Disallowance u/s 40A(7)(b) - HELD THAT:- The co-ordinate Bench of this Tribunal in the immediately preceding assessment year in assessee’s own case restored this issue to the file of the Assessing Officer for adjudication afresh. Following the said order of this Tribunal, we restore this issue to the file of the Assessing Officer, who shall decide the issue afresh following the direction of the co-ordinate Bench [2013 (3) TMI 869 - ITAT CHENNAI]
Deduction u/s 10B - CIT-A directed recompute the deduction by excluding freight and clearing expenses and business development fee from export turnover and total turnover also - HELD THAT:- CIT-A correctly following the Special Bench decision in the case of ITO Vs. Sak Soft Ltd. (2009 (3) TMI 243 - ITAT MADRAS-D] directed the Assessing Officer to reduce the said amounts from the total turnover also for the purpose of computation of deduction under section 10A.
Disallowance u/s 14A r.w.r. 8D - As argued assessee has not earned any dividend income - HELD THAT:- On going through the decision of the co-ordinate Bench of this Tribunal in the case of M.Baskaran [2015 (3) TMI 192 - ITAT CHENNAI] we find that the issue in appeal is squarely covered by the said decision wherein the Tribunal held that when the assessee has not earned dividend income, disallowance under section 14A is not warranted.
Disallowance u/s 40A(9) - Substantial question of fact or law - HELD THAT:- The said order was assailed by filing an appeal which was partly allowed and as such the department as well as the assessee approached the tribunal by preferring the second appeal and the tribunal by means of order and judgment [2011 (6) TMI 900 - ITAT KOLKATA] allowed the appeal so preferred by the assessee and at the same time dismissed the departmental appeal.
The order so passed by the Income Tax Officer was assailed before us.
Being aggrieved thereof, the instant appeal has been preferred. We have gone through the records and we are of the opinion that no substantial question of law arises out of the orders so passed tribunal.
Correct head of income - treating the interest income as income from other sources and not business income - crux of arguments advanced by the Ld. Counsel for the assessee is that there was no deployment of surplus income and it was not an independent transaction de hors by business rather JV partner had kept it in the account - HELD THAT:- We note that Hon’ble Jurisdictional High Court in CIT Vs. Lok Holdings [2008 (1) TMI 365 - BOMBAY HIGH COURT] while coming to a particular decision distinguished the decision from Hon’ble Apex Court, pronounced in CIT Vs. Bokaro Steel Ltd. [1998 (12) TMI 4 - SUPREME COURT] and TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD [1997 (7) TMI 4 - SUPREME COURT] then held that accrued interest arises out of business activity is assessable as business income and not income from other sources. Identically, Hon’ble Jurisdictional High Court in the case of CIT vs. Indo Swiss Jewels Ltd and Another [2005 (9) TMI 47 - BOMBAY HIGH COURT] wherein amount was set apart for import of machinery was invested in short term intercorporate deposits. Such interest income was held to be assessable as business income. There are various decisions in an identical situation but the fact of each case has to be kept in juxtaposition before taking any decision.
Interest of income on the funds placed with banks - As assessee had neither started commercial production nor even trial production during the year under consideration and the funds were kept in banks from which interest was earned. In such a situation, it can be said that interest income was earned prior to starting of business, therefore, it cannot be said to be business income of the assessee and has to be assessed as income from other sources. Funds were available with the assessee before the same are invested in actual business activity, therefore, it can be concluded that such interest income is not incidental to the business activity of the assessee. There is further finding in the impugned order that in the present case the source of funds on which the interest was earned were not the business funds. It is not the case that business funds were kept in bank for a short duration before starting the business. The expression “derived from” is narrower in scope than the expression “attributable to” as was held in CIT Vs. Sterling Foods Ltd. [1999 (4) TMI 1 - SUPREME COURT], Pandyan Chemicals Ltd. [2003 (4) TMI 3 - SUPREME COURT] and Ashoka Leyland Ltd. [1996 (12) TMI 4 - SUPREME COURT].
