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Showing 41 to 60 of 1510 Records
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2015 (1) TMI 1480
Validity of sentences awarded to the Appellant - undelivered parcel containing Gold Chain by post office - theft or not - offences punishable Under Sections 381 and 419 of Indian Penal Code read with Section 52 of the IPO Act - whether the sentences awarded to the Appellant under Indian Penal Code and the IPO Act should run "concurrently" or "consecutively"? - HELD THAT:- The expressions "concurrently" and "consecutively" mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under Indian Penal Code or/and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason that award of former enure to the benefit of accused whereas award of latter is detrimental to the accused's interest. It is, therefore, legally obligatory upon the Court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentence awarded to the accused would run "concurrently" or they would run "consecutively".
The issue as to in which circumstances the Court should direct the sentences to run "concurrently" or "consecutively" after the accused is convicted of more than one offence in one trial or more has been the subject matter of several cases in this Court and thus remains no more res integra. This issue was considered by this Court while considering the scope of Sections 31, 427 and 428 of the Code and Section 71 of Indian Penal Code.
Reliance placed in the decision of this Court in Chatar Singh v. State of M.P. [2006 (11) TMI 714 - SUPREME COURT] and State of Punjab v. Madan Lal [2009 (3) TMI 912 - SUPREME COURT], and lastly recently in Manoj @ Panu v. State of Haryana [2013 (12) TMI 1732 - SUPREME COURT], wherein this Court taking recourse to Section 31 of the Code directed in somewhat similar facts that the sentences awarded to the accused to run "concurrently" in place of "consecutively".
Thus, in the light of powers available Under Section 31 of the Code, it can be held that both the sentences awarded to the Appellant in the case at hand should run "concurrently" and this is done by invoking Section 31 which enables the Court to so direct.
This is a fit case where we can direct the sentences awarded to the Appellant to run "concurrently" for the reasons that firstly, the case out of which this appeal arises relates to the year 1993 and is pending for a long period of 21 years; secondly, the two sentences, which were imposed on the Appellant, arose out of one offence of theft punishable Under Section 381 Indian Penal Code tried in one trial; thirdly, the provisions of Section 52 of the IPO Act were required to be invoked against the Appellant because he was the postal employee; fourthly, the Gold Chain was long recovered and also handed over to the person concerned; fifthly, the Appellant has already been dismissed from services due to impugned conviction; and lastly, the Appellant has been suffering from heart ailment since long, as is proved by documents filed along with the Appellant's affidavit 03.11.2014.
The conviction and sentences awarded to the Appellant by the courts below for the offences punishable Under Section 381 of Indian Penal Code and Section 52 of the IPO Act are upheld. However, it is directed that both the sentences awarded to the Appellant under Indian Penal Code and IPO Act would run "concurrently" - Appeal allowed in part.
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2015 (1) TMI 1479
Capital gain computation - adoption of the value of the property taken for the purpose of stamp duty as sale consideration - determination of the fair market value of the land sold in the light of provisions of section 50C - difference between the valuation declared and fair market value estimated by the DVO - HELD THAT:- CIT(A) has noticed the irregularities committed by AO by not making reference to the DVO on the objections raised by the assessee with regard to the fair market value of the property and directed the Assessing Officer to make reference to the DVO as per provisions of section 50C(2) of the Act and consequently the DVO has determined the fair market value and report was submitted to the ld. CIT(A) by the Assessing Officer.
We do not find any infirmity or illegality in this exercise, as effort was made by the ld. CIT(A) to make compliance of the provisions of the Act in order to determine the fair market value of the land. - difference in the estimated value by the DVO and the sale consideration declared by the assessee was only 11.9% of the value estimated by the DVO. Since the difference was nominal, CIT(A) has directed the Assessing Officer to adopt the sale consideration declared by the assessee. In this direction also, we do not find any infirmity or illegality. We, therefore, having agreed with the order of the ld. CIT(A), confirm his order. -Decided against revenue.
