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Showing 41 to 60 of 1898 Records
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2015 (12) TMI 1861 - ITAT BANGALORE
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.
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2015 (12) TMI 1860 - DELHI HIGH COURT
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.
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2015 (12) TMI 1859 - DELHI HIGH COURT
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.
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2015 (12) TMI 1858 - ITAT MUMBAI
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.
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2015 (12) TMI 1857 - COMPANY LAW BOARD CHENNAI BENCH
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.
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2015 (12) TMI 1856 - SUPREME COURT
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.
Appeal allowed.
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2015 (12) TMI 1855 - DELHI HIGH COURT
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.
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2015 (12) TMI 1854 - ITAT MUMBAI
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.
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2015 (12) TMI 1853 - SUPREME COURT
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.
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2015 (12) TMI 1852 - ITAT CHENNAI
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.
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2015 (12) TMI 1851 - ITAT CHENNAI
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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2015 (12) TMI 1850 - ITAT MUMBAI
Unexplained expenditure under section 69C relating to the purchase of goods - addition based on name of the two suppliers figured in the list of suspicious dealers in the website of sales Tax department - eligible proof that the assessee has indulged in the bogus purchases - CIT(A) deleted the additions - HELD THAT:- When the AO himself has not doubted the purchase and sale transaction and all the expenditure has been duly accounted in the books of account, then it can not be said to be a case of unexplained expenditure. It is not the case of the AO that the goods were purchased by the assessee at a lesser rate or that someone has supplied the goods to the assessee for free or that the assessee has booked a bogus expenditure. When it is not so, solely on the basis of unconfronted and general statements of alleged suppliers made before sales tax authorities, addition u/s 69C under the circumstances on account of purchases are not warranted at all.
Assessee has relied upon the decision of Nikunj Enterprises (P.) Ltd.” [2013 (1) TMI 88 - BOMBAY HIGH COURT] wherein the Hon’ble Bombay High Court has upheld the findings of the tribunal that where the assessee filed letters of confirmation of suppliers, copies of bank statement showing entries of payment through account payee cheques to suppliers and stock reconciliation statements, sale of purchased goods was not doubted, the transactions were supported with evidences and confirmations, in such an event merely because the suppliers have not appeared before the AO or the Ld. CIT(A), one can not conclude that the purchases were not genuine.- Decided in favour of assessee.
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2015 (12) TMI 1849 - ITAT CHENNAI
Computation of deductio u/s 10A - Assessee incurred sales commission in foreign currency during the previous year relevant to the assessment year 2006-07 - AO excluded it from the export turnover, however, not reduced from the total turnover - CIT(A) by following the decision of ITO vs Sak Soft Ltd [2009 (3) TMI 243 - ITAT MADRAS-D] observed that for the purpose of applying the formula u/s 10A, the sales commission expenses which was incurred in foreign currency for providing technical services outside India are to be excluded both from export turnover as well as total turnover - HELD THAT:- Since the issue is covered in favour of the assessee by the decision of the Special Bench in Sak Soft Ltd (supra) and the CIT(A) has followed the same, we do not find any infirmity in the order of the CIT(A). Accordingly, the same is confirmed. - Decided against revenue.
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2015 (12) TMI 1848 - SUPREME COURT
Validity of subsequent settlement made in favour of the Temple Managing Committee - the disputed land was earlier settled in the name of Shri Jagannath Mahaprabhu Bije Puri, Marfat Siddha Brundaban Ramanuj Das.
Whether the suit lands can vest in the Respondent Math in the light of the provisions of the Shri Jagannath Temple Act, 1955? - HELD THAT:- In the instant case, there is a clear conflict between the proviso of Section 2(oo) of the OEA Act, 1951 and Sections 5 and 33 of the Temple Act, 1955. It is also clear that both the above statutory provisions of the Acts cannot survive together. While the rule of harmonious construction must be given effect to as far as possible, when the provisions of two statutes are irreconcilable, it needs to be decided as to which provision must be given effect to. In the instant case, Section 2(oo) proviso in its entirety is not violative of the provisions of the Temple Act.
