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Showing 41 to 60 of 1843 Records
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2017 (1) TMI 1808
Addition as Prior Period Expenditure - assessee is following mercantile system of accounting, the expenditure relating to prior period is not allowable in the current year - Prior Period Income was shown on account of excess interest as income on FDR - assessee submitted that out of Prior Period Expenses FBT expenses are not allowable expenses and this is not expenditure. Balance amount are the expenses received, have arisen, sanction, could not be estimated accurately in the previous year and have been paid during the year under consideration, hence, allowable expenditure
HELD THAT:- Assessee did not argue with regard to Prior Period Expenses. In the absence of any argument and any challenge to the findings of authorities below, no interference is called for on this matter. The addition is, therefore, confirmed.
Remaining addition CIT(Appeals) found from the submissions of the assessee that the claim of the assessee is based on the fact that in earlier years, the income from FDR was shown excessive, therefore, excess income declared in the earlier year was claimed as expenditure in assessment year under appeal - As admitted that assessee has not incurred any expenditure in this year on this amount and he was not able to satisfy as to how the excess income shown in earlier year can be claimed as expenditure in the current year. He has also not been able to satisfy as to under which provision of law the assessee shall be entitled for deduction on account of excess income shown in preceding assessment year.
CIT(Appeals) was, therefore, justified in holding that in case any income has been shown in excess in any earlier year, the only reedy for the same is by revising the return for the said year. There is no provision under Income Tax Act to support the explanation of the assessee that such excess income can be claimed as expenditure in subsequent year.
As assessee submitted that since assessee has no remedy now, therefore, assessee made a claim of reduction of the income by claiming it as expenditure. The submission of assessee is without substance and has no merit at all. Appeal of the assessee dismissed.
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2017 (1) TMI 1807
Peaceful possession and enjoyment of the suit property by the respondent nos.1 and 2 - jurisdiction under Order XIV Rule 2 of the CPC. - HELD THAT:- A perusal of the plaint filed by the respondent nos.1 and 2 filed before the learned trial Judge after disposal of the special civil suit filed by them indicates that it was the case of the respondent nos.1 and 2 that the suit was filed pursuant to the liberty granted by the Supreme Court thereby granting liberty to the Civil Court to decide the legality, correctness and propriety of the order dated 5th September 2008 passed by the Collector. The averments made in the plaint indicates that the respondent nos.1 and 2 have applied for declaration that they are in possession of and/or are the permanent holders or occupants of the suit property and has a right to deal with and/or hold and/or to develop and/or to use and enjoy the suit property in any manner without recourse to the appellant (original defendant no.1).
There is no dispute that during the pendency of these appeals from 2013 till 10th October 2016, there was no ad-interim relief in these appeals. On 10th October 2016, learned senior counsel for the respondent no.1 had made a statement before this Court that till the next date, the respondent no.1 would not proceed with the pending suits and counter claim therein before the learned trial Judge between the parties. There was no other ad-interim injunction granted by this Court in these appeals in favour of the appellant - There is no dispute that during the pendency of these appeals, the learned trial Judge has already framed several issues on 13th June 2016 under Order XIV Rule 2 of the CPC. On 6th October 2016, the appellant itself had made an application for recast of the issue framed by the learned trial Judge on 13th June 2016 and has suggested twelve issues including the issue of limitation and also the issue of jurisdiction of the learned trial Judge to entertain, try and dispose of the suit in its present form in view of Section 158 of the Maharashtra Land Revenue Code, 1966.
This Court has to consider whether at this stage, when the issues under Order XIV Rule 2 of the CPC having already framed by the learned trial Judge including the issue of jurisdiction as raised by the appellant in the written statement and the appellant already having made an application on 16th October 2016 unconditionally for recast of some of the issues by suggesting additional issues and the learned trial Judge already having directed the respondent nos.1 and 2 to file the list of witnesses, this Court can put the clock back and set aside the impugned order passed by the learned trial Judge granting interim relief. It is not in dispute that no ad-interim reliefs are granted by this Court in these four appeals and other connected four appeals.
