|
Advanced Search Options
Case Laws
Showing 341 to 360 of 1054 Records
-
2011 (2) TMI 1293
Issues Involved:
1. Maintainability of the company petition.
2. Membership status of the petitioners.
3. Legality of the bifurcation of assets.
4. Validity of the impugned annual general meetings.
5. Validity of the balance-sheet for the year ended 31-3-2009.
6. Legality of the appointment of the second respondent's daughter.
7. Investigation into the affairs of the company.
8. Appointment of a new committee of management.
Issue-Wise Detailed Analysis:
1. Maintainability of the Company Petition:
The petitioners filed a company petition under sections 397 and 398 read with section 237(b) of the Companies Act, 1956, seeking various reliefs. The respondents filed applications (C.A. Nos. 118 and 194 of 2010) to hear the maintainability of the company petition as a preliminary issue. The contention was that the petitioners were not members of the respondent No. 1 company on the date of filing the petition, hence not meeting the qualification under section 399 of the Companies Act.
2. Membership Status of the Petitioners:
The petitioners claimed membership based on the annual return for the year 2003-04, arguing that no valid elections were conducted after 2003. The respondents contended that the petitioners ceased to be members as they did not get elected in the 2007 elections. The court examined the articles of association, which stipulated that only members of the executive committee of the Tirunelveli Diocese Council could be members of the company. The court found that the petitioners were not listed in the annual returns for 2007-08 and 2008-09 and thus were not members at the time of filing the petition.
3. Legality of the Bifurcation of Assets:
The petitioners challenged the bifurcation of the company's assets as unauthorized and illegal. They argued that no valid general meeting was held to authorize such bifurcation. The court noted that the disputes regarding the elections and the administration of the diocese had impacted the company's ability to hold regular meetings and file statutory returns.
4. Validity of the Impugned Annual General Meetings:
The petitioners sought to declare the annual general meetings dated 27-9-2008, 24-3-2009, and 30-9-2009 as illegal. They argued that no proper notice was given to them for these meetings. The court found that the respondents had falsely claimed that these meetings were held and noted the ongoing disputes affecting the company's governance.
5. Validity of the Balance-Sheet for the Year Ended 31-3-2009:
The petitioners challenged the balance-sheet as invalid due to the alleged irregularities in the company's administration and the disputed meetings. The court's decision on the maintainability of the petition indirectly addressed this issue by questioning the legitimacy of the petitioners' claims.
6. Legality of the Appointment of the Second Respondent's Daughter:
The petitioners argued that the appointment of the second respondent's daughter was unfair and illegal. The court did not specifically address this issue in detail, as the primary focus was on the maintainability of the petition and the membership status of the petitioners.
7. Investigation into the Affairs of the Company:
The petitioners sought an investigation into the company's affairs to ascertain the extent of illegal and financial frauds committed by the respondents. The court's decision on the maintainability of the petition precluded further examination of this issue.
8. Appointment of a New Committee of Management:
The petitioners requested the appointment of a new committee of management for the company. The court's ruling on the maintainability of the petition and the membership status of the petitioners rendered this request moot.
Conclusion:
The court allowed the applications (C.A. Nos. 118 and 194 of 2010) and held that the petitioners did not meet the criteria under section 399 of the Companies Act to sustain the company petition. Consequently, the company petition was dismissed. The court emphasized that the petitioners were engaging in forum shopping and attempting to supersede the High Court's order, which permitted the Diocese of Tirunelveli to continue its administration with the elected office bearers.
-
2011 (2) TMI 1292
Whether the information which has already been furnished satisfies the requirement of section 209A(2) of the Act?
Whether the initiation of the prosecution is barred by limitation ?
Held that:- n the present case, the company has furnished the information as called for and the respondent has not stated as to how the information is not satisfactory.
Therefore, under these circumstances the jurisdiction under section 482 of the Criminal Procedure Code is to be exercised to quash the proceedings in E.O.C.C. No. 91 of 2009 on the file of the learned Additional Chief Metropolitan Magistrate’s Court (Economic Offence-1), Egmore, Chennai-600 008. Accordingly, the criminal original petition is allowed.
-
2011 (2) TMI 1291
Issues Involved:
1. Eligibility of Kunigal Unit for deduction under section 10-B of the Income Tax Act.
2. Disallowance of cultivation expenses amounting to Rs. 90.64 lakhs.
Issue-wise Detailed Analysis:
1. Eligibility of Kunigal Unit for Deduction Under Section 10-B:
The primary contention was whether the Kunigal Unit was eligible for deduction under section 10-B of the Income Tax Act. The CIT(A) concluded that the Kunigal Unit did not satisfy one of the conditions laid down in section 10B(2)(iii), specifically that the plant and machinery acquired were old and already used. This decision was in line with the Tribunal's earlier rulings for the assessment years 2001-02 and 2002-03 in the assessee's own case, where it was held that a substantial portion of machinery used in the eligible undertaking was previously used, thus failing to meet the eligibility criteria.