In the case in hand, the first part of the proviso of Section 2(oo) of the OEA Act, 1951 cannot be allowed to sustain. Clearly, the intention of the legislature could not have been to render virtually the entire Temple Act, enacted on the specific subject, meaningless, by way of enacting a proviso to Section 2(oo) of the OEA Act, 1951 as an amendment in 1974, which is the general legislation in the instant case. Section 2(oo) of the OEA Act, 1951, thus, to that extent requires to be struck down so that both the OEA Act, 1951 as well as the Temple Act, 1955 can be given due effect in their respective field of operation. In exercise of the powers conferred Under Article 142 of the Constitution, this Court can pass any order as may be "necessary for doing complete justice" in a case before it. In the instant case, great injustice will be caused to the Appellant Temple if the rights conferred upon it by the Temple Act are allowed to be taken away by operation of the proviso to Section 2(oo) of the OEA Act. Therefore, we have to strike down the proviso to Section 2(oo) of the OEA Act and also quash the notification dated 18.03.1974 in so far as it relates to the property of Lord Jagannath Temple at Puri - Further, it is a settled principle of law that once a property is vested by an Act of legislature, to achieve the laudable object, the same cannot be divested by the enactment of any subsequent general law and vest such property under such law. Similarly, if in the instant case, we were to accept the contentions advanced by the learned senior Counsel appearing on behalf of the Respondent Math, then Sections 5 and 33 of the Temple Act, 1955 will be rendered useless and nugatory and thereby the laudable object and intendment of the Temple Act will be defeated and the interest of the public at large will be affected.
Whether even otherwise, the Math had the right to prefer claim rights in respect of the Temple Lands and initiate the proceedings under the OEA Act, 1951 by virtue of being an intermediary? - HELD THAT:- Since the Tahsildar performs only an administrative function under the OEA Act, 1951 and not a quasi judicial function, thus, he was not competent to pass the order of settlement of claim either Under Section 6 or 7 or 8 of the OEA Act, 1951. For the reasons stated in answer to Point No. 1 above, vesting of the suit lands in favour of the Math is bad in law. Further, as we have already held supra that once the land already vested in the Temple Committee Under Sections 5 and 33 of the Temple Act, 1955 which is a special enactment to deal with the properties endowed to the Appellant Temple Committee, the same could not have been divested by applying the provisions of the OEA Act, 1951 by way of an amendment to the Act by insertion of Sections 2(oo) and 3A in the OEA Act, 1951, as the operation of the said Act and the Temple Act, 1955 are in different fields and the objects and intendment of the abovementioned two Acts are entirely different. A constitution bench of this Court in the case of Calcutta Gas Co. Ltd. v. State of West Bengal [1962 (2) TMI 75 - SUPREME COURT] held that in case of a conflict or overlap between different entries, the rule of harmonious construction must be applied to give effect to all the entries.
Thus, there was no need for the Temple Committee to file claim proceedings Under Section 8A of the OEA Act, 1951, in respect of its own lands which were already vested in it Under Section 5 of the Temple Act, 1955. The suit lands vest in the Temple Committee itself. Thus, in view of the provisions of the Temple Act, 1955, the settlement of the suit lands in favour of the Respondent Math cannot be sustained, as it is bad in law.
Since we have categorically recorded the finding both on facts and in law while answering Point No. 1 in favour of the Appellant Temple Committee holding that the provisions of the OEA Act, 1951 have no application to the lands of the Lord Jagannath Temple at Puri, there is no need for us to pass an order in favour of the Temple under the OEA Act, 1951 as the suit lands were already vested in favour of the Lord Jagannath Temple at Puri by virtue of the provisions of the Temple Act, 1955.
Application allowed.
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2015 (12) TMI 1847 - ITAT, BANGALORE
MAT Computation u/s 115JB - Deduction on account of prior period expenditure from net profit shown in Profit & Loss Account for the purpose of computing book profit u/s 115JB - HELD THAT:- Only in cases where a particular item of income or expenditure is required to be disclosed in the Profit & Loss Account but was disclosed in the notes to accounts, then such item of income or expenditure will be treated as part of Profit & Loss Account for the purposes of computing profit u/s 115JB. Assessee has not brought on record anything to show as to how this amount was required to be part of Profit & Loss Account prepared in accordance with part II of Schedule VI of the Companies Act.
We further note that the CIT(A) has allowed the claim of the assessee on the premise that once assessee has disclosed this amount in notes to accounts, then the same will be treated as disclosed in Profit & Loss Account and consequently has to be adjusted for computation of book profit u/s 115JB.