So far as the expression derived from is concerned it must be understood as profit directly arising from business of the assessee and not incidental to it. The ratio laid down by Hon’ble Apex Court in the aforementioned cases, if applied by keeping them in juxtaposition with the facts of the present appeal, it can be said that the interest received from FDRs, can be treated as income from other sources only. If such interest is derived from actual conduct of the business or such interest is oozing out from the direct source and having proximate commercial connection between the interest earned and business of the assessee then it can be said to be ‘derived from’ the business of the assessee, therefore, it was rightly held to be income from other sources, because no direct nexus has been established by the assessee between the interest so received and business of the assessee, therefore, the interest earned on account of FDRs, kept with the banks is income from other sources as it has ‘no direct nexus’ with the business activity of the assessee.
Payment of foreign exchange gain - We note that the expenditure has not been claimed as deduction during the year by the assessee. We find that in the aforementioned case of Enron Oil & Gas India Ltd [2008 (9) TMI 3 - SUPREME COURT] it was held that the loss arising on account of foreign exchange transaction would be allowed as business loss and the gain has to be treated as business receipt. Section 42 of the Act for claiming deduction is a special provision itself. The section becomes operative when it is read with production sharing contract, therefore, the provisions of production sharing contract will prevail as the PSC is an independent accounting regime and a complete code by itself u/s 42(1)(c) for the purposes of computing profit & gains of any business consisting of extraction or production of mineral Oil etc. and allowance as specified in the agreement - And such allowances shall be computed and made in the manner specified in the agreement, the other provision of the said being deemed for this purposes to have been modified to the extent necessary to give effect to the terms of the agreement.
If the provision of the Act is analysed that it can be concluded that the production sharing contract is an independent accounting regime which includes tax treatment of cost, expenses, income, profit etc. it prescribes separate rule of accounting as it is a complete code by itself. Reference may be made to Joshi Technologies International Inc. Vs. Union of India [2013 (7) TMI 809 - DELHI HIGH COURT] - The additional benefits, apart from the normal allowance, admissible under other provisions of the Act is to be allowed as a deduction in computing the business profit of the assessee provided such allowances are specified in the agreement of the assessee entered into with the Central Government etc. and then the allowance shall be computed in the manner specified in the agreement. In the present appeal, neither such agreement was discussed before us nor there is a finding in the impugned finding, therefore, we set aside this issue to the file of the Ld. DRP to examine the facts and then decide the issue in accordance with law, therefore, this ground is allowed for statistical purposes. The assessee be given opportunity of being heard.
Claim of depreciation with respect to assets such as office equipment fixture and furniture etc used at the project office of the assessee - There is a finding in this impugned order that drilling activities has been started thus the claim of depreciation is a statutory allowance, it has to be allowed more specifically when the assessee is the owner of the asset which was used for business purposes. Since the asset was put to use and owned by the assessee, the depreciation has to be allowed.
Input tax credit - tax paid at the time of purchase of goods from their suppliers - whether amounts offered by way of discount through credit notes issued by the supplier of the goods, at a point in time subsequent to the sale of the goods to the petitioners, can be added to the sales turnover of the petitioners' by invoking the provisions of explanation VII to the definition of turnover under Section 2(iii) of the KVAT Act? - HELD THAT:- The essence of the scheme is that, whenever tax is paid by a dealer at the time of purchase of goods, he is entitled to take credit of the tax so paid and to set off the said tax amount against the output tax to be paid by him at the time when he sells the product. A variation of the input tax credit availed by him is called for only in a situation where, it is found that the tax paid by the supplier of the goods, of which credit was taken by the petitioner as input tax credit, is subsequently reduced on account of a refund granted to the supplier, of the tax initially paid by him. It follows that, in the absence of any claim for refund of tax paid by the supplier, the input tax claimed by the petitioners cannot be varied or modified, save in the situations mentioned in Section 11 of the KVAT Act, such as, for instance, where the goods in question are sold at a price lower than that at which they were purchased or when the goods are sold at a subsidised rate.
On a perusal of the notices and assessment orders that are impugned in these writ petitions, it is found that the assessing authorities have not examined the issue as required. The assessment orders impugned in these writ petitions are therefore vitiated by a non-application of mind and is therefore quashed. The respondent assessing authorities in all these writ petitions, are directed, to complete the assessment proceedings, initiated against the petitioners through the notices issued to them under Section 25(1) of the Act, by taking note of the observations in this judgment, and after granting the petitioners an opportunity of being heard in the matter.