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2015 (1) TMI 1478
Validity of Reopening of assessment u/s 147 - ITO-3, Kashipur jurisdiction over the assessee - assessee has took a plea that the Income Tax Officer-III, Kashipur has no jurisdiction over the assessee, as the assessee is an old Income-tax assessee which is under the jurisdiction of Income Tax Officer-IV(3), Lucknow - HELD THAT:- Since the Assessing Officer having jurisdiction over the assessee was Income Tax Officer-IV(3), Lucknow, notice issued under section 148 of the Act by Income Tax Officer-III, Kashipur is not a valid notice, therefore, the assessment framed consequent thereto is not valid and deserves to be annulled.
Thus the notice under section 148 of the Act is not valid, as it was issued by an Officer having no jurisdiction over the assessee and therefore the assessment framed consequent thereto deserves to be annulled. - Decided against revenue.
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2015 (1) TMI 1477
Dishonor of Cheque - Suspension of substantive order of sentence - imposition of condition to deposit 25% of the amount of the cheque by the petitioner - HELD THAT:- This Court is of the opinion that the Sessions Court has committed an error by imposing the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. The accused is having a statutory right to prefer an appeal before the Sessions Court, and when there is no order of grant of compensation passed by the learned Judicial Magistrate First Class in favour of the complainant, the Sessions Court could not have imposed the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence.
From the decision of the Honourable Supreme Court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and another [2007 (4) TMI 667 - SUPREME COURT], it is clear that the petitioner accused is having a statutory right to prefer appeal before the Sessions Court. When such appeal is preferred, it is the duty of the learned Sessions Court to release the concerned accused on bail by suspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh.
In the present case, it is clear from the record that the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. However, while suspending the sentence, a condition was imposed on the petitioner to deposit 25% amount of the cheque amount. From the facts of the case, it appears that the petitioner is not in a position to fulfil the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside.
In the present case, it is clear that while suspending the substantive order of sentence of the present appellant, the learned Sessions Court imposed a condition to deposit 25% of the cheque amount, which can be said to be a harsh condition as averred and contended by the petitioner in the petition.
Petition allowed.
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2015 (1) TMI 1476
Input Tax Credit on turnover fixed by the Tribunal - HELD THAT:- The case may be examined and the amount of tax may be recomputed in accordance with law within a period of two months from the date a certified copy of this order being placed before the assessing authority.
The revision stands disposed of.
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2015 (1) TMI 1475
Genuineness of gift - accommodation entries - gift cannot be accepted as such to be genuine, merely because the amount has come by cheque or draft through banking channels, unless the identity of the donor, his creditworthiness, relationship with the donee and the occasion are proved - HC maintain the addition of the gift amount, but disallow the assumed addition of 10 per cent. on premium paid to middlemen - HELD THAT:- Delay condoned.
We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed.
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2015 (1) TMI 1474
Assessment of trust - surplus distributed among the members - whether 95% of surplus of the assessee trust distributed among its members can be brought to tax at maximum marginal rate in the hands of the assessee treating the assessee as AOPs? - HELD THAT:- Issue decided in favour of assessee as in [2014 (8) TMI 1221 - ITAT CHENNAI] as relying on [2013 (11) TMI 1270 - ITAT CHENNAI] upholding the order of CIT (A) in holding that 95% of surplus distributed among the members is not liable to be taxed.
assessee trusts and the SHGs are inter-related and they are all concerns governed by the principles of mutuality. The 95 per cent surplus distributed by the assessee trusts to the various SHGs working under them is nothing but the income of those SHGs themselves. It is not something that those groups are getting from outside by way of income. It is the fruit of their efforts. After finalising the accounts and computing the surplus, the profits are divided among those members, whose shares are determinate and whose roles are well defined.
We endorse the view of the CIT (Appeals) that all these SHGs working under the assessee trusts are concerns governed by the principles of mutuality and accordingly the 95 per cent of surplus distributed among them are not in the nature of income.