It would be in the interest of justice that in view of there being no ad-interim relief granted by this Court in these appeals in last three years and the learned trial Judge already having framed issues under Order XIV Rule 2 of the CPC, the submissions now belatedly urged by the appellant cannot be entertained at this stage - the purpose and object of Section 9A of the CPC is to decide the issue of jurisdiction once raised expeditiously and before deciding the interim application finally and not to adjourn the said issue for determination along with the suit is with a view to expedite the hearing of such jurisdictional issue at the initial stage.
There is no substance in the issue of jurisdiction raised by the appellant at this stage - the order rejecting the interim application filed by the appellant is set aside - the matter remanded back to the learned trial Judge for deciding the application under Section 9A of the CPC at this stage.
Appeal disposed off.
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2017 (1) TMI 1806
Fee for Technical Service (“FTS”) - treating the reimbursements received from various customers as income - Contention of Appellant that the reimbursements received by the Appellant do not quality as income under the Act being pure reimbursements that do not contain mark up - HELD THAT:- The assessee has given the details of the reimbursement of expenses in detail - There is a mention that the company has received the fee as well as the reimbursement of expenses - The travel within India is also to be reimbursed separately and is not included in the reimbursement cap of USD 350,000. The interpretation of Section 9(1)(vii) of the Income-tax Act along with Article 13 of DTAA between India & UK clearly mention that reimbursement charges/expenses will not be considered as fees for Technical Services. CIT(A) has overlooked these aspect. Thus, this ground No. 2 is allowed for both Assessment Years.
Exemption for introductory educational programmes/workshops - HELD THAT:- Assessee is not an educational institution or teaching in an educational institute - The consideration was in the nature of Fee for Technical Services only. Thus, the Assessing Officer was rightly made and addition which was confirmed by the CIT(A). There is no need to interfere with the order of the CIT(A) in respect of this issue. Ground No. 3 for A.Y. 2006-07 is dismissed.
Applicability of Section 44B and 44BB of the Act were not at all the issues before the CIT(A) and was never part of the Assessment Order. Therefore, the judgments relied upon by the CIT(A) are not relevant at all to the present case.
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2017 (1) TMI 1805
Major shareholder of petitioner company - HELD THAT:- The AAIFR has in the impugned order, made it clear that the issue of whether VIL is a major share holder of the petitioner company is the subject matter of a suit in this High Court and the issue is yet to be decided. It is not for the BIFR or AAIFR to adjudicate this issue. The suit has since been transferred to the Saket District Court. The impugned order does not call for interference under Article 226 of the Constitution of India. In any case, with the enforcement of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 w.e.f. 01.12.2016, the writ petition has become infructuous and the same is dismissed.
Petition disposed off.
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2017 (1) TMI 1804
Seeking grant of anticipatory bail - forgery - alleged that the Directors have committed fraud adopting illegal practices for exchange of old high value denomination notes of Rs.500/- & Rs.1,000/- after demonetisation by the Government of India - HELD THAT:- In the present case on hand, the petitioners filed petition and obtained interim order from the Court not to arrest them. This Court directed them to appear before the Investigating Agency, fixing specific date and time, but the Government Pleader for Home before the Court complained that they are not cooperating to complete the investigation. Thereby, the petition was disposed of with a specific direction to follow the procedure under Section 41-A. Even in the present petition, Justice Suresh Kumar Kait when the matter was heard, granted interim anticipatory bail for the time being. But, during hearing, the learned Public Prosecutor complained that the petitioners are not cooperating for completion of investigation - the Court has to strike balance between the fundamental right and individual liberty guaranteed under Article 21 of Constitution of India and societal interest and such discretion to grant anticipatory bail under Section 438 Cr.P.C has to be exercised in exceptional circumstances where the Court satisfied that the petitioners did commit no offence prima facie and that there is no possibility of interfering with the further investigation or fleeing from justice, so also the seriousness of the crime.