Compulsory acquisition of lands for the Indian Army for its "Field Firing Range" in the year 1981 - grant of 15% developed residential land in lieu of compensation which, as perceived by the oustees, had been promised by the Urban Development Department of the State Government by its proclaimed policy dated 13.12.2001 - HELD THAT:- The Respondents have utterly failed to abide by a public policy upon which, the Appellant had altered their position and had suffered immense prejudice. The persistent denial to the Appellants of their right to the developed land in lieu of compensation and that too without any legally acceptable justification, has ensued in manifest injustice to the Appellants over the years. Neither have they been paid just compensation for the land acquired nor have they been provided with the developed land in place thereof, as assured. They are thus predominantly entitled for the remedial intervention of this Court to ensure fair, just, efficacious, tangible and consummate relief in realistic terms. If fairness is an indispensable and innate constituent of natural justice, this imperative indubitably has to inform as well the judicial remedy comprehended. In the overwhelming factual scenario, as obtains in the instant case, refusal to grant the relief to which they are entitled, would amount to perpetuation of gross illegality, unjustness and unfairness meted out to them. The textual facts demand an appropriate response of the judicial process to effectuate the guarantee of justice, engrafted in the preamble of the Constitution reinforced by the canons of equity.
The remedy indeed has to be commensurate to the cause and the prejudice suffered. The invocable judicial tools, predominantly in the form of a writ of mandamus, and the plentitude of the powers of constitutional courts, and more particularly, this Court Under Article 142 of the Constitution are assuredly the potential redressal aids in fact situations akin to the one in hand - A writ of mandamus is an extraordinary remedy and is intended to supply deficiencies in law and is thus discretionary in nature. The issuance of writ of mandamus pre-supposes a clear right of the applicant and unjustifiable failure of a duty imposed on an authority otherwise obliged in law to imperatively discharge the same.
As the nature and extent of the power indicates, there can be no straight jacket formula, for its exercise nor there can be any fetter thereto, it being plenary in nature. The invocation of this power is to reach injustice and redress the same, if it is not feasible otherwise to achieve this avowed objective. In doing so, this Court acts in its equity jurisdiction to balance the conflicting interests of the parties and advance the cause of administration of even handed justice. The purport and purpose of this power being justice oriented and guided by equitable principles, it chiefly aims at the enforcement of a public duty, if not forthcoming on legitimate justification ensuing in oppressive injustice, militating against the constitutional ordainment of equality before law and equal protection of laws enshrined in Article 14 of the Constitution of India and entrenched as are, among others, in the invaluable right to life envisioned in Article 21 of the Constitution of India.
The failure to discharge an obligatory duty defined by public policy without any justification in disregard thereto viewed in the context of the sacrosanct content of human rights in Article 300A is an inexcusable failure of the state to discharge its solemn constitutional obligation, the live purpose for its existence. The predominant facts herein, justifiably demand a fitting relief modelled by law, equity and good conscience. Thus, the elaborate preface.
The Appellants are entitled to be allotted their quota of 15% developed land in the terms of policy/circular dated 13.12.2001 in one or more available plots at Vidyadhar Nagar, Gokul Nagar, Truck Terminal and Vaishali Nagar as enumerated by them in their affidavit dated 17.8.2015. The Respondents are hereby directed to accommodate them accordingly.
The Respondents would allot the developed land as per policy decision dated 13.12.2001 to the Appellants at the places indicated hereinabove without fail and within a period of six weeks herefrom - the appeals are allowed.
Assessment in the name of company amalgamated - corporate death of an entity upon amalgamation - Amalgamation of two companies - Assessment to be made on which entity? - HELD THAT:- In view of the decision of this Court in Commissioner of Income Tax(Central-II) v. P.D. Associates (P) Ltd [2015 (7) TMI 1400 - DELHI HIGH COURT] no substantial question of law arises for determination by the Court in these appeals.
Addition u/s 68 - Addition of sum received by assessee trust as unsecured loan - onus to prove - CIT -A deleted the addition - HELD THAT:- Creditor has explained that the amount was withdrawn from Rajasthan bank Limited and same were deposited in union bank of India and then cheques were issued to the assessee trusts. These facts were also confirmed by AO in remand proceedings also. Now looking at the information that has been gathered by AO from ADIT is very simple which is available in case of every company and is also based on the information filed by those companies as per the Companies Act 1956. Therefore it is the same information which company has uploaded on the website of MCA and same information is supplied by the assessee and lender company to the AO.