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2015 (1) TMI 1473
Revision u/s 263 by CIT - as per CIT unexplained cash credits in the capital account cannot be considered as business income arising out of the assessee’s contract activities - assessee has shown huge expenditure under various heads in the profit and loss account. The Assessing Authority should have probed into these and critically examined the correctness of the same. There is nothing on record to show that the AO has gone through any material in respect of such transactions - HELD THAT:- The material on record discloses that, ₹ 35.38 crores is the gross bill. The assessee is working under the main contractor M/s IVRCL. They deducted a sum of ₹ 22.99 crores from the bill of the assessee on account of the materials supplied and expenditure incurred by them. Only a sum of ₹ 12.38 crores was actually paid to the assessee. On that basis a sum of ₹ 4,95,970/- was the income offered by the assessee in the return of income. However, the Assessing Authority after scrutiny of the entire material on record added a sum of ₹ 80,64,764/-. Thus, the total income was determined at ₹ 85,60,730/-. The said income with reference to the contract receipts of ₹ 13.37 crores works out to 6.4%. Therefore, the contention that it works out to 0.12% is erroneous.
Even in respect of the main contract, in respect of civil contracts 8% is taken normally as the income earned out of such contracts. When such a contractor gives the work to a sub contractor normally about 5% is taken as the income of the contractor. In the instant case it works out to 6.4%. The tenor of the order of the Commissioner under Section 263 discloses that, because the net profit shown in the Profit and Loss Account was only ₹ 4.63 lakhs which works out to 0.12% the proceedings are initiated.
Factually it is incorrect. In those circumstances, in the absence of any other material which was before the Commissioner he was not justified in recording a finding that the assessing authority has not applied its mind, not verified the expenses, not verified the receipts and looked into the book and, therefore, a case for interference under Section 263 is made out cannot be accepted. - Decided in favour of the assessee and against the revenue.
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2015 (1) TMI 1472
Taxation of capital gains on sale of agricultural land pertaining to assessee - determine the sale price as income of assessee - HELD THAT:- Assessee was not aware about the statement given by the said Smt. Bhagya Lakshmi and others. It is also noticed that assessee has sold the agricultural property to one Mr. T. Chandra Sekhar and Shri V. Papaiah being the vendors. How these two are connected with Smt. Bhagya Lakshmi in the purchase of the so called 15.14 acres is not coming out of the assessment order. Not only that the basis of determining the price is also not forthcoming from the orders. In fact assessee asked for copies of the documents relied on by the AO which are also denied to him as stated above.
As perused the sale deed dt.17-11-2006. It is clear from the recitals that property is ancestral property devolved on assessee by way of partition. In that case, the status of assessee, being HUF property or individual also required to be determined. Not only that, 1/4th of the share of the property, as can be seen from the recitals of the sale deed, pertain to his son who also became vendor No.2.
When the sale deed is very clear about respective shares, how the entire amount can be brought to tax in the hands of assessee was also not explained by the AO - document of sale indicates that the property sold was agricultural land. Whether sale of agricultural land can be considered as a capital asset or not also required to be considered. Principles of natural justice have not been followed in this case, we are of the opinion that assessee should be given due opportunity.
Since assessee seems to be an illiterate person, it is the duty of the officer to explain the provisions of law, so that the person can follow the proceedings. It is all the more necessary that Assessing Officer should follow the provisions of law before raising a demand against assessee - CIT(A) dismissed the appeal without considering any of the contentions or issues involved in the assessment - assessee should be given due opportunity. AO should determine the correct status, shares of the assessee and the price he received so that correct capital gains can be brought to tax. AO is directed to examine all the issues and then only complete the assessment as per facts and provisions of law. Assessee is free to raise any objections or contentions involved in the assessment procedure. Appeal is allowed for statistical purposes.
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2015 (1) TMI 1471
Dishonor of Cheque - legally enforceable debts/liabilities or not - trial court rejected the petitioner's prayer for sending the cheques to the hand-writing expert - section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- It is abundantly clear even if an incomplete negotiable instrument, signed by the drawer delivers to anyone, it authorizes the holder thereof to make or complete the same as the case may be and also the person so signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder thereof in due course for payment of such amount. Therefore, even if a bill of exchange, which includes a cheque, if delivers to any person singed by the drawer, no payment against such cheque can be denied on the plea the same was delivered to the person was partially blank. Since the signature in the cheque has not been disputed there is no need for verification of the handwriting by which the name of. the payee and the amount has been filled up.
