terms of Sec. 18 of the Limitation Act, either before the expiry of the period of three years which commenced from 30.9.2012 and expired on 29.9.2015 or thereafter. Moreover, acknowledgment has to be made to those who have some interest in Respondent No. 1 company. The petitioners have never been director or shareholder in Respondent No. 1 company. The question of acknowledgment does not even arise. There is a serious doubt whether the petitioners have any locus standi to file such a petition. Therefore, we are satisfied that this petition is liable to be dismissed without grant of any benefit of Section 18 of the Limitation Act and for lack of locus standi on the part of the petitioners.
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2016 (10) TMI 1106
Crowd of unlawful assembly commits an offence - conviction and sentence under Section 302/149 of the IPC - Held that:- Offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly, arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants
All the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concerned (A2 has already died) all the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302/149 of the IPC has to be upheld.
For the above reasons, this appeal is partly allowed to the extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody, if not required in any other case. Appeal of other appellants is dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale and Krishna Sakharam Koyale) will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month, they will continue to remain on bail thereafter till the decision of the said application by the appropriate authority. If their application for remission is not accepted, they will surrender to serve out the remaining sentence.
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2016 (10) TMI 1105
Setoff of business loss denied - non filing of any loss in return of income - Held that:- Sub-section 1 of Section 71 contemplates that where the net result of computation made for any assessment year in respect of any head of income, is a loss, the same can be set off against the income from other heads. Similarly, in the case of K.R. Automobiles (2014 (2) TMI 1309 - ITAT AHMEDABAD) the Tribunal has allowed set off income against the loss. The Tribunal has placed reliance upon the decision in the case of CIT Vs. Shilpa Dyeing & Printing Mills P. Ltd., (2015 (7) TMI 691 - GUJARAT HIGH COURT ).
As far as proposition of law is concerned, there is no dispute with regard to them. But in the present case, the assessee has not filed any return declaring loss. She has not shown loss in her books of accounts. She has just claimed loss by way of submission. Factum of loss was not proved before the AO. The ld.AO did not take cognizance of her bald submissions. Loss has nowhere been assessed. In such situation, how an assessee can claim set off against of this alleged income under any other head against such unverified unclaimed loss. Therefore, the ld.Revenue authorities have rightly not granted any set off such loss to the assessee - Decided against assessee.
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9911796707