The Tribunal noted that the jurisdictional High Court, in the case of Nippon Electronics, had held that the eligibility criteria must be satisfied in the first year of formation of the undertaking and subsequent investment in new machinery does not suffice. Consequently, the Tribunal upheld the CIT(A)'s decision, denying the deduction under section 10-B for the Kunigal Unit.
2. Disallowance of Cultivation Expenses of Rs. 90.64 Lakhs:
The second issue was the disallowance of cultivation expenses amounting to Rs. 90.64 lakhs. The CIT(A) upheld the disallowance on the grounds that these were agricultural expenses and should be carried forward for set-off against future agricultural income. However, the CIT(A) also directed the Assessing Officer to verify and reduce the disallowance to the extent of any recovery made from the contract farmers.
The assessee argued that the cultivation expenses were integral to its business of manufacturing and exporting herbal products. These expenses were incurred to induce farmers to grow medicinal plants and for research and development activities. The assessee contended that no agricultural income was generated from this cultivation as the produce was used for research and as raw material for industrial products. The assessee relied on the Board's Circular No. 6/2007, which allows such expenses as they are incurred for commercial expediency and are wholly and exclusively for the purpose of business.
The Tribunal, after considering the submissions and the facts, found merit in the assessee's argument. It noted that the expenses were incurred to ensure a steady supply of coleus plants, essential for the assessee's research and development activities. The Tribunal held that these expenses were for commercial expediency and were wholly and exclusively for the purpose of business. Therefore, the Tribunal allowed the cultivation expenses of Rs. 90.64 lakhs.
Conclusion:
The Tribunal upheld the CIT(A)'s decision to deny the deduction under section 10-B for the Kunigal Unit but overturned the disallowance of cultivation expenses, allowing the assessee's claim of Rs. 90.64 lakhs. Consequently, the alternative plea for a proportionate higher deduction under section 10B became redundant.
Result:
The appeal was partly allowed.
-
2011 (2) TMI 1290
Issues Involved:
1. Validity of the CIT's order under section 263.
2. Disallowance of interest paid on deposits.
3. Addition under section 68 for unexplained cash credits.
4. Disallowance of Charter Hire Charges under section 40(a)(i).
5. Depreciation rate on vehicles and trawlers.
6. Disallowance of ocean freight charges under section 40(a)(i).
Issue-Wise Detailed Analysis:
1. Validity of the CIT's order under section 263:
- The assessee appealed against the CIT's order setting aside the assessment for the year 1993-94. The Tribunal confirmed the CIT's order, noting that the issue of disallowance of ocean freight and hire charges under section 40(a)(i) was not examined by the Assessing Officer. The Tribunal dismissed the appeal, sustaining the CIT's order.
2. Disallowance of interest paid on deposits:
- The assessee contested the disallowance of Rs. 30,000 interest on a deposit. The Tribunal upheld the disallowance, noting that the issue was covered against the assessee by earlier orders.
3. Addition under section 68 for unexplained cash credits:
- The assessee challenged the addition of Rs. 60,000 under section 68. The Tribunal found that the assessee provided sufficient evidence, including confirmation letters and banking details, proving the genuineness of the deposit. The Tribunal set aside the CIT(A)'s order and directed the deletion of the addition.
4. Disallowance of Charter Hire Charges under section 40(a)(i):
- The Tribunal addressed multiple appeals concerning the disallowance of charter hire charges. The primary contention was whether the hire charges paid to non-residents were subject to TDS under section 195 and thus disallowable under section 40(a)(i). The Tribunal concluded that only the sum chargeable under the Act should be disallowed, not the entire payment. The Tribunal estimated 10% of the total receipt as the sum chargeable under the Act and remitted the matter to the Assessing Officer for recalculation.
5. Depreciation rate on vehicles and trawlers:
- The Tribunal examined the issue of higher depreciation on vehicles used for hire and depreciation on trawlers. It upheld the CIT(A)'s decision to allow higher depreciation, noting that the vehicles were used in the business of hire and the trawlers were in the assessee's possession. The Tribunal followed earlier decisions in the assessee's favor, confirming the CIT(A)'s orders.