CIT(A) has not gone into this aspect of the issue whether this prior period expenditure was required to be part of Profit & Loss Account as per Schedule VI of Companies Act or not. Therefore, if this amount was not required to be part of Profit & Loss Account prepared as per Schedule VI of the Companies Act, then undisputedly this amount not being part of any of the clauses of Explanation to sec. 115JB cannot be excluded from net profit for the purposes of computing book profit u/s 115JB.
Since neither the revenue nor the assessee has furnished any record in support of their respective claims, whether this amount of prior period expenditure was required to be part of Profit & Loss Account prepared as per provisions of Schedule VI of the Companies Act, therefore, we set aside this issue to the record of the CIT(A) to re-examine the issue in light of the relevant provisions of Schedule VI of the Companies Act as well as the relevant accounting standard applicable on this item of expenditure and then give a finding whether this amount of prior period expenditure is required to be part of profit and loss account or not - Appeal of the revenue allowed for statistical purposes.
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2015 (12) TMI 1846 - ITAT KOLKATA
TDS u/s 194J - Disallowing the expenses on account of violation of the provisions of TDS - payment from the party/ organizers for the artistes - assessee submitted that she is acting as a co-ordinator between artists and the organizer for arranging musical programmes - HELD THAT:- The assessee receives the payments from the organizers after TDS and make over the negotiated amount without TDS since the appellant is representing and acting for and on behalf of the organizers. All the artistes are very famous, widely acclaimed and have themselves furnished declaration with PAN that they will be directly responsible for their respective tax matters and one of them, Alka Yagnik even unequivocally stated that she had already paid income tax on such income.
DR vehemently relied on the orders of authorities below. We find from the aforesaid discussion that AO disallowed the expenses claimed by assessee due to violation of provision to Sec. 194-J of the Act. The argument of the assessee that the recipient of income has paid the tax in their respective hands has also been regarded. However, we find that there is an amendment in proviso to Sec. 40(a)(ia) r.w.s. 1st proviso to Sec. 201, wherein, if any payee has paid the taxes by offering / disclosing the said receipt in his / her return of income, then the payer (the assessee herein) should not be treated as assessee in default and no disallowance u/s/. 40(a)(ia) of the Act could operate in that scenario.
As relying on Ansal Land mark Township (P) Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] we deem it fit and appropriate in the interest of justice and fair play to set aside this issue to the file of Assessing Officer to decide the issue afresh in the light of the aforesaid judgment to ensure whether the deductee has paid taxes on their income. Accordingly, we direct the Assessing Officer to verify whether the payees have included the subject mentioned receipts in their respective returns and paid taxes thereon or not. If that is so, then disallowance u/s. 40(a)(ia) of the Act shall not be made in the hands of the assessee. Accordingly, the ground raised by assessee is allowed for statistical purposes.
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2015 (12) TMI 1845 - DELHI HIGH COURT
Seeking restoration of name of Company in the register of companies maintained by the Registrar of Companies - Section 560(6) of the Companies Act, 1956 - HELD THAT:- The notice in respect of action under Section 560 was not sent to the registered office of the company. Consequently, the condition precedent for the initiation of proceedings to strike off the name of petitioner from the Register maintained by the respondent was not satisfied - Looking to the fact that the petitioner is stated to be a running company; and that it has filed this petition within the stipulated limitation period, and to the decision of the Bombay High Court in PURUSHOTTAMDASS VERSUS REGISTRAR OF COMPANIES [1984 (4) TMI 247 - HIGH COURT OF BOMBAY]; it is only proper that the impugned orderof the respondent dated 23.06.2007, which struck off the name of the petitioner from the Register of Companies, be set aside.
Looking to the fact that annual returns and balance sheets were not filed for almost twelve years, the primary responsibility for ensuring that proper returns and other statutory documents are filed, in terms of the statute and the rules, remains that of the management.
The restoration of the company's name to the Register maintained by the Registrar of Companies will be subject to payment of costs of ₹ 22,000/- to be paid to the common pool fund of the Official Liquidator - petition allowed.