In the present facts, the petitioners committed a serious offences, the total amount involved in the crime is more than Rs.110 crores by allegedly forging the signatures of 5200 customers within a span of 3 ½ hours, that too during night time. I am unable to comprehend such situation where 5200 customers transacted business worth more than Rs.110 crores during night time within a span of 3 ½ hours. It is highly improbable in ordinary course of events and even obtaining signatures of 5200 customers on vouchers and receipts, may take days together, but the petitioners by their ability allegedly obtained signatures 5200 customers and transacted business more than Rs.110 crores and that too paid advance for purchase of bullion in future. Whether the petitioners delivered gold to the customers in pursuance of alleged receipt of cash is to be enquired into, atleast to accept their contention.
In the present case also, the observations made in STATE OF GUJARAT VERSUS SHRI MOHANLAL JITAMALJI PORWAL AND ANOTHER [1987 (3) TMI 111 - SUPREME COURT] case would apply directly for the reason that the demonetization of a high valued currency notes of Rs.500/- & Rs.1000/- was announced at 8:00 PM on 08.11.2016. But, within half an hour, the petitioners started creating various documents and completed creation of 5200 documents as if they transacted business within 3 ½ hours. It is impossible in regular course of business to count such huge cash of Rs.110 crores either manually or by machines, besides preparing receipts and vouchers and obtaining the signatures of various customers who are 5200 in number.
When custodial interrogation is required, granting pre-arrest bail would have its own impact on the said interrogation, as the petitioners would be guarded with an order of bail and such grant of anticipatory bail would impede the very purpose of custodial interrogation and the said interrogation would remain as a mere ritual and it would be difficult for the Investigating Agency to unearth the said serious fraud against the State and it would directly effect the society at large.
It is difficult to exercise my discretion to grant pre-arrest bail for the following reasons:
1. There is prima facie material against the petitioners to conclude that they committed offences punishable under Sections 468, 471, 477(A), 109, 120-B r/w 34 I.P.C.
2. The entire transactions are based on the receipts and vouchers issued to various customers who are 5200 in number and those vouchers or bills are computer generated and in case, the petitioners are protected from pre-arrest by granting anticipatory bail, it would be difficult to find out the details of those customers, so as to find truth in the transactions, since there is a possibility of influencing those witnesses and tampering the evidence.
There are no ground to enlarge the petitioners granting anticipatory bail to the petitioners in the Criminal Petition in the event of their arrest in relation to Crime of Central Crime Station, Hyderabad, for the offences punishable under Sections 420, 468, 471, 474, 477(A), 201, 212, 109, 120-B r/w 34 I.P.C and consequently, all the criminal petitions are liable to be dismissed.
Petition dismissed.
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2017 (1) TMI 1803
Dishonor of Cheque - determination of the age of ink - time barred cheque or not - HELD THAT:- The lower Court concluded relying upon from the observations laid down by the Punjab and Haryana High Court in Yash Pal v. Kartar Singh [2003 (5) TMI 536 - PUNJAB AND HARYANA HIGH COURT] held that age of the ink cannot be determined by expert and from the Single judge expression of this Court in Kambala Nageswara Rao v. Kesana Balakrishna [2013 (11) TMI 1803 - ANDHRA PRADESH HIGH COURT] that mere determination of age of ink, even if there exists any facility for that purpose; cannot, by itself, determine the age of the signature and thereby no purpose be served by sending the disputed cheques which contain the admitted signatures of the accused/petitioner to expert.
Coming to the aspect of age of ink and writings can be determined and if so done can be admitted in evidence, the counsel for the revision petitioner submits that the age of the ink and writings can be determined as per catena of expressions and if at all determined whether that can be a basis or not is a matter of appreciation of evidence with reference to the reasons assigned in the opinion of the expert. The learned counsel for the 2nd respondent while supporting the order of the lower Court contends contra.