6. Disallowance of ocean freight charges under section 40(a)(i):
- The Tribunal addressed the disallowance of ocean freight charges paid to foreign companies without TDS. The CIT(A) had deleted the disallowance, citing that payments were made to agents in India and were not subject to TDS under Chapter XVII-B. The Tribunal confirmed the CIT(A)'s order, agreeing that the payments were not made outside India and thus did not attract section 40(a)(i).
Conclusion:
- The Tribunal dismissed the appeals of the assessee in ITA Nos. 287 and 65, partly allowed ITA No. 21, dismissed the revenue's appeals in ITA Nos. 317, 49, and 105, and partly allowed ITA Nos. 150 and 64. The key issues revolved around the applicability of sections 40(a)(i), 68, and the appropriate rate of depreciation on assets used in the business.
-
2011 (2) TMI 1289
Issues Involved:
1. Validity of initiation of proceedings under sections 147/148.
2. Consideration of the sale value of the property.
3. Allegations of forced statements and retraction.
4. Use of photocopy of receipt as evidence.
5. Non-disposal of objections before passing the assessment order.
Detailed Analysis:
1. Validity of Initiation of Proceedings under Sections 147/148:
The assessees contended that the initiation of proceedings under sections 147/148 was unjust and based on unfounded reasons. The Tribunal noted that the Assessing Officer (AO) had enhanced the sale consideration based on a receipt indicating a higher sale value of the property, which was confirmed by the assessees in their statements. The AO had recorded reasons for reopening the assessment, which were considered valid by the Commissioner of Income-tax (Appeals) [CIT(A)]. The Tribunal upheld the validity of the proceedings, stating that the AO had relevant material to form the belief that income had escaped assessment, and the initiation was not based on suspicion or gossip.
2. Consideration of the Sale Value of the Property:
The AO assessed the sale value of the property at Rs. 93 lakhs based on a receipt indicating receipt of Rs. 55 lakhs in addition to Rs. 38 lakhs to be paid subsequently. The assessees argued that the receipt was forged and that the actual sale consideration was Rs. 39 lakhs. The CIT(A) upheld the AO's decision, noting that the assessees had confirmed the authenticity of their signatures on the receipt in their statements. The Tribunal found no evidence to rebut the AO's findings and upheld the addition made by the AO.
3. Allegations of Forced Statements and Retraction:
The assessees claimed that their statements were forcibly recorded by the ADIT (Inv.) and subsequently retracted. The Tribunal examined the circumstances and timing of the retraction and found no evidence to support the allegation of force. The Tribunal noted that the statements were recorded at the assessees' residence, and there was no indication of coercion. The retraction was considered an afterthought, and the Tribunal upheld the voluntary nature of the statements.
4. Use of Photocopy of Receipt as Evidence:
The assessees argued that the AO relied on a photocopy of the receipt, which could not be verified. The Tribunal noted that the assessees had confirmed the authenticity of their signatures on the receipt in their statements. The Tribunal held that the AO was justified in acting upon the photocopy of the receipt corroborated by the assessees' statements and upheld the AO's decision.
5. Non-disposal of Objections before Passing the Assessment Order:
The assessees contended that the AO did not dispose of their objections against the initiation of proceedings before passing the assessment orders. The Tribunal noted that the AO had supplied a copy of the reasons recorded under section 148 and had considered and disposed of the objections in the assessment orders. The Tribunal found no merit in the assessees' argument and upheld the AO's actions.
Conclusion:
The Tribunal dismissed all the appeals, upholding the validity of the initiation of proceedings under sections 147/148, the assessment of the sale value of the property at Rs. 93 lakhs, the voluntary nature of the statements given by the assessees, the use of the photocopy of the receipt as evidence, and the AO's disposal of objections in the assessment orders.
