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Showing 41 to 60 of 1887 Records
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2017 (12) TMI 1852
Exemption u/s 54B - whether land transferred was agricultural land? - D.R said that the Adangal extract and other documents said to be obtained from the Village Administrative Officer cannot conclude that the land in question is agricultural land - HELD THAT:- From material available on record it appears that the assessee planted some coconut trees in the land in question. The assessee has also produced copies of Adangal extract to establish that the land was used for cultivation. Adangal extract otherwise known as Village Account No.2 was maintained by the Village Administrative Officer in the regular course of performing his official function. The Village Administrative Officer being the field level officer, has a duty to record the cultivation in Village Account No.2 / Adangal extract.
To establish the cultivation, the only document available is the Adangal extract. Therefore, the Adangal extract cannot be brushed aside so lightly when the assessee produced the same to establish his case that the land in question was used for agricultural activities.
Assessing Officer has not examined whether the assessee invested the money and actually purchased the property as claimed. A reference about the advance given by the assessee was found in the assessment order. However, there was no reference about the purchase of property. The assessee now claims that he is ready and willing to produce the copy of sale deed before the AO. Therefore, this Tribunal is of the considered opinion that the Assessing Officer shall re-examine the issue afresh.Appeal filed by the Revenue is allowed for statistical purposes.
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2017 (12) TMI 1851
Seeking processing of the refund claim - refund claim is based upon the exemption orders passed by the Government, in G.O.Ms.No.103 of Commercial Taxes and Registration (B2) Department, dated 01.08.2012 and G.O.Ms. No.6 of CT and RE Department, dated 06.02.2013, which granted exemption with retrospective effect - HELD THAT:- Considering the fact that, there appears to be no dispute with regard to the refund claim, the first respondent should definitely consider the petitioners' request and pass appropriate orders, for which purpose, the first respondent shall call for appropriate report from the respondent/Deputy Commissioner (CT), Large Tax Payers Units –I and IV respectively.
These Writ Petitions are disposed of, by directing the first respondent to consider the petitioners' individual representations dated 20.05.2016 and 23.05.2016, call for appropriate reports from the Deputy Commissioner (CT), Large Tax Payers Units –I and IV, Chennai, and pass orders on the said representations within a period of twelve weeks from the date of receipt of a copy of this order.
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2017 (12) TMI 1850
Depreciation on hoardings - whether the hoardings were temporary or permanent structure - Depreciation @ 100% treated as temporary structures as against the treatment given by the AO as plant and machinery allowing depreciation @ 15% - depreciation on hoardings claimed by the Assessee and disallowed by the AO depreciation on Hoarding Structures (Bus Shelters) on additions for more than 180 days - HELD THAT:- As in the Assessment Order for the AY. 2009-10, AO disallowed Rs. 57,73,114 out of total depreciation claimed of Rs. 1,94,65,631 @ 100% on the additions of more than 180 days to the Hoarding Structures ( Bus Shelters). He further disallowed 50% depreciation amounting to Rs.7,74,495/- on additions of Rs.15,48,990/- Hoarding structures (Bus Shelters) for less than 180 days in Paragraph 3 on page 2 of the order. He allowed the balance 50% of the claim for depreciation of Rs.18,77,500/- on Hoarding Structures that was disallowed in A.Y. 2008-09 in paragraph 3 on page 3 of the order.
It is thus clear from the order of CIT(A) that the depreciation disallowed by the AO of Rs.57,73,114 was depreciation on hoardings and structures which were used for more than 180 days. Therefore there is no merit in ground No.2 raised by the revenue before us.
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2017 (12) TMI 1849
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- A perusal of the petition show that it is complete in all respects. The documents show that financial debt is due from the Corporate Debtor and there is occurrence of default. In fact, even in the reply filed by the corporate debtor it has not denied the liability or the occurence of default. Moreover, Financial Creditor issued notice under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, recalling the entire loan facilities. There is no tenable objection filed by the Corporate Debtor in the reply. Pendency of proceedings before the Debt Recovery Tribunal, Ahmedabad is not a ground for not commencing Insolvency Resolution Process in view of the fact that the provisions of the Code is having overriding effect over any other Law.