On perusal of information received it does not suggest that the company is not in existence or the sources of the funds which are given as loan to the assessee trust are not proper in spite of the compliance made by lender by making himself available before AO for examination. It is also not important that whether the company is carrying on any business activity or not but what is important is that funds lent by that company are also shown in the balance sheet of the lender who is assessed to Income Tax - assessee has discharged its onus cast up on as per the provisions of section 68 by proving identity, creditworthiness and genuineness of the transaction and therefore we confirm the order of CIT (A) in deleting the addition - Decided against revenue.
Unexplained share application money - Information u/s 133(6) as received from the following parties - Proof of identity of the share applicants, their creditworthiness and genuineness of the transaction - HELD THAT:- In the present case the assessing officer himself has not doubted the identity in respect of all the share holders of the assessee company. Hence, the following the decision of the Hon’ble Co-ordinate bench in the case of M/s Agrawal Coal Corporation[2011 (10) TMI 496 - ITAT INDORE]the amount of share application money as received by the assessee requires to be accepted as genuine.
As regard share premium of ₹ 990/- Per share is concern, the assessee company is a big player in the Media segment and engaged in the Print and Boarding business. The assessee company was incorporated on 05-04-1989 and therefore having more than 20 years experience of this line of business. The assessee company declared total income in its books of account prior to depreciation was of ₹ 9995881/- as on 31.03.2008 and the same was increased to ₹ 12489838/- as on 31.03.2009. That considering the long standing in the business and huge profit the amount of share premium is duly justifiable. That in case of private limited company the amount of share premium is mutually decided between the Management of the company and share applicant. Hence, the issue in dispute should not be the amount of share premium but the identity of the share holders who has applied in the share application money of the assessee company.
Once the assessee has established the identity of the share holder in that case the amount of share premium is not an issue. If the assessing officer has not satisfied with the explanation of the share applicant, necessary addition is to be made in the hand of the share applicant but not in the case of the assessee.
That as regard the blank transfer deed duly signed by the share applicant as found during the course of survey. The assessing officer himself after being satisfied not taking any cognizance for the same. Since, by the time of assessment proceeding these transfer deed was not used by the assessee and therefore after the date of Annual General Meeting , old date transfer deed has no legal value.
Additional evidence filed before the Ld CIT[A] - department in this ground of appeal has challenged the Rule 46A of the Income Tax Rules - HELD THAT:- During the course of hearing, we find that the assessee has submitted all the documentary evidence before the Assessing Officer and the ld. DR has not disputed this fact, therefore, we are of the view that this departmental ground deserves to be dismissed. We dismiss the same.
Seeking stay against the balance outstanding demand - assessee has already paid 50% of the total demand - AO has already granted stay against recovery after payment of 50% of total demand but stay granted by the AO is only till the disposal of the appeal or 29/02/2016 - assessee’s grievance is that if the assessee’s appeal is not disposed of by 29/02/2016, then there is an apprehension for taking a coercive action by AO for recovery of balance of 50% - HELD THAT:- Since assessee has already paid 50% of total demand and AO himself has stayed recovery till disposal or 29/02/2016, therefore, assessee has made out a good prima facie case for stay of balance outstanding demand till disposal of appeal or for a period of 180 days whichever is earlier. Accordingly, balance outstanding payment which is 50% of total demand is hereby stay for a period of 180 days or till disposal of appeal of assessee whichever is earlier. Appeal of the assessee is already fixed for hearing on 05/01/2016 which may be listed in the category of stay granted cases out-of-turn hearing. In the result, stay petition is allowed.
Appointment of Local Commissioners - It is argued that the defendants are manufacturing counterfeit products by blatantly using the trademark and the logo of the plaintiffs - Rule 9 CPC - HELD THAT:- The books of account to be signed by the Local Commissioners will pertain to the stock of goods with the defendants bearing the trademark PUMA and the Form Strip Logo of the plaintiffs and also with respect to any other infringing materials with the defendants. The books of account would be those as pertain to the financial figures with respect to production and sales of the defendants.