-
2011 (2) TMI 1288
Issues Involved:1. Justification of penalty u/s 271(1)(c) for concealment of income. 2. Applicability of section 2(22)(e) regarding deemed dividend. Summary:Issue 1: Justification of penalty u/s 271(1)(c) for concealment of incomeThe assessee appealed against the confirmation of a penalty of Rs. 19,90,738 levied by the Assessing Officer (AO) u/s 271(1)(c) of the Act. The assessee argued that there was no concealment of income or furnishing of inaccurate particulars, as all facts were disclosed in the tax audit report. The Tribunal noted that for imposing penalty u/s 271(1)(c), there must be concealment of income or furnishing of inaccurate particulars. In this case, the assessee disclosed all particulars of transactions with the sister concern in the audited accounts and the return of income. The Tribunal concluded that the penalty was not justified as the additions were made based on legal interpretation, and the assessee had disclosed all material facts. The Tribunal referenced the Hon'ble Supreme Court's decision in Reliance Petro Products (P.) Ltd., which held that a mere claim not sustainable in law does not amount to furnishing inaccurate particulars. Therefore, the penalty u/s 271(1)(c) was not sustainable. Issue 2: Applicability of section 2(22)(e) regarding deemed dividendThe AO treated the credit balance in the assessee's accounts as deemed dividend u/s 2(22)(e) and made an addition of Rs. 59,14,250. The assessee contended that the credit was not a loan or advance but collections made on behalf of the sister concern. The Tribunal noted that the assessee company was not a registered shareholder of M/s Rishmon Liquors Private Limited, which had given the loan. The Tribunal referred to the ITAT Special Bench decision in Bhaumik Colour (P.) Ltd., which held that deemed dividend can only be assessed in the hands of a registered shareholder. Since the assessee was not a registered shareholder, the amount could not be taxed u/s 2(22)(e). The Tribunal concluded that the penalty based on this addition was not justified, as the deeming provisions of section 2(22)(e) could not be applied to a non-shareholder. Conclusion:The Tribunal allowed the appeal of the assessee, concluding that the penalty u/s 271(1)(c) was not justified as there was no concealment of income or furnishing of inaccurate particulars, and the provisions of section 2(22)(e) could not be applied to the assessee, who was not a registered shareholder.
-
2011 (2) TMI 1287
Issues involved: Appeal against denial of deduction under section 35(2) for expenditure on scientific research.
Summary:
The appeal was filed against the order of CIT(A) for the assessment year 2006-07 under section 143(3) of the Income-tax Act, 1961. The only issue raised was the denial of the claim of deduction under section 35(2) for expenditure on scientific research. The Assessing Officer declined the claim based on the provisions of section 35(2AB) applicable to companies engaged in specified businesses. The CIT(A) upheld the decision, leading to the appeal before the ITAT.
Upon review, it was found that the assessee, engaged in manufacturing and trading, had claimed 100% deduction under section 35(1)(iv) for expenditure on building and plant and machinery for Research and Development. The Assessing Officer cited section 35(2AB) to deny the claim, stating that the higher deduction of 150% is subject to specific conditions for in-house research and development facilities approved by authorities. However, the ITAT noted that the assessee's claim fell under section 35(1) and not 35(2AB), as the latter pertains to a different set of conditions for higher deductions.
The ITAT clarified that section 35(1)(iv) allows deductions for capital expenditure on scientific research related to the business, subject to conditions under section 35(2). It highlighted that disallowing depreciation under section 32 for the same asset is the only condition under section 35(2(iv). The Assessing Officer's reliance on section 35(2AB) was deemed unjustified, as the assessee had not claimed the higher deduction rate of 150% under that provision.
Ultimately, the ITAT allowed the appeal, emphasizing that the assessee was entitled to 100% deduction under section 35(1)(iv) for the expenditure on building, plant, and machinery for Research and Development, with no further claim for depreciation under section 32 on the investment.
-
2011 (2) TMI 1286
Issues involved: Appeal against order of Assessing Officer u/s 144C for assessment year 2007-08.
Issue 1: Dispute Resolution Panel's consideration of assessee's submissions
The assessee challenged the Dispute Resolution Panel's (DRP) direction, claiming it did not consider their submissions adequately. The DRP's order was criticized for being laconic and not providing justification for rejecting the assessee's objections. The DRP's adjudication included the assessee's objection regarding the treatment of software license revenue as royalty under section 9(1)(vi) of the Income-tax Act, 1961 and the Indo-USA DTAA. The DRP's direction was found to be lacking in detail and proper consideration of the assessee's objections. The Tribunal emphasized the importance of the DRP providing cogent and germane reasons for its directions, citing legal precedents requiring quasi-judicial authorities to give reasoned decisions. The Tribunal concluded that the DRP's direction was too brief and remitted the issue back to the DRP for a fresh adjudication, emphasizing the need for a proper and speaking direction under section 144C of the IT Act.
Outcome: The Tribunal allowed the appeal for statistical purposes, remitting the matter to the DRP for a fresh direction with proper consideration of the assessee's submissions.
-
2011 (2) TMI 1285
Issues:
1. Dispute regarding the order of the Assessing Officer dated 21-9-2010 for assessment year 2006-07.
2. Validity of the directions given by the Dispute Resolution Panel (DRP) under section 144C of the IT Act.
3. Adjudication on Arm's Length Price under section 92C(3) by the DRP.
4. Consideration of objections raised by the assessee regarding Transfer Pricing related issues.
5. Compliance of the DRP with the provisions of section 144C of the IT Act.
6. Legal principles governing administrative orders and quasi-judicial authorities.
7. Precedents related to the obligation of quasi-judicial authorities to provide cogent and germane reasons for their decisions.