This petition deserves to be admitted and it is accordingly admitted under section 7 (5) of the Code.
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2017 (12) TMI 1848
Recovery of property tax - arrears of rent by the landlord/owner can be considered to be forming part of the rent for the purpose of seeking eviction or ejectment of such tenant who defaults in payment of such recoverable tax as rent - rent including recoverable tax in respect of the tenanted premises exceeds Rs. 3500/- per month, thereby losing protection of the Delhi Rent Control Act, 1958 - interplay of Section 67(3) of the NDMC Act vis-à-vis Section 7(2) of the Rent Act - HELD THAT:- Under Section 67(3) the landlord has been given the right to recover the house tax from the tenant as if the same were rent whereas Under Section 7(2) of the Rent Act, there is a specific bar to recover any tax as rent from the tenant.
In Ganga Ram [1977 (11) TMI 147 - DELHI HIGH COURT] the tenant had sub-let a portion of the property and was receiving rents from the sub-tenant. After taking into consideration the rents received by the tenant from the sub-tenant and the rent payable by him to the landlord, the corporation determined the rateable value on the basis that the premises was fetching higher rent than that of the rent paid by the tenant to the landlord. It was the case of the landlord that he was entitled, Under Section 121(1) of the Corporation Act, to recover from the tenant the difference between the amount of property tax levied on the property and the amount of tax which would be leviable upon the premises if the tax was calculated only on the amount of rent paid by the tenant to the landlord without taking into consideration the rent received by the tenant from the sub-tenant.
Whether non-payment of property tax recoverable from the tenant as rent can be a ground for his eviction/ejectment from the premises? - HELD THAT:- This Court has held that an earlier enactment will prevail over a latter enactment even if, there is a non-obstante Clause in the latter enactment, if it were to be held that the earlier enactment is a special enactment on the particular subject being in issue - Assuming that the latter enactment prevailing over the earlier enactment were to apply to this case, the two enactments have to be harmoniously construed so as to ensure that the latter enactment does not cause violence to the intent of the earlier enactment.
The object of the Rent Act is to provide protection to tenants who under common law, including Transfer of Property Act could be evicted from the premises let out to them at any time by the landlord on the termination of their tenancy. It restricts the right of the landlord to evict the tenant at their will. It is a special law in relation to landlord and tenant issue. Therefore, the Rent Act has to prevail insofar as landlord and tenant issue is concerned.
Though the Rent Act is an earlier Act when compared to the NDMC Act, it is a special enactment with regard to the matter in issue and has a non-obstante clause. The NDMC Act is not a special enactment insofar as landlord-tenant issue is concerned and it contains Section 411 which provides that other laws not to be disregarded. Section 67(3) of the NDMC Act merely gives a right to recover the tax in respect of the premises as rent. It does not override the Rent Act insofar as obviating the effect of Section 7(2) of the Rent Act. In our opinion, the tax recoverable from the tenant Under Section 67(3) of the NDMC Act as arrears of rent by the Appellant cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the Respondent who defaults in payment of such recoverable tax as rent.
Appeal dismissed.
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2017 (12) TMI 1847
Levy of VAT - lease charges paid by the Railway department to the petitioner - It is the contention of the counsel for the petitioner that since the agreement was executed in West Bengal and that no transaction whatsoever transpired within the jurisdiction of Chhattisgarh, the State of Chhattisgarh could not have levied tax - HELD THAT:- VAT Act is an enactment by the State Legislature under entry 54 of list 2 schedule 7 of the Constitution of India.
Undisputedly, in the instant case the petitioner company is receiving the lease charges from the Railway department against the wagons purchased by the petitioner and which have been handed over to the Railway department. Admittedly, the agreement was made prior to the present South East Central Railway came into existence and the agreement was with the erstwhile South East Railway. It is also not in dispute that the wagons were manufactured by two different companies one locating in the State of West Bengal and other locating in the State of Rajasthan and the wagons have also been delivered by the manufacturers at the place of manufacture i.e. in West Bengal and Rajasthan. Since the time of transfer of the wagons to the Railway department by the manufacturers, the Railway department has been paying charges to the petitioner company.