The time and place of execution of promissory note in dispute including as to difference in ink, opinion of handwriting expert can be sought for under Section 45 of the Act and such opinion is not totally irrelevant for adjudication of the dispute from the opinion sought for determining the age of the disputed handwriting, it is crystal clear of the handwriting as to the year of writing can be given by expert opinion is the conclusion before the Supreme Court in its approving to consider way back in 1964 and referring to it way back in 1994 this Court held opinion as to age of writing or signature can be sought from the expert. It is no doubt in relation to a civil dispute.
The Apex Court in T. Nagappa [2008 (4) TMI 789 - SUPREME COURT] in a cheque bounce case on the application of the accused to send the disputed signature on the cheque to determine the age of his signature observed that when it is the contention of the accused that complainant has misused the cheque obtained and even in case where presumption under Section 118 r/w 139 of the Negotiable Instruments Act can be drawn in favour of the complainant, the accused must be granted an opportunity for adducing evidence not rebuttedly there of as to liability placed reliance on the accused and he must be given opportunity to discharge it by holding so the impugned order of the High Court was set aside and it was held that adducing evidence in support of defence is a valuable right and denial of that right means denial of fair trial and it was also pointed out that, it essential that rules of procedure are to ensure justice should be scrupulously followed and the court much less in showing there is no prejudice to them.
The impugned order of the lower Court is liable to be set aside for the same is unsustainable. No doubt there from the revision can be straight away allowed by setting aside the impugned order of the lower court and by allowing the same to send Exs. P1 and P2 to determine the age of the writing and age of the ink respectively with reasons for the same in the opinion to give by the said Forensic Laboratory, Hyderabad at Red Hills - the Criminal Revision Case is allowed to entertain fresh application being filed by petitioner/accused before the lower Court to consider and pass orders, pursuant to the above observations and conclusions.
Petition disposed off.
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2017 (1) TMI 1802
Smuggling - Cocaine - combination of Paracetamol with cocaine - offence under Section 21(c) of the NDPS Act, 1985 - HELD THAT:- The investigation since complete, there is no impediment to allow this petition. The petition is allowed. Petitioner is enlarged on bail, subject to conditions imposed.
Application allowed.
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2017 (1) TMI 1801
Appeals decided ex parte - assessee has pleaded that there was no representation from the assessee as the notice for date of hearing was not served - HELD THAT:- Upon hearing both the counsel and perusing the records find that interest of justice will be served if the aforesaid exparte order is recalled, to enable the assessee to represent the case.
Accordingly recall the aforesaid order of the Tribunal. Registry is directed to fix the case for hearing on 17-01-2017. The date of hearing has been duly communicated to both the parties in the open court.
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2017 (1) TMI 1800
Validity of communication dated 5.1.2017 issued by the Chief Operating Officer of the 2nd respondent - non-grant of permission to continue the warehousing activity being carried out by the Corporation - non-issuance of gate passes for transportation and storage of food grains to and from the warehouse - Rule 11(5) and Rule 11(7) of the SEZ Rules - HELD THAT:- In the communication dated 5th January 2007, reference is made to Rule 11(5) and Rule 11(7) of the SEZ Rules, applicability or otherwise of the said Rules is a matter which is required to be considered in the petition pending before the learned single Judge. As it is the case of the appellant that since 2005, the appellant- Corporation is using the leased area after making constructions for storage and for transportation of food grains, if abruptly they are stopped from using the same, public interest will suffer. In view of the same, by way of ad-interim relief, the respondents are directed to allow the appellant-Corporation to carry out the activity of storing and transportation of their commodities in and from the warehouse. The respondents are further directed to issue necessary gate passes for transportation till the next date of hearing.