Each of the Local Commissioners will be paid fees of ₹ 75,000/- plus out of pocket expenses - the concerned SHO/Head of the police station of the local areas where the two premises which have to be inspected by the Local Commissioners are situated, will give necessary police assistance to the Local Commissioners and it will be the personal responsibility of the concerned SHO/Head of the police station to maintain complete confidentiality of the present order till the commissions are executed by the Local Commissioners and failing which the SHO/Head of the police station will be personally answerable to this Court.
Counsel for the plaintiffs states that he will comply with necessary provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 with respect to filing of documents as provided in the amended procedure of Order 11 CPC as applicable to commercial suits within a period of two weeks from today. The needful be done within a period of two weeks - Summons in the suit and notices in the I.A be issued to the defendants on filing of process fee both in the ordinary method as well as by registered AD post, returnable before the Joint Registrar on 22nd February, 2016.
Seeking grant of Bail - dishonest misappropriation of deposits of the gullible investors - there would be around 1600 complainants/victims, all of whom have been cited as witnesses and they were duped of approximately ₹ 20 crores - offence under Sections 420/120B IPC - HELD THAT:- Though nature of accusation and the severity of punishment in case of conviction as well as reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant are some of the important considerations while granting or refusing bail but in the case in hand, one cannot forget that chargesheet has already been submitted. Even after framing of charges, not a single witness has been examined. The sheer magnitude of the economic deprivation of investors makes it very obvious that at the trial there will be number of witnesses to support the prosecution version. A trial in a case of this kind cannot take place in a hurried manner. Any haste shown by the Trial Court in such matters would only occasion failure of justice.
This Court is conscious of the fact that for an offence under Section 409 IPC, the maximum punishment is imprisonment for life but at the same time, one cannot lose sight of the fact that the investigating agency has already completed investigation and the trial has not begun.
In the opinion of this Court, despite the gravity of the offence and the magnitude of the losses suffered by the investors/victims, the petitioner has become entitled to bail - the petitioner is directed to be released on bail on his furnishing a bond in the sum of ₹ 25,000/- with two sureties of the like amount to the satisfaction of the Trial Court, and other conditions imposed - application allowed.
Deduction u/s 54F- capital gain declared on sale of two residential houses - assessee sold two residential flats and one shop located at Pune - As per AO assessee should not own more than one residential house, other than the new asset, on the date of transfer of original asset - Date of sale of shop - HELD THAT:- As assessee had sold the residential flat on 31.7.2007 and thereafter sold the shop on 01-02-2008, while the tax authorities have presumed the residential units have been sold after the sale of shop. Since the factual aspects relating to this contradictory stand require verification, we set aside this matter to the file of the assessing officer for carrying out proper examination of the facts.
Assessee has violated the second condition prescribed u/s 54F - We have noticed that the assessing officer has already submitted a remand report by obtaining details from the society office, where in it was certified that both the flats are used by the assessee as a single residential unit. Since this fact has been accepted by the tax authorities, merely because, the two flats have been purchased by way of two separate agreements, in our view, will not make any difference. Accordingly, we are of the view that both the flats purchased by the assessee and joined and also used together as a single unit should be considered as a single residential house for the purpose of sec. 54F.
Quantum of deduction allowable u/s 54F - We are of the view that there is merit in the contentions of the A.R. There is nothing in the provisions of the Act that the cost of new asset shall be arrived at by deducting the deduction allowed u/s 54 of the Act for the purpose of computing deduction u/s 54F of the Act. There is also no provision in the Act which list out the priority of the deductions. Accordingly, we direct the AO to compute the deduction u/s 54F of the Act by taking the cost of new asset without deducting the deduction allowed u/s 54 of the Act, subject to the decision taken with regard to the verification of the dates of sale of residential house and shop.
With the above said observations, we set aside the matter relating to the deduction u/s 54F of the Act to the file of the assessing officer. Assessee Appeal partly allowed for statistical purposes.
Oppression and mismanagement - allotment of shares - appointment of two directors and alleged removal of managing director at the board meetings - Whether the Board resolution passed on 27.10.2004 duly appointing two new directors is legal and valid? - HELD THAT:- The petitioner was present in the Board meeting dated 27.10.2004 and he is party to the decisions including appointment of two directors on the Board of the R1 Company, therefore the petitioner is acquiesced to all the decisions taken in the Board meetings, Admittedly the company is having four directors. Therefore the petitioner now cannot contend that he has not aware of the above Board meeting which is completely blatant lie - the meeting dated 27.10.2004 is legal and valid.