In the instant case an agreement was entered into by the petitioner with the erstwhile and undivided South Eastern Railway and the contract was executed at Calcutta. The supplies of wagons were made at Calcutta, West Bengal and Bharatpur, Rajasthan. The further undisputed fact is that by virtue of the said sale or purchase, the benefits from the said is being reaped by the petitioner company in the State of Chhattisgarh and for the services so provided, the Railway department is paying lease charges to the petitioner again in the State of Chhattisgarh - there is a transfer of rights to use goods which in the instant case is in the form of wagons used for the transportation of materials belonging to the petitioner.
The transfer of right to use the goods and that for the wagons so purchased at the behest of the petitioner’s establishment are availing the benefits within the territories of the State of Chhattisgarh as has been discussed in the preceding paragraphs, this Court has no hesitation in reaching to the conclusion that the imposition of tax on the lease charges by the Assessing officer and the rejection of the revision by the Revisional authority vide its order dated 30.05.2015 is just and proper and does not warrant interference.
Petition dismissed.
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2017 (12) TMI 1846
Award of interest on various claims for different periods to the claimant (Respondent No. 1) - interest for a pre-reference period, i.e., 04.03.1996 to 05.05.1999 @ 15% p.a - pendent lite, i.e., for the period from 06.05.1999 to 09.09.2002 @ 12% p.a. - post reference period, i.e., 09.09.2002 till payment @ 18% p.a., total (first and second) Rs. 12,89,033/- on the awarded sum - HELD THAT:- In Section 11(5) proceedings, the Appellant did not raise this objection in their reply and instead gave their express consent to refer the issue of award of interest payable on various claims (1 to 17) to Arbitral Tribunal considering the said claim to be arbitrable under the contract - the Appellant could have registered their objection before the Single Judge at the time of making a reference to the Arbitral Tribunal by pointing out Clause 13(3) of GCC or could have reserved their right to raise such objection before the Arbitral Tribunal. It was, however, not done.
If a plea is available-whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case - the Appellant is otherwise not entitled to raise the plea on yet another ground. It is not in dispute that the Appellant's application filed Under Section 34 of the Act was partly allowed by the Single Judge only to the extent of two claims regarding award of interest. In other words, the application suffered dismissal substantially on all other claims except two claims mentioned above. However, despite suffering substantial dismissal, the Appellant did not file any appeal to challenge the part dismissal of their application.
The grant of award of interest on arbitrable claims by the Arbitral Tribunal is not inherently illegal or against any public policy or per se bad in law or beyond the powers of the Arbitral Tribunal. In other words, it is permissible to award interest in arbitrable claims by the Arbitral Tribunal - Section 31(7) (a) and (b) of the Act empowers the Arbitral Tribunal to award interest on the awarded sum and secondly, it is always subject to the agreement between the parties.
Appeal dismissed.
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2017 (12) TMI 1845
Disallowance of provision for contractual obligations - HELD THAT:- As it is apodictic that actual payments against the provisions made by the assessee for earlier year were negligible upto assessment year 2013-14. Assessee was unable to furnish any details regarding the projects so far completed by the assessee with delay and the actual amount of liquidated damages paid for such overrun.
While there can be no quarrel on the claim of the assessee that actual liquidated damages payable on account of delay attributable to it, is a crystallized liability, in our opinion requisite details for supporting the claim made by the assessee is not on record. Not only the assessee has to show that there was indeed a delay, it is also required to show what part of such delay was attributable to its own fault and what claim was made by the client as per contractual provision, for such damages. In the facts and circumstances of the case, we are of the opinion that the issue requires a fresh look by AO. We therefore set aside the orders of the lower authorities and remit the issue back to the file of the ld. Assessing Officer for consideration afresh in accordance with law.
Disallowance being provision for warranty - HELD THAT:- What we find is that for assessment year 2009-10 though the claim was allowed by the ld. Commissioner of Income Tax (Appeals), the Tribunal had reversed such finding of the ld. Commissioner of Income Tax (Appeals) and upheld the disallowance for warranty provisions. Nothing was shown before us to take a different view for the impugned assessment year. Ground of the assessee stands dismissed.