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2017 (1) TMI 1799
Seeking grant of bail - bail sought on medical grounds - no control on urination - HELD THAT:- The issue that boils down in respect of the medical condition of the petitioner is that, he has difficulty in urination, emerging out of a condition described as prostatomegaly. The present condition, is not such a serious condition, as would entail the transfer of the petitioner from one jail to another, or to require him to be subjected to any kind of specialized treatment, at some different station. The medical condition of the petitioner has been described as stable, and as such, there is no question of extending him the concession of bail on medical grounds.
There are no justification, to interfere with, or modify the order passed by this Court - petition dismissed.
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2017 (1) TMI 1798
Estimation of income - Bogus purchases - HELD THAT:- We find that it is not the case of the Revenue that the NP rate + VAT totals to 12.5%. Hon’ble Gujarat High Court approved the said 12.5% in the case of Simit P Seth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] considering the nature of business activities which falls in the real estate. The applicable VAT rate is also different in State of Gujarat. Accordingly, we direct the Assessing Officer to restrict the disallowance to a round figure of 7%. VAT figures are considered here for the reason that the alleged bogus purchases from the grey market is done without sale bills causing loss to the State Government exchequer. The presumption is that the alleged purchases of materials is done without bills. Accordingly, we confirm the addition to the extent of 7% of the said purchases of Rs. 53.16 lakhs. Addition should be restricted. Accordingly, AO is directed. Thus, the ground is partly allowed.
Addition on account of commission - argument of the assessee that CIT (A) enhanced assessment without giving a notice or an opportunity to the assessee - HELD THAT:- This issue is not settled and the additions of this kind are unsustainable in law in view of the judgments in the cases of Bikram Singh [2016 (4) TMI 822 - ITAT DELHI] , Apex Court judgment in the case of CIT vs. Shapoorji Pallonji Mistry [1962 (2) TMI 12 - SUPREME COURT] and CIT vs. Rai Bahadur Hardutroy Motilal Chamania [1967 (4) TMI 8 - SUPREME COURT] - Admittedly, the CIT (A) made this enhancement of assessment without granting opportunity to the assessee. Effect of this failure results in deletion of the enhancement. Accordingly, this part of the ground is allowed in favour of the assessee.
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2017 (1) TMI 1797
Validity of assessment order - Principles of natural justice - challenge to SCN was rejected by this court, giving liberty to the petitioner to participate in the proceedings and directing the Assessing Officer to pass orders after giving sufficient opportunity - HELD THAT:- The challenge was rejected by this court by an order dated 23.01.2017, giving liberty to the petitioner to participate in the proceedings.
But unfortunately, the respondents completed the assessment and passed the order on the very next day, namely, on 24.01.2017. Therefore, contending that the liberty granted by this court has been rendered nugatory, the petitioner ha s come up with the present writ petition - In the order passed by this court on 23.01.2017 rejecting the challenge to the show cause notice, the time is granted to the petitioner to submit their objections and the Assessing Officer is directed to consider the same, giving an opportunity of personal hearing and then pass final orders. The said order could not become a paper order.
The impugned assessment order is liable to be set aside - Petition allowed.
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2017 (1) TMI 1796
Revision u/s 263 by CIT - no permission was taken by the Assessing officer from the JCIT u/s 153D before passing the assessment order u/s 153C - HELD THAT:- In the case in hand the permission before passing the original assessment u/s 153A was duly taken by the Assessing officer from the competent authority. In our view, the permission u/s 153 D was required to assume jurisdiction to pass an order of assessment u/s 153A of the Act. Once the permission was taken, the jurisdiction was assumed by the Assessing officer and the assessment order was passed, which, however, has been subsequently set aside by the CIT for framing the same afresh. In these circumstances, it cannot be said that the AO had lost jurisdiction to frame the assessment afresh in compliance of the orders of the Ld. CIT(A) passed u/s 263 - Rather the Assessing officer was bound to frame the assessment afresh until and unless the said order of the Commissioner has been stayed or set aside by any higher Forum. Hence, we are of the view that the Assessing officer was not required to take fresh approval of the JCIT before passing the fresh order in compliance of the orders of the Commissioner of Income Tax. The impugned orders of the Ld. CIT(A) are, thus, not sustainable in the eyes of law.