Analysis:
1. The appeal and Stay Application were directed towards the order of the Assessing Officer dated 21-9-2010 for the assessment year 2006-07. The draft order was passed based on the direction under section 144C by the Dispute Resolution Panel dated 30-8-2010.
2. The counsel of the assessee contended that the DRP did not consider the assessee's submissions adequately and passed a non-speaking direction. The objections raised included the failure to consider arguments, evidence, and factual errors pointed out by the assessee without providing reasons for not accepting them.
3. The DRP's adjudication on Arm's Length Price under section 92C(3) involved various objections raised by the assessee, such as the failure to discharge the statutory onus, improper application of comparability criterion, lack of adjustments for risk profiles and working capital differences, and disregarding transfer pricing regulations and judicial precedence.
4. The DRP considered the objections raised by the assessee and the submissions filed. It was noted that the DRP found no merit in the objections regarding the initial reference to the TPO by the Assessing Officer. The DRP also addressed issues related to choosing comparables and the use of current year data as mandated by law.
5. Section 144C outlines the obligations of the DRP, including issuing directions after considering the draft order, objections filed by the assessee, evidence, reports, and records. The DRP's directions are binding on the Assessing Officer and must be issued after giving an opportunity to be heard.
6. The Tribunal found that the DRP's order was too laconic and failed to address the voluminous submissions made by the assessee. Citing legal principles, the Tribunal emphasized the need for administrative orders to adhere to the rules of natural justice.
7. Referring to precedents, the Tribunal highlighted the obligation of quasi-judicial authorities to provide cogent and germane reasons for their decisions. The Tribunal remitted the issue back to the DRP for proper consideration and emphasized the importance of giving the assessee a fair opportunity to be heard.
8. The Tribunal's decision allowed the appeal for statistical purposes and dismissed the Stay Application as infructuous due to remitting the matter back to the DRP for fresh adjudication, emphasizing the need for proper consideration and a speaking direction under section 144C of the IT Act.
-
2011 (2) TMI 1284
Issues Involved:
1. Applicability of Section 50C to the assignment of development rights.
2. Valuation adopted by the stamp duty authorities.
3. Credit for FSI of flats received back by the appellant.
4. Deduction under Section 54 for the fair market value of the flat allotted.
5. Reference to the District Valuation Officer (DVO).
Detailed Analysis:
1. Applicability of Section 50C to the Assignment of Development Rights:
The assessee contended that Section 50C applies only to the transfer of land or building and not to development rights. The Tribunal rejected this contention, stating that Section 50C is applicable when rights to develop the property are transferred, as it falls under the definition of "transfer" under Section 2(47) of the Income-tax Act, which includes the relinquishment of an asset.
2. Valuation Adopted by the Stamp Duty Authorities:
The assessee argued that the valuation by the stamp duty authorities was unrealistic and extremely high. The Tribunal noted that the Assessing Officer should have referred the matter to the DVO under Section 50C(2) of the Act, as the assessee had objected to the valuation. The Tribunal directed the Assessing Officer to refer the valuation matter to the DVO and recompute the capital gain based on the DVO's findings.
3. Credit for FSI of Flats Received Back by the Appellant:
The assessee argued that the FSI of the flats received should be considered part of the sale consideration. The Tribunal found merit in the argument that only the development rights for 4171.48 sq.ft. were transferred to the developer, and the retained FSI should not be considered as transferred. The Tribunal directed that the capital gain should be computed based on the area actually transferred.
4. Deduction under Section 54 for the Fair Market Value of the Flat Allotted:
The assessee claimed a deduction under Section 54 for the fair market value of the flat allotted. The Tribunal upheld the CIT(A)'s decision to allow the deduction of Rs. 8,50,000 for the cost of the flat paid by the assessee, reducing the capital gain accordingly.
5. Reference to the District Valuation Officer (DVO):
The Tribunal emphasized that the Assessing Officer should have referred the valuation to the DVO as per the provisions of Section 50C(2) since the assessee had raised objections. The Tribunal restored the issue of valuation to the file of the Assessing Officer with instructions to refer the matter to the DVO and recompute the capital gain after obtaining the DVO's valuation.
Conclusion:
The Tribunal partly allowed the assessee's appeal for statistical purposes, directing the Assessing Officer to refer the valuation matter to the DVO and recompute the capital gain based on the findings and directions provided. The Tribunal upheld the applicability of Section 50C to the transfer of development rights and allowed the deduction under Section 54 for the cost of the flat allotted to the assessee.