Disallowance u/s.14A - HELD THAT:- Hon’ble Delhi High Court in the case of Joint Investment P. Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] disallowance u/s.14A of the Act cannot exceed the exempt income claimed by the assessee. We restrict the disallowance accordingly.
Addition of retention money - Accrual of income in which year ? - HELD THAT:- We find that the question whether retention money could be considered as part of income had come up before the Hyderabad Bench of the Tribunal in assessee’s own case for assessment year 2007-08 [2013 (9) TMI 372 - ITAT HYDERABAD] Tribunal had set aside the issue to the file of the ld. Assessing Officer for verifying the correctness of the claim of the assessee that retention money was offered as income in the years in which these were received. Accordingly, for the impugned assessment year also, we give similar directions as given by the Tribunal - Ground of the Revenue is partly allowed for statistical purpose.
Allowance of depreciation on technical know-how - HELD THAT:- No doubt, Revenue has claimed that assessee had not become absolute owner of the technical know-how and the supplier company continued to enjoy the ownership of such technical know-how.
However, in our opinion, once assessee had paid the money and acquired the technical know-how, it become an intangible asset, eligible for claiming depreciation u/s.32(ii) of the Act. The question whether the same vendor had given the same technical know-how for other persons, is in our opinion, irrelevant in deciding the question of eligibility of the assessee for claiming depreciation. We therefore do not find any reason to interfere with the order of the ld. Commissioner of Income Tax (Appeals) in this regard. Ground stands dismissed.
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2017 (12) TMI 1844
Application for initiation of CIRP - financial creditor or operational creditor - application was preferred by the Appellant under Section 7 of the I & B Code - whether the application has been treated to be an application under Section 9 of the I & B Code or not? - HELD THAT:- The Appellant-M/s. PEC Ltd. has disbursed the amount to 'M/s. Sree Ramakrishna Alloys Limited' against the consideration for the time value of money. It is also clear that M/s. Sree Ramakrishna Alloys Limited by the agreement dated 24th February, 2014 has borrowed money from the Appellant-M/s. PEC Limited against the payment of interest. Thus, the Appellant-M/s. PEC Ltd. come within the meaning of 'Financial Creditor' and is eligible to file an application under Section 7 of the 'I & B Code' there being a debt and default on the part of the Respondent.
The Adjudicating Authority failed to appreciate that the application(s) preferred by Appellant under Section 7 of the 'I & B Code' cannot be treated as an application under Section 9 of the 'I & B Code' and the Appellant who is a 'Financial Creditor' cannot be treated as 'Operational Creditor'.
If an application is filed by a person under Section 7 of the 'I & B Code' and in case the Adjudicating Authority comes to the conclusion that the Applicant is not a 'Financial Creditor' in such case the Adjudicating Authority has jurisdiction to reject the application under Section 7 of the 'I & B Code', but the said Authority cannot treat the format of the application under Section 7 of the 'I & B Code' (Form-1) as an application under Section 9 of the 'I & B Code' (Form-5), nor can treat such person an 'Operational creditor', in absence of any claim made under Section 9 of the 'I & B Code'. Further, as the informations required to be given in Form-1 varies from the informations as required to be given in Form-5 (As per Section 9), including instructions made below the requisite form(s), no application filed under Section 7 can be treated as an application under Section 9 of the 'I & B Code - in absence of a notice under sub-section (1) of Section 8 of the 'I & B Code', an application under Section 7 cannot be treated to be an application under Section 9.
In the present case, as the application preferred by the Appellant under Section 7 in both the appeals are maintainable and have been admitted, order of moratorium has been passed and 'Interim Resolution Professionals' have been appointed, no interference is called for against the impugned order - Appeal allowed.
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2017 (12) TMI 1843
Seeking declaration and permanent injunction in relation to the land described in detail in the plaint - HELD THAT:- The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code.