Whether the allotment of shares made on 05.12.2004 to the extent of 15,000 equity shares, 05.01.2005 to the extent of 10,000 equity shares and on 20.02.2005 to the extent of 15,000 equity shares are legal and valid? - HELD THAT:- It is unequivocal that the petitioner subscribed to the 5000 equity shares of the company by investing ₹ 50,000/-. It is also evident from the balance sheet that the contribution to the shares by the petitioner only to the extent of ₹ 50,000/-. The annual returns for the year ended 30.09.2004 reflects the shareholding pattern of the petitioner and the 2nd respondent. The first allotment of shares was made on 05.12.2004 to an extent of 15.000 equity shares of ₹ 10/- each. The respondents have filed Form 2 showing the allotment of shares to the persons as described in form 2. From the perusal of minutes of the Board meeting dated 05.12.2004 it is also evident that the shares have been allotted to an extent of 15,000 equity shares to various persons. The respondents timber contended that the petitioner vide his letter dated 05.12.2004 addressed to the 2nd respondent wherein it is stated that he has no money and requested the respondent to put her money in the company and stated that he in the capacity as Managing Director will give lull support.
To establish the fact that the petitioner in the capacity as managing director addressed a letter dated 04.07.2005 to the flat allottees of AIBOC wherein he stated that "we wish to state that despite our best efforts, we could not get statutory approvals within the time framed simulated by all of you, and hence after discussions with AIBOC leadership and representatives of AIBOC enclave flat allottees and in order to avoid further wait by the persons who all had given advance payments. It was unanimously decided to refund the advance money received in full with interest @ 6% per annum from the date of receipt of advance upto 31.05.2005". The same is evident that the petitioner is in the helm of affairs of the company. Therefore there is no misuse of power for personal gains or ulterior motives - It is the duty of the director to make full and honest disclosure to the shareholders regarding all important matters relating to the affairs of the company, Admittedly prior to first allotment, the company has only two shareholders and two directors i.e. the petitioner and the 2nd respondent. The petitioner is aware of all the acts and he is party to the acts and given his consent according to which the company has taken its decisions in its best interest. In view of the aforesaid reasons the allotment of shares made by the company are legal and valid. Accordingly, the issue is answered.
Whether the Board resolution passed on 07.07.2005 for the removal of petitioner as MP is legal and valid? - HELD THAT:- The petitioner himself produced annual returns for the year ended 31.12.2005 wherefrom it is evident from the list of directors annexed along with the annual returns shows that the company was having four directors i.e. the petitioner, the 2nd respondent who were appointed on 14.06.2002 and Mr. S. Natarajan and Mr. S. Ramasami who were actually appointed on 27.10.2004 in a Board meeting held on 27.10.2004. Therefore on the date of Board meeting i.e. 07.07.2005 the company was having four directors and three directors were present in the Board meeting held on 07.07.2005 accordingly the Board meeting dated 07.07.2005 is valid and legal - this Bench cannot interfere with the wisdom and exercise of its discretionary powers in a democratic manner.
The petitioner has not made out any case either oppression or on mismanagement and the petition is frivolous and liable to be dismissed - Petition dismissed.
Deemed University - Judicial Review - amenability test based on the source of power - expression "any person or authority" used in Article 226 of the Constitution - HELD THAT:- It is clear from reading of the ratio decidendi of judgment in ZEE TELEFILMS LTD & ANR VERSUS UOI. & ORS [2005 (2) TMI 773 - SUPREME COURT] that firstly, it is held therein that the BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against the BCCI under Article 226 of the Constitution of India.
Firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as “Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
Validity of detention order - no copy has been served upon petitioner - HELD THAT:- Petitioner submits that he does not wish to press the present writ petition and he would seek appropriate remedy as available to him in accordance with law at the appropriate stage.
In view of the stand taken by learned counsel, present writ petition and all pending applications are dismissed as not pressed.
Reopening of assessment u/s 147 - as argued no reasons were recorded for reopening before the date of issue of notice u/s.148 - HELD THAT:- From the notesheet, we found that the first entry pertains to issue of notice u/s.148 dated 6-3-2009 and the last entry is dated 16-12-2009. However, we do not find any entry in notesheet recording the reasons for reopening, after the date of issue of notice on 6-3-2009 u/s.148, it means reasons for reopening was not recorded after issue of notice u/s.148 dated 6-3-2009.