-
2011 (2) TMI 1283
Issues Involved:
1. Exemption of dividend income under section 10(33) of the Income-tax Act.
2. Disallowance of expenses under section 14A of the Income-tax Act.
3. Disallowance of deduction under section 80HHC on the sale proceeds of DEPB.
4. Levy of interest under section 234ABC.
5. Initiation of penalty proceedings under section 271(1)(c).
6. Addition of unexplained cash credits.
7. Disallowance of ISO certification expenses.
8. Disallowance of interest on interest-free advances.
9. Disallowance of interest expenses on security deposits.
10. Addition of difference in stock as per books and bank statements.
11. Disallowance under section 14A.
12. Addition due to difference in arm's length price on international transactions.
13. Exclusion of sales tax, excise duty, and turnover from total turnover for section 80HHC.
14. Exclusion of miscellaneous income from business profits for section 80HHC.
Detailed Analysis:
1. Exemption of Dividend Income:
The assessee's appeal regarding the exemption of dividend income under section 10(33) of the Income-tax Act was dismissed as not pressed due to the smallness of the amount involved.
2. Disallowance of Expenses under Section 14A:
Similarly, the assessee's appeal against the disallowance of expenses under section 14A was not pressed due to the small amount involved.
3. Disallowance of Deduction under Section 80HHC on DEPB:
The Tribunal restored the issue to the Assessing Officer to re-examine and re-adjudicate the claim as per law, following the decision in the assessee's own case and its associate concern.
4. Levy of Interest under Section 234ABC:
The appeal regarding the levy of interest under section 234ABC was treated as consequential and required no adjudication.
5. Initiation of Penalty Proceedings under Section 271(1)(c):
The appeal against the initiation of penalty proceedings under section 271(1)(c) was deemed premature and required no adjudication.
6. Addition of Unexplained Cash Credits:
The assessee admitted the addition of Rs. 15,00,000 as unexplained cash credits, and the Tribunal confirmed this addition.
7. Disallowance of ISO Certification Expenses:
The Tribunal upheld the CIT(A)'s decision to allow ISO certification expenses as revenue expenses, following the precedent set in the assessee's own case and other similar cases.
8. Disallowance of Interest on Interest-Free Advances:
The Tribunal found that the assessee had sufficient interest-free funds and upheld the CIT(A)'s decision to allow the interest expenses, following the decision in the assessee's own case.
9. Disallowance of Interest Expenses on Security Deposits:
The Tribunal upheld the CIT(A)'s decision to allow interest expenses on security deposits, noting that the assessee had sufficient interest-free funds and the deposits were for business purposes.
10. Addition of Difference in Stock as per Books and Bank Statements:
The Tribunal found that the Assessing Officer had failed to consider the stock of work in progress and upheld the CIT(A)'s decision to delete the addition, following the decision in the assessee's own case.
11. Disallowance under Section 14A:
The Tribunal upheld the CIT(A)'s decision to delete the disallowance under section 14A, noting that the Assessing Officer had failed to prove the nexus between the borrowed funds and the investments.
12. Addition due to Difference in Arm's Length Price on International Transactions:
The Tribunal upheld the CIT(A)'s decision to accept the Transactional Net Margin Method (TNMM) adopted by the assessee and rejected the Comparable Uncontrolled Price (CUP) method applied by the TPO, following the decision in the associate concern's case.
13. Exclusion of Sales Tax, Excise Duty, and Turnover from Total Turnover for Section 80HHC:
The Tribunal upheld the CIT(A)'s decision to exclude sales tax and excise duty from the total turnover, following the Supreme Court decision in CIT v. Lakshmi Machine Works. The issue of excluding the turnover of Dishman Business Centre and Adiman Travels was remanded to the Assessing Officer for verification.
14. Exclusion of Miscellaneous Income from Business Profits for Section 80HHC:
The Tribunal remanded the issue of excluding miscellaneous income from business profits to the Assessing Officer for verification, noting that the nature of the miscellaneous income was not clear.
Conclusion:
Both the revenue's appeals and the assessee's appeals were partly allowed for statistical purposes. The Tribunal's decisions were largely based on precedents set in the assessee's own case and related cases, emphasizing the importance of consistency in judicial decisions.