It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference - Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1842
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- A financial creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a corporate debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I&B Code. Herein this case Annexure T is found a legally executed assignment agreement. It is a registered document, stipulating all the terms and conditions. Being found Annexure T, a document admissible in evidence, this Adjudicating Authority cannot go behind the purpose of execution of the deed. Ld. Counsel for the respondent submits that it is a fraudulent document and that respondent has no knowledge about the execution of the deed. The said contentions are unsustainable in the peculiar circumstances of the case in hand.
Annexure T proves that petitioner is an assignee comes under the purview of section 5(7) of I&B code. Pursuant to Annexure T, the assignee herein has got right to enforce such security interest, pledges, and/or guarantees and appropriate the amount realized their form towards repayment of loan and to exercise all the rights of Assignor Bank in relation to such security interest, pledges and guarantees. The assignment of debt not at all affect the right of the debtor and therefore, respondent being evident that is a borrower does not have any right to object to the assignment of the debt by the lender.
In a recent National Company Law Appellate Tribunal (NCLAT) ruling of Neelkanth Township and Construction Pvt. Ltd. v. Urban Infrastructure Trustees Ltd. [2017 (9) TMI 1130 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI], one among the issues under consideration was the question of application of Law of Limitation about the Insolvency and Bankruptcy Code, 2016. The issues for consideration before the NCLAT was whether the application under Section 7 of the IBC is time barred, as the debt claim related to the years 2011, 2012 and 2013 and it was held that "the Limitation Act, (Limitation Act) does not apply to IBC”. So, no doubt the contention of the Ld. Counsel that the application is barred by limitation is also not sustainable under law.
In an application of this nature, this Adjudicating Authority is bound firstly to consider as to whether there is existence of default from the records and information utility or based on other evidence furnished by the financial creditor. If the petitioner succeeds in proving default of which the claim put forward by the petitioner and satisfy Sec.7 (5)(a) of the I& B Code, this Adjudicating Authority is bound to admit the application. The procedure adopted for the disposal of this application is summery in nature - The petitioner succeeded in establishing that the application is complete in all respects.
Petition admitted - moratorium declared.
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2017 (12) TMI 1841
Disallowance u/s 14A r.w.r. 8D - assessee did not make any disallowance of the expenses incurred in relation to such exempted income - HELD THAT:- AO can make the disallowances of the expenses incurred in relation to exempt income in pursuance to the provisions as specified u/s 14A - On perusal of the facts of the present case, we note that the assessee has claimed indirect/administrative expenses during the year to the tune of Rs.51,669/- only. Thus, it is undoubtedly clear that actual expenses claimed by the assessee are much less then the expenses disallowed under Rule 8D(2)(iii) of the I.T. Rules by the AO - we are of the view that the expenses to be disallowed under Rule 8D(2)(iii) cannot exceed the actual expenses incurred by the assessee. However, the AO has made the disallowance of the expenses under rule 8D(iii) exceeding the actual expenses.
The act of making the disallowance by the AO under rule 8D(iii) shows that no reference has been made to the books of accounts of the assessee. In such a situation we are of the view that the disallowance u/s 14A viz a viz Rule 8D of the I.T Rules has been made without complying the provisions of law. Thus the addition cannot be sustained in the instant case. Thus, we direct the Assessing Officer to delete the impugned addition. Thus, first issue in grounds of appeal filed by the assessee is allowed.
Addition u/s 115JB for disallowance u/s 14A r.w.r 8D - HELD THAT:- As in recent judgment of Special Bench of Hon’ble Delhi Tribunal in the case of ACIT vs. Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] that the disallowances made u/s 14A r.w.r. 8D cannot be the subject matter of disallowances while determining the net profit u/s 115JB - Thus it can be concluded that the disallowance made under section 14A r.w.r. 8D cannot be resorted while determining the expenses as mentioned under clause (f) to explanation 1 of section 115JB - However it is also clear that the disallowance needs to be made in terms of the provisions of clause (f) to section 115JB of the Act while determining the book profit. In holding so we draw our support from the judgment of Hon’ble Calcutta High Court in the case of CIT Vs. Jayshree Tea Industries Ltd [2014 (11) TMI 1169 - CALCUTTA HIGH COURT]
We hold that the disallowances made under the provisions of Sec. 14A r.w.s 8D of the IT Rules, cannot be applied to the provision of Sec. 115JB - AO shall work out the disallowances in terms of the clause (f) to Explanation-1 of Sec. 115JB of the Act independently after considering the expenses debited in the profit & loss account as mandated under the provisions of law.