The matter in both the appeals is restored to the file of the CIT(A) with a direction to decide the case on merits irrespective of the fact that whether the permission u/s 153D was taken or not before passing the fresh assessment order by the Assessing officer as per the directions of the Ld. CIT. - Appeal of revenue allowed for statistical purposes.
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2017 (1) TMI 1795
Unexplained cash receipt - CIT-A deleted the addition admitting additional evidences - whether admission of addition evidence tantamount to violation of rule 46A? - AO mentioned that except the certificate from Mr. Japuria Infrastructure Developers Private Limited, the assessee did not produce any evidence for establishing that details seized during the course of search action in reference did not belong to the assessee - HELD THAT:- CIT-A rejected the above contention of the Assessing Officer stating that it was not the correct statement of facts - we find that the CIT (Appeals) has not given any reasons as how it was not correct statement of facts. He neither brought on record any evidence in support that those documents were filed before the AO nor confronted those documents to the AO - Further, we find that before us the learned counsel of the assessee referred to the letter dated 25th of March 2013 of the Authorized Representative the assessee , which is claimed to have containing all the said documents and filed before the Assessing Officer.
On perusal of the said letter, we find that it is not containing any evidence of acknowledgement of the letter by the Assessing Officer or his office and can’t prove conclusively that those documents were filed before the Assessing Officer. In such circumstances, following the principles of Natural Justice and Income-tax Rules, Commissioner of Income-tax (Appeals) was required to direct the assessee for filing those documents as additional evidences and those documents should have been sent to the Assessing Officer for his comments, but he did not do so.
We feel it appropriate to restore the matter to the file of learned Commissioner of Income-tax (Appeals) to decide the issue afresh with the direction to consider the documents, which were not produced before the Assessing Office but filed by the assessee before him, in accordance with the Rule 46A of the Income-tax Rules, 1962 and accordingly, decide the issue of addition in accordance with law. Revenue appeal allowed for statistical purposes.
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2017 (1) TMI 1794
Deduction u/s 80IB - Denial of deduction as house project had not been completed by 31/03/2012, thus violating the conditions provided in clause (a) to section 80IB(10) - CIT-A allowed the deduction - Non-completion of project, namely building “C” and therefore denying the deduction - HELD THAT:- We find that ld.CIT(A) has given a finding that “Building C” could not be completed because the required FSI for construction was not sanctioned / allowed by PMC and that no pending compliance remained on the part of the assessee. He has further noted that when the compliance of provision had become impossible on the part of the assessee the claim of deduction could not be denied and for which he placed reliance on the decision of Pune Tribunal in the case of M/s. Ramsukh Properties [2012 (12) TMI 360 - ITAT PUNE]. He had also relied on decision of Pune Tribunal in the case of ITO Vs. Satyanarayan Ramswaroop Agarwal [2014 (4) TMI 1132 - ITAT PUNE] and other decisions. He has further given a finding that the construction of the ‘Park Land’ which was sanctioned on 04.08.2006 was subsequently revised and has been totally completed before 31.03.2012 and in such a situation, the claim of deduction u/s 80IB(10) of the assessee was allowable on a proportionate basis.
Violation of provisions of the Act on account of the area of 5 Row Houses being in excess of 1500 Sq.Ft. - CIT-A has given a finding that Government Approved Valuer had taken the outer measurement of the Row Houses and calculated the area which is contrary to the definition contained in Sec.80IB(14)(a). He has further noticed that the Authorized Valuer had added the area of car porch, terrace above porch while measuring the area of Row Houses and if the terrace area is excluded from calculation of area, the total area of the units do not exceed 1500 Sq.Ft. For excluding the area of terrace, Ld. CIT(A) had relied on the decisions of M/s. Commonwealth Developers CD Fountain Head [2014 (4) TMI 122 - BOMBAY HIGH COURT] and the decision of CIT Vs. Mahalakshmi Housing [2012 (11) TMI 1121 - MADRAS HIGH COURT] and other Tribunal decisions.