-
2011 (2) TMI 1282
Application for grant of temporary injunction restraining the appellant/defendant No. 3 Bank temporarily from taking possession of the suit property or auctioning the same during the pendency of the suit - respondent Nos. 1 and 2 are the original plaintiffs, who have filed Special Civil Suit for declaration, partition, separate possession and permanent injunction in respect of the suit property described in the schedule of the suit property attached to the plaint. The plaintiffs joined their father as the defendant No. 1, since he had mortgaged the suit property with the respondent No. 3-Bank, and the mother of the plaintiffs was joined as the defendant No. 3 - claim of the plaintiffs in the suit is that the suit property is the ancestral Joint Hindu Family property and they are the coparceners of it, having 1/4th undivided share each in the said property. It is claimed in the plaint that the suit property has been purchased by the defendant Nos. 1 and 2 from out of the income from the ancestral property, including the income from the agricultural fields and other immovable properties. It is alleged that the plaintiff Nos. 1 and 2 together are carrying on the ancestral business of selling of books on the ground floor of the suit property and the first floor of the suit property is being used as the residential house of the Joint Hindu Family. It is claimed that the suit property has not been partitioned and hence a decree for partition and separate possession of their share in the suit property has been claimed by the plaintiff to the extent of their share - defendant No. 1 has taken a loan from the defendant No. 3-Bank to satisfy his vices, by mortgaging the suit property with the defendant No. 3-Bank. The defendant No. 3-Bank has issued a notice under section 13(2) of the said Act to the plaintiffs and the defendant Nos. 1 and 2 to discharge the liabilities due and owing to the defendant No. 3-Bank in the sum of Rs. 31,79,484.91 as on 31-12-2007 along with future interest. It is alleged that the defendant Nos. 1 and 2 were not the absolute owners of the entire suit property and had, therefore, no authority to mortgage the same with the defendant No. 3-Bank – Held that:- jurisdiction of civil court to entertain, try and decide a civil suit challenging action of defendant No. 3-bank to take possession of suit property and to sell same to recover its debts by enforcing security interest in suit property in accordance with provisions of section 13, was completely barred by section 34. since jurisdiction of civil court to entertain, try and decide civil suit for partition and separate possession of suit property was not barred by section 34, jurisdiction of civil court to grant permanent and temporary injunction refraining defendants from dealing with suit property or creating third party interest therein was also not ousted by section 34. it was open to plaintiffs to lodge their objection(s) under section 17 before Debts Recovery Tribunal
-
2011 (2) TMI 1281
Writ Petition - Conflict between two regulatory authorities - regulatory authority functioning under the Consumer Protection Act i.e., Forward Market Commission (FMC) claims sole right in the matter of forward contract whereas the authority functioning under the Electricity Act, 2003 i.e., Central Electricity Regulatory Commission (CERC) claims exclusive right in the matter of dealing with the trading activities in connection with the electricity including dealing in forward contract - MCX applied to the FMC seeking approval for launching electricity futures contracts, FMC granted its approval - MCX accordingly launched forward trading in electricity - Power Exchange of India Limited (PXIL) challenged the electricity futures contracts formulated by the petitioner, before the CERC on the ground that (i) the CERC has the exclusive jurisdiction over regularising electricity including all forward contracts, futures, etc. (ii) after the enactment of the Electricity Act, 2003, the MCX and the FMC have been denuded of jurisdiction over electricity and (iii) the MCX had commenced launch of trading in electricity futures contracts without any approval of CERC and mere approval FMC had no efficacy in the eyes of law – Held that:- CERC cannot be permitted to have regulations under section 66 and 178(2)(y) by virtue of section 174 of the Electricity Act, to prevail over the provisions of section 14-A and 15 of the forward contracts in such fashion with regard to the futures contracts/forward contracts. domain and jurisdiction of respective authorities/commission is totally different and distinct in every aspect. CERC is a statutory authority being constituted under the Electricity Act, cannot be provided that the power beyond the statutes permitting to do futures, forward, derivative contracts which is admittedly a domain jurisdiction of authorities/commission under the FCR Act. CERC and/or even the Appellate authority under the Electricity Act have no jurisdiction to decide the validity of regulations framed by CERC under section 178 of the Act. It is subject to challenge by invoking judicial power under Article 226 of the Constitution of India
-
2011 (2) TMI 1280
Writ petition - Oppression and mismanagement – refusal of company to convert warrants into equity shares - alleged in the petition that the present management and the promoters holding the controlling stake in the company are trying to dispose of the said unit by way of transferring its shareholding to a 3rd party without the consent and approval of the shareholders – Held that:- Mere fact that it was decided to offer shares to others and not to the existing shareholders would not therefore necessarily mean oppression of the minority shareholders - petition under Sections 397 and 398 of the Companies Act is not maintainable as it is filed for an isolated alleged act of oppression and mismanagement - refusal of OSIL to convert warrants held by Bhushan Energy Limited into equal number of equity shares may amount to a breach of contract but such breach of contract cannot constitute the ingredients of a complaint under Sections 397, 398, 402 and 403 of the Companies Act - petitioners before the Company Law Board who are respondents in this appeal have failed to establish mismanagement and oppression on the part of the management and for conversion of warrants into equity shares in an application under Section 397/398 of the Companies Act is not contemplated