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2017 (12) TMI 1840
CENVAT Credit - transit loss - short receipt of inputs - benefit of credit on duty paid by the input supplier of Bulk Liquid Cargo to the extent such cargo was lost during transit, was denied - HELD THAT:- The issue stands decided against the Revenue, in the same assessees case in the decision of the Tribunal reported as COMMISSIONER OF C. EX., VAPI VERSUS SAVITA CHEMICALS LTD. [2007 (4) TMI 404 - CESTAT, AHMEDABAD] - even though the said decision in the same assessees case were placed before the lower authorities, they have tried to distinguish the same on the technical ground by observing that the appellant have obtained claim for the loss either from the insurance or from the supplier. Accordingly, they have not followed the earlier decision.
Such claim of loss from the insurance or from the input supplier has got nothing to do with the assessees entitlement to avail the full CENVAT Credit of the duty paid by the supplier. It may not be out of place to observe here that the input recipient is entitled to the entire duty PAID by the input supplier. The same cannot be varied at the recipients end especially when there is no allegation to show that the goods have been diverted during transit to other person - Admittedly, in the present case, the less receipt of liquid cargo is on account of the transit loss, which is bound to happen in the transportation of the liquid cargo, in which case the credit to that extent cannot be disallowed, especially when there is no variation in the quantum of duty paid by the input supplier.
Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1839
Seeking pre-arrest bail - fraud - money received in lieu of assured job, which ultimately was not granted - offences punishable under Sections 406 & 420 r/w. Section 34 of the Indian Penal Code - HELD THAT:- After considering the nature and gravity of the allegations, the materials in support thereof, the severity of the punishment which conviction would entail, the character and antecedents of the petitioner, the possibility of the petitioner fleeing from justice and other facts and circumstances, the relief of pre-arrest bail can be granted to the petitioner, subject to conditions.
Application allowed.
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2017 (12) TMI 1838
Deduction u/s.80P of the Act on the interest income earned from nationalized banks - CIT (Appeals)-3 confirming the order of the AO holding that the amount of interest income earned on fixed deposits made with nationalized banks and co operative bank is not profits and gains attributable to the activity of providing credit facilities to members and hence not eligible for deduction under section 80P of the Act and thereby considering the amount of interest as income from other sources liable to be taxed under section 56 of the Act.- HELD THAT:- In this case, interest amount was received form Allahabad bank, Bank of Baroda and Baroda center Co-op. Bank respectively. From the details, it can be seen that the receipts of interest has been received from other than Co-operative organization i.e. from nationalized banks on FDRs, which is nothing but interest earned on surplus funds invested in bank deposits i.e. FDRs..
We direct the Assessing Officer to verify the assessee’s claims of pro rata expenses by examination the record to be shown for verification by the assessee and accordingly, netting of to be allowed. Appeal of assessee allowed.
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2017 (12) TMI 1837
Dishonor of Cheque - parties to the lis failed to amicably settle the matter inter se the parties, despite sufficient opportunities having been afforded to them during the pendency of revision - doctrine of merger - HELD THAT:- The Hon’ble Apex Court in the case of K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT] has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded.
Maintainability of present review petition - doctrine of merger - HELD THAT:- The doctrine of merger does not apply in the case of dismissal of special leave petition. In the case at hand, special leave to appeal having been filed by the petitioner/applicant has been dismissed as withdrawn by nonspeaking order and as such, does not result in the merger of impugned order in the order of the Hon’ble Supreme Court.