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2015 (12) TMI 1844 - ITAT MUMBAI
Non admission of addiontioal evidence - CIT(A) has passed the appellate order without considering the application u/s. 250(4) read with Rule 46A of the Income Tax Rules filed by the assessee - HELD THAT:- CIT(A) has not considered the application moved by the assessee for leading additional evidence u/r. 46A of the Rules. In order to meet the ends of justice, we are of the considered view that the order passed by learned CIT(A) without deciding the application for leading additional evidence moved by the assessee is not sustainable in the eyes of law and therefore the same is set aside and send back to the file of learned CIT(A) with the direction to decide the application moved by the assessee u/r. 46A after providing opportunity to the assessee. Appeal filed by the assessee is allowed for statistical purposes
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2015 (12) TMI 1843 - ITAT DELHI
Dismissal of appeal for non-prosecution - HELD THAT:- During the course of hearing today, nobody was present on behalf of the assessee neither any adjournment was sought. The notice of hearing was sent to the assessee through Registered Post on 05.11.2015, which has not yet been returned back by the Postal Authority. We find that on earlier occasion, when the case was listed the matter was adjourned at the request of the assessee. It, therefore, appears that the assessee is not interested to prosecute the matter.
The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum, “VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT’. Considering the facts and keeping in view the provisions of rule 19(2) of the Income-tax Appellate Tribunal Rules as were considered in the case of CIT vs. Multiplan India Ltd.[1991 (5) TMI 120 - ITAT DELHI-D] we treat this appeal as unadmitted.
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2015 (12) TMI 1842 - ITAT MUMBAI
TP Adjustment - disallowance of the corporate service charges - HELD THAT:- It is seen from the DRP’s order for A Y 2010-11 that observing that the facts of the matter are similar to those for A. Y. 2009-10, the DRP followed the same findings and decisions therein. In that view of the matter, we follow the decision of the co-ordinate bench in the assessee’s own case for A. Y. 2009-10 [2015 (9) TMI 286 - ITAT MUMBAI] and accordingly, in the interest of equity and justice, remit this matter of the computation of the ALP of the international transactions on account of the payment of corporate service charges by the assessee to its AE, to the file of the DRP for fresh adjudication by way of a speaking and reasoned order after affording reasonable opportunity to the assessee of being heard. It is accordingly ordered. Consequently, ground no. 1 is treated as allowed for statistical purposes.
Disallowance of Depreciation on goodwill - assessee contends that the AO erred in not following the directions issued by the DRP to allow the assessee depreciation on goodwill u/s. 32(1)(ii) - HELD THAT:- For A. Y. 2010-11 that the AO has not considered and allowed the assessee depreciation on goodwill of polymehtane business and textile effects business as directed by the DRP - We, therefore, direct the AO to follow the directions of the DRP and compute and allow the assessee depreciation on goodwill for A. Y. 2010-11.
Depreciation on intangibles - HELD THAT:- We find that the very same issue of allowability of the assesee’s claim of depreciation on intangible assets viz. Material supply contracts, brand usage and distribution networks was considered at length by a coordinate bench of this Tribunal in[2015 (9) TMI 286 - ITAT MUMBAI] wherein it has been held that the assessee is entitled to claim depreciation on intangible assets. Decided in favour of the assessee.
Disallowance u/s. 14A r.w.r. 8D - As contended that the authorities below ought to have taken into account that investments made were by way of strategic investments in its subsidiary concern out of interest free funds - HELD THAT:- Following the aforesaid decisions in the cases of Holcim India (P) Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] and Cheminvest Ltd.[2015 (9) TMI 238 - DELHI HIGH COURT] we hold that since the assessee has not earned any exempt income in the year under consideration, i. e. assessment year 2010-11, no disallowance u/s. 14A of the Act can be made and accordingly delete the disallowance made in this regard by the authorities below.
Disallowance of Expenditure on payment basis u/s. 43B - not allowing deduction for payment it made in connection with liabilities of CIBA Speciality Ltd. taken over by way of slump sale - assessee submitted that the assessee had taken over the liabilities of CIBA Ltd. and that these being known liabilities of which the assessee had to bear the expenditure as per the agreement - HELD THAT:- The recovery of the debt is a right transferred along with the numerous other rights comprising the subject of the transfer. If the law permits the transferor to treat the whole or part of the debt as irrecoverable and to claim a deduction on that account, the same right should be recognised in the transferee. It is merely an incident flowing from the transfer of the business, together with its assets and liabilities, from the previous owner to the transferee. It is a right which should, on a proper appreciation of all that is implied in the transfer of a business, be regarded as belonging to the new owner - See T. Veerbhadra Rao case [1985 (7) TMI 2 - SUPREME COURT] - Decided in favour of assessee.
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