-
2011 (2) TMI 1279
Oppression and mismanagement – company is closely held company of six brothers - family had another business venture run by another closely held company which borrowed funds from Bank - loan was secured by a corporate guarantee executed by Aruna Theatres and Enterprises - default committed by them - bank initiated proceedings - Receiver appointed by the Debts Recovery Tribunal had taken over charge of the management of the theatres – receiver alleged acts of oppression and mismanagement - On basis of such report instant petition under section 397/398 was preferred by legal heirs of six brothers and other shareholders of company making out a case that facts disclosed in such report established oppression and mismanagement – respondent challenged the petition on the ground that there were no continuing acts of oppression and mismanagement as on the date of filing of the company petition – Held that:- temporary suspension of perpetration of acts of oppression and mismanagement by receiver, not for benefit of company but for benefit of bank, could not entitle respondents to contend that there were no acts of oppression and mismanagement on date of filing of instant petition - company petition was maintainable - In favour of company
-
2011 (2) TMI 1278
Dishonour of cheque for insufficiency, etc., of funds in account - Complainants had placed orders with company for supply of some products and had issued demand drafts in favour of that company - However, company failed to deliver ordered products and complainants asked company for return of their money - Cheques were issued by company on 30-4-2004 in favour of complainants but same were dishonoured on presentation – Held that:- dishonoured cheques were issued by the Company on 30-4-2004, i.e., much after the appellant had resigned from the post of Director of the Company. The acceptance of appellant’s resignation is duly reflected in the resolution dated 2-3-2004. Then in the prescribed form (Form No. 32), the Company informed to the Registrar of Companies on 4-3-2004 about appellant’s resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. appeals are, accordingly, allowed
-
2011 (2) TMI 1277
Enforcement of security interest - Respondent No. 3, viz. the State Bank of India had advanced a loan - On default of re-payment of loan amount, respondent No. 3 issued a notice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest - High Court by impugned order dismissed said writ petition on ground that an alternative remedy was available to appellant under section 17 – Held that:- efficacious statutory remedy of appeal under section 17 of the Act was available to the appellants, who ultimately availed of the same. Therefore, having regard to the facts obtaining in the case, the High Court was fully justified in declining to exercise its jurisdiction under Articles 226 and 227 of the Constitution. appeals, being devoid of any merit, are dismissed
-
2011 (2) TMI 1276
Cenvat Credit - architect services, authorized service station, interior decoration services, real estate agents services and stock broker services - Rule 2(1)(ii) of the Cenvat Credit Rules, 2004 - It can be seen that the services were utilized by the appellant for the purpose of enhancement of his business - in the case of Coca Cola India Pvt. Ltd. v. CCE [2009 -TMI - 34433 - BOMBAY HIGH COURT] - Held that: each limb of the definition can be considered as independent eligible for exemption. If that be so, in the factual matrix of this case, as narrated hereinabove, as the said services were, directly or indirectly, used for the purpose of their business, credit cannot be denied - Appeal is allowed
-
2011 (2) TMI 1275
Demand - Show Cause Notice was issued alleging that the capital goods, inputs and input services on which credit was taken has no nexus with the renting of immovable property service and therefore the CENVAT credit could not be utilized by them and accordingly proposing demand of service tax of Rs.1,99,801/- along with interest and proposing imposition of penalties - Rule 3(1) of the CENVAT Credit Rules - a provider of taxable service is also entitled to take credit of specified excise duty, additional duty of customs and service tax in respect of input services and utilize the credit from all these sources for the purpose of paying service tax - The respondent is undisputedly registered as a service provider for providing the services of renting of immovable property - the rules permit taking of credit under a common pool and permit use of the credit from the common pool for different purposes and there is no restriction placed to the effect that credit accounts should be maintained for use for manufacture of excisable goods and for use for providing services - Appeal is dismissed
-
2011 (2) TMI 1274
Permission to convene the extraordinary general meeting - Held that:- Whether the arbitration proceedings initiated by Zenotech against a subsidiary of Ran-baxy are likely to be affected by Ranbaxy getting a seat on the board of Zenotech is a matter to be decided by a properly constituted board of Zenotech. The submission of learned counsel for Dr. Jayaram that he may be permitted to go out of Zenotech is a matter to be considered in the company petition filed by him (C. P. No. 51 of 2009). Since Ranbaxy is the majority shareholder it is necessary that their nominees are on the board of Zenotech in its large interest.
In the facts and circumstances of the case, I am inclined to allow this petition by granting permission to the applicant (Ranbaxy) to convene the extraordinary general meeting of Zenotech (respondent No. 1).
............
|
9911796707