This Court holds that review petition filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 10.3.2017, passed by this Court in Criminal Revision No.394 of 2015, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
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2017 (12) TMI 1836
Depreciation from the estimation of income - AO completed the assessment estimating the income @ 8% on impugned contracts, 6% on sub contracts, 2% on sub contracts given, however, the A.O. has not allowed the statutory allowance of depreciation - HELD THAT:- In the instant case there is no dispute that facts are similar to that of the assessee’s case for the assessment year 2009-10.D.R. did not bring any other case law or distinguished the facts of the case. Therefore, respectfully following the view taken by the ITAT for the earlier year in the assessee’s own case [2015 (11) TMI 1530 - ITAT VISAKHAPATNAM], we direct the A.O. to allow the depreciation against the income estimated from the contract receipts. However, the income so computed shall not be less than the returned income. Accordingly, the appeal of the assessee is partly allowed.
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2017 (12) TMI 1835
Rejection of rate of interest - one time settlement - HELD THAT:- The petitioner Company was allotted a commercial plot in the year 2008 being the highest bidder therefor. Initially, an allotment order was issued in favour of the petitioner Company on 11.4.2008, but later on, there was some variation in the land size and consequently, another allotment order dated 2.12.2009 was issued. Thereunder, the petitioner Company was liable to pay 50% of the amount in four interest free installments and the remaining 50% in 72 monthly installments alongwith interest at the rate of 18% per annum and in case of default in payment of the installments, additional interest at the rate of 24% as penal interest.
This Court dismissed the writ petition by order dated 21.6.2016 not only on the ground that the petitioners have failed to comply with the order dated 29.1.2013 passed in the first writ petition, but also because the Court found that the Advocate of the petitioners made an incorrect statement before the Court and tried to mislead it. This Court, while granting liberty to the petitioners to raise grievance, if any, in regard to the rate of interest by filing suit or by approaching such forum as may be available to them, did not mean that the petitioners would re-agitate the matter before this Court, once again, under the garb of certain communication received from U.P. Awas Evam Vikas Parishad intimating the petitioners that the amount determined under the OTS scheme is wholly justified and it is not possible to accept its objection regarding rate of interest.
Petition dismissed.
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2017 (12) TMI 1834
Smuggling - Charas - whether there is any provision to file a supplementary complaint and if so can the same be filed without obtaining leave of the Court, as admittedly accused Khekh Ram has been convicted only on the basis of the supplementary complaint? - HELD THAT:- Indisputably, the complaint in this case was initially filed only against the accused Nilmani whereas supplementary complaint came to be filed thereafter against accused Khekh Ram. It is also not in dispute that since complaint was filed by a public servant acting in discharge of his official duties, therefore, the recording of preliminary evidence under Section 200 of the Criminal Procedure Code was dispensed with and after perusing the complaint and the documents, the learned Special Judge took cognizance only against Nilmani as he was sole accused.
There are no hesitation to conclude even though there exists no specific provision in the Code of Criminal Procedure to file supplementary complaint in a complaint case, however, if on further investigation and with the express leave of the court, the culpability and the complicity of any other person is established the supplementary complaint be filed.
Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside - the appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case - appeal allowed.
Smuggling - contraband item - facts brought on record by the NCB falsify the case of the prosecution or not - mere paper work and nothing happened and no such incident took place at any point of time or not - failure to connect the FSL report Ex.PW1/A with the alleged contraband - failure to comply with Section 42(2) of the Act - non-joining of independent witness is fatal to the case of the NCB - NCB case is full of infirmities, discrepancies, embellishments and improvements etc. - Appellant has been wrongly implicated while the real culprits let off by the respondents - Non-interrogation of the appellant casts serious doubt on the NCB story - HELD THAT:- Following conclusion is reached:-
(i) Even though the specific case set-up by the NCB is to the effect that the accused had been apprehended at about 8:30 p.m. on 20.10.2014 and as per PW-10 he was not allowed to go anywhere till 21.10.2014 at 2:00 a.m. and had not contacted anyone on his mobile phone nor he receive any call. However, the call details clearly prove that he was in constant touch with number of persons from 8:30 p.m. on 20.10.2014 till 12:23 p.m. on 21.10.2014 and as many as 34 calls had been made.
(ii) The contraband alleged to have been recovered on 20.10.2014 but in case the memo of recovery Ex.PW9-D is perused, the same is dated 21.10.2014.