It appears that the proceeding is pending since 2012 for more than 2 and half year although it is the legislative intent that the court shall make all endeavours to conclude the trial relating to such offence within six months from the date of filing of the complaint. This case has already reached the stage of examination of the accused under section 313 Cr.P.C.
The criminal revision has no merit and accordingly stands dismissed.
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2015 (1) TMI 1470
Block assessment - non appearance by assessee - HELD THAT:- At the time of hearing of these appeal none appeared on behalf of the assessee. The assessee had filed adjournment application. But, in the adjournment application, there was no sufficient cause and moreover, this appeal is about 10 years old; therefore, the same is rejected. In the circumstances, it appears that the assessee is not interested in pursuing the appeal, and no useful purpose would be served by adjourning the hearing.
Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of Multiplan India [1991 (5) TMI 120 - ITAT DELHI-D] and in view of the decision of Estate of Late Tukoji Rao Holkar,[1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT], we dismiss the appeal in limine. However, if the assessee on a later stage gives explanation in regard to its non-appearance before the Tribunal on the date of hearing before the Tribunal by filing a Miscellaneous Application as per the ITAT Rules and if the Bench is so satisfied the appeal of the assessee can be recalled for hearing on merit.
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2015 (1) TMI 1469
Ex-parte appeal decided by CIT-A - Violation of principle of natural justice - due service of notice or not? - HELD THAT:- We are unable to see any observation or conclusion of the CIT(A) that the notice issued to the assessee on 15.10.2012 for the date of hearing on 6.11.2012 was duly served upon the assessee and despite due service, neither the assessee nor his representative attended the proceedings nor any request for adjournment was made on behalf of the assessee. In this situation, it can safely be presumed that the CIT(A) ignored to appreciate this fact whether the last notice dated 15.10.12 was really served upon the assessee or not. In this situation, ex parte order passed by the CIT(A) is clearly violative of principles of natural justice.
The present case is squarely covered in favour of the assessee by the order of the ITAT Ahmedabad Bench ‘C’ in the case of Gujarat Themis Biosyn Ltd. [1999 (8) TMI 109 - ITAT AHMEDABAD-C], hence, appeal of the assessee on this legal issue is allowed and thus, we hereby set aside the impugned order of the CIT(A) and direct the CIT(A) to dispose of the appeal of the assessee afresh after allowing proper opportunity of hearing in accordance with law. Appeal of the assessee is deemed to be allowed for statistical purposes
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2015 (1) TMI 1468
Agricultural income - denial of exemption - conversion of foundation seeds into certified seeds - assessee supplying foundation seeds to farmers owning land, who under directions issued by company cultivate such seeds and get compensation for it - HC held that conversion of foundation seeds to certified seeds as manufacturing activity, assessee would not get benefit of total exemption u/s 10(1) of the Act. - Decided against the Assessee by holding as business income - HELD THAT:- Delay condoned. Leave granted in all the SLPs.
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2015 (1) TMI 1467
Murder - dowry - Homicidal death - Chargeability and punishment - case of the prosecution is that two months prior to her death on one of her visits to her parental home, the deceased informed her two brothers of cruelty connected with dowry demands meted out to her by her husband and his family members - HELD THAT:- It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death if a young bride confines its charges to Section 304B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. But, in any death other than in normal circumstances, we see no justification for not citing either Section 302 or Section 306, as the circumstances of the case call for. Otherwise, the death would logically fall in the category of an accidental one. It is not sufficient to include only Section 498A as the punishment is relatively light. Homicidal death is chargeable and punishable under Sections 302 and 304B if circumstances prevail triggering these provisions.
Some doubts remain on the aspect of presumption of innocence, deemed culpability and burden of proof - Even though there may not be any Constitutional protection to the concept of presumption of innocence, this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India, such that the departure or deviation from this presumption demands statutory sanction. This is what the trilogy of dowry legislation has endeavoured to ordain.