Since note sheet recording entries prior to the date of issue of notice u/s.148 dated 6-3-2009 was not made available to us, it is not possible for us to find out independently as to whether any reasons for reopening was recorded prior to issue of notice u/s.148. As per entry on the note sheet, between 24-8-2009 to 16-12-2009, the assessee had asked for issue of reasons and the AO has sent the reasons. However, the notings of the proceedings carried out by AO before issue of notice u/s.148 was not made available to us. Thus, the copy of notesheet so filed by ld. DR which is incomplete, do not help us to reach to the conclusion as to whether any reasons were ever recorded by the AO prior to the issue of notice u/s.148 on 6-3-2009. Under such circumstances, we have no option other than relying on the finding recorded by CIT(A) to the effect that no reasons were recorded for reopening before the date of issue of notice u/s.148 on 6-3-2009. - Decided in favour of assessee.
Execution of will in favour of the Plaintiff in respect of the property in suit or not - relief of permanent injunction - HELD THAT:- In MAHAVIR SINGH VERSUS NARESH CHANDRA [2000 (11) TMI 1238 - SUPREME COURT], explaining the scope of revision in the matters of acceptance of additional evidence by the lower appellate court interpreting expression "or for any other substantial cause" in Rule 27 of Order XLI, this Court has held that It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 Code of Civil Procedure, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order Under Section 115 Code of Civil Procedure.
Regarding exercise of revisional powers in the matter of allowing the application for additional evidence, when appeal is pending before the lower appellate court, the impugned order passed by the High Court cannot be upheld and the same is set aside. However, to do complete justice between the parties, we think it just and proper to direct the first appellate court to decide the application for additional evidence afresh in the light of observations made by this Court regarding principles on which such an application can be allowed or rejected.
It is deemed just and proper to direct the first appellate court to decide the application for additional evidence afresh in the light of observations made by this Court regarding principles on which such an application can be allowed or rejected - appeal disposed off.
Treatment of carbon credit receipts - revenue or capital receipts - HELD THAT:- As decided in M/S. ARUN TEXTILES PRIVATE LIMITED VERSUS ASST. COMMISSIONER OF INCOME TAX, COMPANY CIRCLE, TIRUPUR [2014 (9) TMI 922 - ITAT CHENNAI] we are inclined to hold that the receipt from sale of carbon credits has to be considered as capital receipt and accordingly, it is not taxable. Thus, there is no question of considering the same for deduction u/s.80IA.
Deduction u/s.80IA - Whether depreciation of earlier years, which have been absorbed, cannot be notionally carried forward and considered in computing the quantum of deduction u/s.80IA? - HELD THAT:- This issue is covered by this Tribunal in favour of the assessee in the case of M/s. Ambika Cotton Mills Ltd. & Others [2015 (12) TMI 1851 - ITAT CHENNAI] mere pendency of Special Leave Petition before the Apex Court cannot be a reason to take a different view. The judgment of Madras High Court is binding on all the authorities in the State of Tamil Nadu and Union Territory of Pondicherry. Commissioner of Income Tax (Appeals) has rightly allowed the claim of the assessee by following the binding judgment of Madras High Court in Velayudhaswamy Spinning Mills (P) Ltd [2010 (3) TMI 860 - MADRAS HIGH COURT] - Decided against revenue.
Deduction u/s 80-IA in respect of windmills - AO rejected the claim of the assessees on the ground that the Department has filed a Special Leave Petition against the judgment of Madras High Court in Velayudhaswamy Spinning Mills (P) Ltd[2010 (3) TMI 860 - MADRAS HIGH COURT] - HELD THAT:- This Tribunal is of the considered opinion that mere pendency of Special Leave Petition before the Apex Court cannot be a reason to take a different view. The judgment of Madras High Court is binding on all the authorities in the State of Tamil Nadu and Union Territory of Pondicherry. Therefore, the Commissioner of Income Tax (Appeals) has rightly allowed the claim of the assessees by following the binding judgment of Madras High Court in Velayudhaswamy Spinning Mills (P) Ltd (supra). Therefore, this Tribunal do not find any infirmity in the order of the Commissioner of Income Tax (Appeals). Appeals of the Revenue are dismissed.
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