(iii) The witnesses S/Shri Surjit Singh and Roshan Lal whose statements have been recorded under Section 67 of the Act and available as Ext.PW-9/Q-1 and Ext.PW9/E are conspicuously silent about the receiving of the secret information and transmitting the same to the PW-7, Superintendent, NCB at 6:30 p.m. on 20.10.2014.
(iv) It is the specific case set-up by the NCB that no proceeding whatsoever conducted on the spot i.e. ‘Shat’ because it was dark, therefore, the accused was taken to Zonal Office, Mandi where search and seizure proceedings were conducted. PW9 has claimed to have issued two notices Ext.PW-9/A i.e. option given to the appellant under Section 50 of the NDPS Act and Ext.D-2, notice given to the appellant under Section 67 of the NDPS Act and in both these notices, the place of issuance is mentioned as ‘Shat’.
(v) Memo Ext. PW9/A does not contain any date when the same was prepared.
(vi) In Panchnama Ext.PW9/F, the time of receiving information and the time of reaching is tampered with.
(vii) In Ext.PW9/G, the statement of the accused under Section 67 of the Act, the date has been tampered with and changed from 21.10.2014 to 20.10.2014 to show the arrest of the accused.
(viii) The seals alleged to have been used are different from those exhibited on the record.
(ix) The information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and realizing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference.
(x) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them.
(xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW- 7/A is not a FAX copy and further admit that the FAX copy has not been placed on record.
(xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard.
It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subsequently on 22.10.2014.
(xiii) It is the case set-up by the NCB that the apprehension, search and seizure were conducted after sun set and before sun rise. Therefore, as per the mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity, however, no such reasons find mention in Ext.PW7/A.
(xiv) The entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each had been sent. Therefore, even assuming that the case set-up by the NCB is proved to the hilt even then it is only 100 grams of charas that can be said to have been recovered from either of the accused for which the maximum conviction would be about one year and concededly the appellants have undergone more than the aforesaid said period in custody.
(xv) There is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on the vital aspects of the case.
There are no hesitation to conclude that the NCB has miserably failed to lead cogent, reliable and satisfactory evidence to prove the guilt of the accused beyond reasonable doubt - appellant is acquitted of the charges framed against him - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1833
TDS u/s 195 - assessee has paid co-location charges outside the country - Assessee clarified that co-location charges is nothing but charges paid by the assessee outside the country for storage of electronic data in a manner which can be retrived by the customers outside the country, the assessee has paid storage charges which is known as co-location charges - HELD THAT:- From the material available on record it appears that Cinenet Communications Inc. USA is in the business of providing Data Centre Racks. The assessee has utilised racks space provided in Data Centre Racks owned and maintained by Cinenet Communications Inc USA. In case of technical issue, Cinenet Communications Inc appears to have provided basic support for use of racks. Moreover, payment made to Novatel Ltd. and Tata Communication (US) Inc, the assessee claims before the CIT(Appeals) that the service was utilised outside the country. Therefore, admittedly, the payment was made to the company in USA. In the case of Verizon Communications Singapore Pvt. Ltd.[2013 (11) TMI 1058 - MADRAS HIGH COURT] the payment was made to Singapore company. Therefore, here we have to examine the Double Taxation Avoidance Agreement between India and USA.
Both the authorities had no occasion to examine the Double Taxation Avoidance Agreement between India and USA. Moreover, it is also to be examined how the electronic data was transmitted to USA.
Whether the data stored in Data Centre Racks of Cinenet Communications Inc was used by any other Indian customers also needs to be examined - whether the recipient company in USA has any permanent establishment in India or whether they have any business connection in India needs to be examined in the light of Double Taxation Avoidance Agreement between India and USA. Since such an exercise was not done by both the authorities below, this Tribunal is of the considered opinion that the matter needs to be re-examined.
Thus Assessing Officer shall re-examine the matter in the light of the material that may be filed by the assessee and the Double Taxation Avoidance Agreement between India and USA and decide the issue afresh in accordance with law - Appeal filed by the assessee is allowed for statistical purposes.
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