Before us Revenue has not placed any material on record to controvert the findings of ld. CIT(A) nor has placed any contrary binding decision in its support. In view of the aforesaid facts, we find no reason to interfere with the order of ld. CIT(A). Thus, the grounds of the Revenue are dismissed.
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2017 (1) TMI 1793
Benami Transaction - whether the claim is on the basis of 'Benami Transaction' or not will be determined after completion of evidence? - HELD THAT:- As relying on ANAND KUMAR AND ANOTHER VERSUS VIJAY KUMAR [2012 (4) TMI 773 - MADHYA PRADESH HIGH COURT] it is safe to deduce that the submission of the respondent that, the transaction referred to in the plaint occurred in the year 1971 and 1972 and therefore, the Act of 1988 will not defeat the same, is ill-founded as the prohibition under the Act bars any claim or suit or action on the basis of a 'Benami Transaction'. Therefore what is relevant, the date on which the suit has been filed and not the date of transaction itself which may be prior to coming into force of the Act of 1988 but the suit has been filed after introduction of the Act of 1988. Further, upon perusal of the plaint, this Court has no hesitation in concluding that the averments in the plaint referred to the 'Benami Transaction' as the basis of claiming title. Thus, the plaint deserves to be rejected in terms of under Order 7, Rule 11, Civil Procedure Code.
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2017 (1) TMI 1792
Violation of Section 276 CC - complaint is filed under Section 200 of the Code of Criminal Procedure after obtaining prior sanction from the Commissioner of Income Tax in accordance with the provisions of Section 279 of the Income Tax Act - notice came to be issued to the petitioner under Section 153 of the IT Act calling upon him to file his return and in spite of the notice, the accused had not filed his return in response thereto - HELD THAT:- The fact that the petitioner had already filed his return of income as on the date of the order of sanction, which had gone unnoticed, is not in dispute and the learned counsel for the respondent would endorse the same. The tenor of Section 276 CC of the IT Act contemplates that if a person has failed to furnish the return of income in time, it is then that the rigour of the section would be attracted. For, if the return of income had been filed belatedly or otherwise, the section cannot apply at all and therefore, the prosecution ranged against the petitioner is vitiated. Consequently, the petition would have to be allowed.
It is also to be noticed that the section certainly reads that if the returns are not filed in due time, the rigour would be attracted. But, the fact remains that in the present case on hand, the returns are accepted and assessments are carried out, which would not be the same as holding that the returns filed belatedly have been held to have been nonest and therefore, the authorities have proceeded thereupon. This would make a difference to the situation and therefore, the contention that the section which prescribes that if the assessee fails to file the return within the time due, the rigour would be attracted, would stand diluted by virtue of the returns having been accepted and assessments having been carried out therein.
Consequently, the prosecution initiated against the petitioners in terms of Section 276 CC of the IT Act cannot be sustained. The entire proceedings quashed.
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2017 (1) TMI 1791
Possession over suit property - Decree of permanent injunction restraining defendants from interfering with plaintiffs' possession over suit property - whether the plaintiffs prove that they are the owners in possession of the suit property? - whether the defendants obstructed to their possession and about the entitlement of plaintiffs to injunction? - HELD THAT:- The trial court which had firsthand experience of judging the evidence by the witnesses and the contemporaneous revenue and other record while sale deeds were effected which favoured plaintiffs, as has been made available by the parties before the court, has adjudged that the plaintiffs have a stronger case than the one pleaded by the defendants and has granted the decree in their favour. The appellate court, also on appreciation of evidence, as aforesaid, has reached to a conclusion that the plaintiffs have a better case than the defendants and, as such, confirmed the decree, finding that the evidence would show plaintiffs to be better placed seeking preventive relief especially gauging the same by that the sale deeds had not been questioned till date.