The two prosecution witnesses, on whom the entire episode is predicated, are PW 4 and PW 7. The Complainant/PW 4-Angrez Singh appears to be the eldest in the family as he has stated that his brother, i.e. the father of the deceased, had already died. He has stated that sufficient kanyadan was given at the time of marriage; that two months prior to her death the deceased had, on one of her visits to their home, conveyed to her brothers that her husband and his family were harassing her for dowry, especially a motorcycle and fridge - The Complainant has admitted that there were no demands for dowry either at the betrothal or at the time of marriage. Her maternal uncle Gurdip Singh avowedly fixed/mediated/arranged the unfortunate marriage, yet he was not apprised of the dowry demands by Angrez Singh. He has also denied that any panchayat was convened regarding these dowry demands, whereas Sukhwant Singh PW 7, the real brother of the deceased, has categorically stated in cross-examination that a panchayat comprising both Angrez Singh and Gurdip Singh and several others had held deliberations.
The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the Appellant had treated the deceased with cruelty connected with dowry demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the Appellant to discharge beyond reasonable doubt, the assumption of his deemed guilt. We have not lost sight of the fact that the deceased was pregnant at the time of her suicide and that only extraordinary and overwhelming factors would have driven her to take her life along with that of her unborn child. The fact remains that she did so - Added to this are the inconsistencies and contradictions between the statements of PW 4 and PW 7 with regard to the panchayat and the presence of and knowledge of Gurdip Singh. It is for these reasons that we are of the opinion that the prosecution has not shown/presented and or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. It is in the realm of a possibility that the ingestion of aluminium phosphate may have been accidental.
In his examination under Section 313 Code of Criminal Procedure the accused has proffered details of his defence. This is not a case where he has merely denied all the questions put by the Court to him. As already stated above, because of the insufficiency or the unsatisfactory nature of the facts or circumstances shown by the prosecution, the burden of proving his innocence has not shifted to the Appellant, in the present case - the impugned judgment convicting and punishing the Appellant is set aside - Appeal allowed.
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2015 (1) TMI 1466
Exemption u/s 11 - cancelling the registration of the assessee as a Charitable Board u/s 12A already granted - Under what circumstances the registration granted earlier could be cancelled? - Tribunal recorded a finding that the registration granted u/s 12A cannot be revoked on account of commercial activities by the Board in pursuing the advancement of objects of general public utility and registration can be cancelled only on arriving at a finding that the activities of the Board are not genuine and not carried in accordance with the objects of the Board - HELD THAT:- The registration granted is cancelled in view of the amendment of first proviso to Section 2(15) of the Act. That is not a ground specified in the statute for cancellation of the registration. In fact, Sub-section (8) of Section 13 of the Act which is introduced by Financial Act, 2012 which came into effect from 1.4.2009 categorically provides that, nothing contained in Section 11 or 12 shall operate so as to exclude any income from the total income of the previous year or any receipt there of.
If the provisions of the first proviso to clause (15) of Section 2 becomes applicable in the case of such person in the said previous year, the statute has protected the interest of the revenue. Notwithstanding the fact that the assessee is conferred registration under the provisions of Section 12A of the Act, unless the assessee falls within the provisions of Section 2(15) of the Act, excluding the first proviso, the assessee would not be entitled to the benefit of exemption from the tax. If the case of the assessee falls in the first proviso to Section 2(15) of the Act, the benefit of registration which flow from Section 12A of the Act is not available. Anyhow, that is a matter to be considered by the Assessing Authority. But on that ground, the registration cannot be cancelled, which is precisely the Tribunal has held by allowing the appeal in the present impugned order. - Decided against revenue.
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2015 (1) TMI 1465
CENVAT Credit - output services or not - transport services availed by the Respondent and provided by a goods transport agent - utilization of Cenvat Credit for payment of Service Tax on services provided by goods transport agent - Explanation to Rule 2(p) of the Cenvat Credit Rules, 2004 - HELD THAT:- It is not disputed by the learned Counsel appearing for the appellant that the Explanation was omitted in 2006; whereas the dispute under consideration is in respect of the year 2005 and, as such, the Explanation to Rule 2(p) of the said Rules would be applicable to the facts of the present case. On plain reading of the said Explanation, as it is not disputed that the respondents are paying service tax, the services rendered by the respondents on that count are deemed to be "output service" as the other conditions therein are satisfied.
On perusal of the order passed by the Commissioner (Appeals), Central Excise & Customs, Goa, dated 16th March, 2007, it is seen that the Commissioner has taken a view that as per Explanation to Rule 2(p) of the Cenvat Credit Rules if a person liable for payment of service tax does not provide any taxable service, the service for which he is liable to pay service tax shall be deemed to be the output service. The Commissioner has further found that on harmonious reading of various rules of Cenvat Credit Rules and Service Tax Rules, it is clear that Cenvat Credit can be utilized for payment of Service Tax liability in respect of goods transport agent.
Appeal dismissed.
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2015 (1) TMI 1464
Levy of penalty u/s 271(1)(c) - Undisclosed sale of plots - facilitator under public development scheme - slums area in city of Chandigarh development by Chandigarh Administration floated a scheme - as argued assessee worked as a nodal agency to Chandigarh Administration - Chandigarh Administration to raise funds for the said scheme decided to develop Rajiv Gandhi Chandigarh Technology Park (RGCTP) on Public Private Partnership basis and to generate funds through auction of plots in this park and facilitate the development assessee purchased certain lands from Chandigarh Administration and after necessary formalities, some of the plots were auctioned though public auction
HELD THAT:- Parties has ultimately reached to an amicable settlement with regard to the taxability of the proceeds received on auction of the plots. The Hon'ble Supreme Court has clearly observed that no penalty proceedings would be initiated. In our opinion in view of the amicable settlement reached and the assurance given before the Hon'ble Supreme Court as well as High Court, no penalty could be levied. We feel that this is not a fit case of levy of penalty and accordingly we set aside the order of Ld. CIT(A) and delete the penalty. - Decided in favour of assessee.
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2015 (1) TMI 1463
Reopening of assessment u/s 147 - eligible reason to believe - No independent application of mind by AO - whether tangible material available with the AO to reopen the assessment? - HELD THAT:- Assessing Officer would admit that he has referred to the details mentioned in the annexure to the return filed by the assessee for the assessment year 2009-10. Thus, there was no independent material to come to the conclusion that there has been no full and true disclosure made by the assessee - the impugned proceedings are liable to be set aside for the sole reason that there was no tangible material available with the AO except that which was disclosed in the return of income filed by the petitioner for the relevant assessment year. This has been held to be not a sound foundation for exercising power under Section 147 read with Section 148 of the Act. This would be sufficient to set aside the impugned proceedings.
Whether the petitioner had made full and true disclosure with regard to the year of commencement of business? - Assessment proceedings are not a one way proceedings, even in the case of the assessee, the Assessing Officer while completing the regular assessment, called for details and documents which were furnished by the assessee - no hesitation to hold that the materials disclosed by the assessee were available with the Assessing Officer and it is from such material, the present impugned reopening proceedings have been initiated. Thus, the respondent had initiated proceedings purely based on existing information which was provided by the assessee in the course of original assessment and based on the return of income filed by the assessee for the relevant year. The petitioner before the Assessing Officer placed the profit and loss account and the balance sheet and the relevant annexures and notes to the financial statements. The notes are important material because it would disclose the details pertaining to various entries in the profit and loss account and balance sheet and explain the stand taken by the assessee. So far as the fixed assets is concerned in the balance sheet, the petitioner has indicated that the capital work is in progress.
In the absence of any new material in the hands of the Assessing Officer or discovery of some materials or a new insight after the completion of the original assessment, the question of reopening does not arise. The conclusion arrived by the Assessing Officer in the impugned order that merely the petitioner has produced books of account before the Assessing Officer and that there is no presumption that all the books were seen by the Assessing Officer is factually incorrect, as during the course of assessment proceedings, documents and evidences were called for from the assessee which were produced and after perusal of the same, the assessment was completed - impugned reopening proceedings is a clear case of change of opinion as there has been full and true disclosure by the assessee at the time of scrutiny assessment/original assessment. - Decided in favour of assessee.
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2015 (1) TMI 1462
Principles of natural justice - It is contended that as per the sale deed in question the land in question is Block No.258 and not Block No.135 and the entry came to be made without giving any opportunity of being to the petitioner - HELD THAT:- The proceedings are remanded for its reconsideration to respondent No.3 Mamlatdar, who shall give an opportunity of being heard to the petitioner as well as the private respondent Nos.4 to 6 and after considering the submissions, if any, respondent No.3 Mamlatdar shall pass appropriate orders.