Appeal dismissed.
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2017 (1) TMI 1790
Dishonor of Cheque - vicarious liability of a Director - whether basic averments that, at the time the offence was committed, director was incharge of and was responsible for the conduct of the business of the company are suffice or specific averments showing as to how and in what manner the Director was responsible for the conduct of the business of the company, must also be made in the complaint? - HELD THAT:- The position under Section 141 of the Act can be summarized thus:
(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix 'Managing' to the word 'Director' makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company.
(ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141.
(iii) In the case of a Director, Secretary or Manager (as defined in Section 2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of Section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section.
(iv) Other officers of a company cannot be made liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, be averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence."
Thus, it can be concluded that the nature and sufficiency of complaint allegations in respect of an offence under Section 141 of N.I. Act depend on the category of persons alleged i.e. 141(1) or 141(2).
If it is held, basic averments are sufficient, whether the complainants and their sworn affidavits did contain such basic averments and whether the petitioner/A3 could by unimpeachable material demonstrate that the basic averments pleaded were false to the core to deserve quashing of the proceedings? - HELD THAT:- Since basic averments are made under Section 141(1) in terms of KK. AHUJA VERSUS VK. VORA [2009 (7) TMI 758 - SUPREME COURT], the Magistrate has rightly taken cognizance against the accused including petitioner-A3. It is argued by the petitioner that she was only a non-executive Director between 7.12.2007 and 23.11.2012 and she was not in-charge of and responsible for the day-to-day business activities of A1-company and she did not know about the issuance and dishonour of cheque. The petitioner sought to produce a copy of Form-32 wherein she was allegedly shown as non-executive Director. Refuting the same, the respondent too sought to produce copy of Form-32 which according to him, would show the petitioner was a Director. He also sought to produce some letters allegedly written by the petitioner to some trading parties in the capacity of Chairman to show that she was actively engaged in the day-to-day business operations. It must be mentioned that neither party could produce unimpeachable and uncontrovertible evidence beyond doubt and this Court in a petition under Section 482 Cr.P.C. cannot make in depth enquiry on a question of fact which can be determined only after full-fledged trial. The parties are at liberty to establish their individual stand during trial and the trial Courts shall decide the cases on merits.
The criminal petitions are dismissed.
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2017 (1) TMI 1789
Ex-parte order or not - Prayer to set aside/recall ex-parte order - it is alleged that the order was obtained by perpetrating fraud, deceit and suppressing material facts from the Tribunal - violation of principles of natural justice - HELD THAT:- It is crystal clear that without giving any notice to the original petitioner and without serving copy of the application to the petitioner in a pending matter, interim application was moved and order was passed on it.
It is also pertinent to refer to another aspect, that is the status quo order passed by the Company Law Board, Delhi Bench on July 9, 2015. It was a consent order. In that order, the original respondents are directed to maintain status quo over the shareholding and assets of the company, to maintain the board with the petitioner and the second respondent as directors, suspension of respondent No. 3 as director in the company until further orders. It is further ordered in that order that the respondent shall take the consent of the petitioner in relation to banking operations until further orders - Since in the impugned order dated November 22, 2016 there is no reference to the Company Law Board, Delhi Bench order dated July 9, 2015 it cannot be given any preference or precedence over the order dated July 9, 2015 on the ground that it is a latest one.
In view of the fact that no notice has been served upon the original petitioner and the impugned order was passed only after hearing respondent No. 2, it can only be called as an "ex-parte order" - In the petition, the original petitioner alleged about fraud, but there is no need to discuss that aspect on this application since the order itself is an ex-parte order.
This application is allowed setting aside the ex-parte order.
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