Petition allowed by way of remand.
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2015 (1) TMI 1461
Depreciation related to Multi Metal Project - Disallowance of claim as project not actually used in year - Assessee's claim is that even though machines in the Multi Metal Project were not actually used during the year, still claim of depreciation is allowable since the machineries were put in a condition ready to use - CIT-A deleted disallowance - HELD THAT:- CIT(A) has followed its decision for A.Y. 1997-98 to 2000-01 and Tribunal in [2013 (9) TMI 520 - ITAT, AHMEDABAD] has decided the similar issue in favour of assessee - so following the same reasoning, we are not inclined to interfere in the finding of CIT(A) who has deleted the disallowance on account of depreciation related to Multi Metal Project.
Disallowance on account of prior period charges - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] A.O. has not given this finding that the expense did not crystelise during the present year. Therefore, in our considered opinion, this fact has to be brought out on record as to whether the expenses in question have crystalised during this year and if the assessee is able to do so, no disallowance should be made. The A.O. should pass necessary order as per law.
Disallowance of alternative claim of assessee to tax only interest portion of lease rental by disallowance of depreciation on assets leased to Gujarat State Road Transport Corporation ("GSRTC') - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] we are not inclined to interfere in the finding of CIT(A), who has directed the Assessing Officer to tax the interest portion out of lease rentals offered as income by assessee. Same is uphold.
Disallowance u/s 14A - HELD THAT:- No disallowance of interest expenses is required because revenue is expected to establish a nexus between interest bearing funds borrowed and these invested by the assessee. In such situation, disallowance u/s. 14A of Act is not justified. Assessing Officer is directed accordingly. Accordingly appeal of revenue on this issue is dismissed.
Disallowance being expenditure of lignite project at Mata no Madh holding it to be preoperative expenses - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] issue decided in favour of assessee.
Expenditure on power project at Akri Mota and further rejecting the claim of interest and financial charges forming part of total expenditure being not allowable u/s. 36(1)(iii) - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] borrowed funds were not used for setting up of a new unit of an existing running business but it was setting up of a new unit for production of an altogether new product i.e. power whereas the existing business of the assessee was production of lignite. Since this aspect is not fulfilled in the present case, even interest expenditure is not allowable in the present case u/s. 36(1)(iii) because in the present case, the product to be manufactured by the new unit is an altogether new product.
Facts being similar, so following the same reasoning, we are not inclined to interfere in the order of CIT(A) who has held that in view of admitted factual position that Akri Mota Power project is not extension of its existing business. This is the first power project being put by assessee. It is undisputed that assessee did not have any business of power generate in earlier. In the light of above, factual legal discussion has been done in above assessee's appeal, we are not inclined to interfere in the finding of CIT(A) who has confirmed the disallowance - Decided against assessee.
Disallowance being salary to staff at residence of Chairman - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] disallowance is not justified. If the expenditure is incurred in violation of the guidelines of Government of Gujarat and against Article 192 of the assessee corporation then the remedy lies somewhere else and action can be taken as per law against the person responsible for such violation but this cannot be the basis for making disallowance of expenses without proving that it is not for the purpose of assessee's business. This is not the claim of the revenue that this expenditure is not for the purpose of business and therefore, this disallowance is deleted. This ground of the assessee is allowed.
Addition of miscellaneous income of Assessee's claim was miscellaneous income should be set off against expenditure - HELD THAT:- In the present case, we find that when the A.O. made this addition, there is no discussion as to whether these two incomes were directly connected or incidental to construction of plant by the assessee or not. In the order of Ld. CIT(A) also, there is no finding on this aspect of the matter. Before us also, although reliance was placed by the Ld. A.R. on these two judgements of Hon'ble Apex Court BONGAIGAON REFINERY [2001 (7) TMI 4 - SUPREME COURT] and BOKARO STEEL LIMITED [1998 (12) TMI 4 - SUPREME COURT] but this fact is not available on record as to whether the income in question were directly connected and incidental to construction of plant by the assessee or not. Under these facts, and in the interest of justice, we feel that this issue should go back to the file of the A.O. for a fresh decision.
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