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Showing 41 to 60 of 1442 Records
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2014 (2) TMI 1406
Violation of SEBI Act - violations committed by promoters of BoR under SEBI Act - Dilution of shareholding - Deceptive mechanism adopted by Promoter group in collusion with persons acting in concert ('PAC' for short) with various group entities - Penalty imposed under Section 15HA and under Section 15A(a) of SEBI Act - HELD THAT:- Where violations committed by any person fall within the domain of two authorities constituted under two statutes, then both authorities would be justified in initiating action against that person. In such a case, if one authority for any reason does not initiate proceedings, then, inaction by one authority would not vitiate proceedings initiated by another authority. In the present case, RBI noticed that Promoter group of BoR together with connected entities had violated RBI Guidelines (within the domain of RBI), and referred it to SEBI to consider as to whether promoters of BoR had violated SEBI Act and Regulations framed thereunder. SEBI conducted further investigation and on receipt of investigation report initiated adjudication proceedings and imposed penalty on all entities including appellant herein.
While arguing the matter on demurrer that is, assuming that the appellant is guilty of making representation which is not true, appellant would not be justified in contending that no penalty should be imposed under SEBI Act on ground that RBI has not initiated any action against appellant, because liability to pay penalty for violating SEBI Act and regulations made thereunder is not dependent on RBI initiating proceedings and imposing penalty for alleged violations of RBI guidelines.
SEBI as capital market regulator and RBI as banking sector regulator operate in different fields and therefore, fact that RBI has not initiated proceedings against appellant for the alleged violations of RBI guidelines would not absolve appellant from his liability to pay penalty when appellant is found to have violated SEBI Act and regulations made thereunder.
Argument that AO has failed to consider findings of WTM in his order dated March 26, 2012 that violations committed by promoters are not grave is without any merit, because, firstly, observations made by WTM in his order dated March 26, 2012 are only prima-facie observations made in the context of continuing ex-parte ad-interim order after completion of investigation. Secondly, WTM himself has categorically recorded in his order that AO shall pass final order without being influenced by observations made by WTM in his order dated March 26, 2012. Therefore, argument that in view of prima facie observations of WTM no penalty could be imposed upon appellant is without any merit and hence liable to be rejected.
Fact that RBI has permitted merger of BoR with ICICI Bank cannot be a ground for appellant to escape penal liability for violating SEBI Act and regulations made thereunder, because permission granted by RBI for merger of BoR with ICICI Bank was not in lieu of offences committed by appellant under SEBI Act and regulations made thereunder. In other words, having violated SEBI Act and regulations made thereunder, appellant cannot avoid penal liability merely because, subsequent to such violations RBI has permitted merger of BoR with ICICI Bank.
There is nothing on record to suggest that camouflaging real level of shareholding by promoters of BoR including appellant has led genuine investors to trade in shares of BoR, cannot be a ground for appellant to escape penalty even after violating SEBI Act and regulations made thereunder, because SEBI Act does not contemplate imposition of penalty on a person violating SEBI Act only if investors suffer on account of such violations. That may be a factor to be taken into account by AO while determining the quantum of penalty. Therefore, fact that there is no evidence to show that any investor has suffered cannot be a ground to escape penalty even after violating SEBI Act and regulations made thereunder.
Penalty of ₹ 4 crore has been imposed under Section 15HA of SEBI Act without considering provisions contained in Section 15J of SEBI Act is also without any merit because, Section 15HA provides that a person indulging in fraudulent and unfair trade practices relating to securities shall be liable to a penalty of ₹ 25 crore or three times the amount of profits made out of such practices, whichever is higher. Assuming that actual profits made by promoters including appellant on account of violation of PFUTP Regulations, 2003 are unascertainable, AO, after considering all mitigating factors has imposed penalty of ₹ 4 crore as against penalty of ₹ 25 crore imposable under Section 15HA of SEBI Act which cannot be said to be arbitrary or unreasonable.
Parliament by inserting Section 15HA to SEBI Act with effect from 29.10.2002, has prescribed penalty not less than ₹ 25 crore upon a person indulging in fraudulent and unfair trade practices relating to securities. In the present case, it is not in dispute that Promoter group controlled by Tayal family including appellant have represented to the investors that they have reduced their shareholding in BoR during the investigation period from 44.18% to 28.61%. However, it is found that contrary to the representation made, shareholding of promoters along with PAC's has gone up to 63.15% during the investigation period. In such a case, representation made to investors constitutes fraud for which penalty imposable is not less than ₹ 25 crore. However, taking into consideration, all mitigating factors, AO has imposed penalty of ₹ 4 crore on appellant. In these circumstances, discretion exercised by AO in imposing penalty of ₹ 4 crore as against penalty of ₹ 25 crore imposable under Section 15HA of SEBI Act cannot be said to be unjustified or unreasonable.
Appellant is also saddled with penalty of ₹ 1 crore under Section 15A(a) of SEBI Act for non-compliance of summons issued to appellant. Summons in this case was issued on May 26, 2011 calling upon appellant to appear before investigating officer on May 31, 2011 with documents specified therein. By letter dated May 30, 2011 appellant informed the investigating officer that above summons has been received on May 28, 2011 and it would not be possible to appear with documents on May 31, 2011 and requested for another date for appearance and production of documents.
Without considering merits of above request and without giving any opportunity for production of documents or appearance, show cause notice was issued and by impugned order penalty of ₹ 1 crore has been imposed upon appellant by AO under Section 15A(a) of SEBI Act for non-compliance of summons issued to appellant. Since dispute in this case related to 2007-2009 period and since summons was issued in May 2011, it would have been just and proper for the investigating officer to consider reasonable request of appellant and fix another date for appearance/production of documents, especially when appellant had agreed to appear and produce documents on the next date fixed by investigating officer. Since reasonable opportunity for production of documents was not given to appellant, we deem it proper to set aside penalty of ₹ 1 crore imposed upon appellant under Section 15A(a) of SEBI Act. Accordingly, we uphold penalty of ₹ 4 crore imposed under Section 15HA and set aside penalty of ₹ 1 crore imposed under Section 15A(a) of SEBI Act.
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2014 (2) TMI 1405
The Supreme Court in 2014 (2) TMI 1405 - SC Order, with Hon'ble Mrs. Justice Gyan Sudha Misra and Hon'ble Mr. Justice V. Gopala Gowda presiding, condoned delay and issued notice. The impugned order's effect and operation are stayed until further order. The petitioner was represented by Mr. Colin Gonsalves, Sr. Adv., Ms. Amiy Shukla, Adv., Ms. Jyoti Mendiratta, Adv.
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2014 (2) TMI 1404
Validity of election petition - certain invalid votes had been counted in favour of the Appellant and certain valid votes which were cast in favour of the Respondent No. 1 - HELD THAT:- This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them - the court cannot exercise discretion of ordering recounting of ballots just to enable the election Petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts.
It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal [2009 (9) TMI 1062 - SUPREME COURT] and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil [2009 (5) TMI 934 - SUPREME COURT]. Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case.
The inescapable conclusion that can be reached is that even after deciding the Recrimination Petition, the Appellant and the Respondent No. 1 have received equal number of votes - in such a fact-situation the decision as to who will be the returned candidate is to be decided by the draw of lots by virtue of the provisions of Section 102 of the Act.
Appeal disposed off.
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2014 (2) TMI 1403
Addition on account of battery replacement expenses - additional evidence was admitted after hearing both the parties - HELD THAT:- Since the nature of this additional evidence is such that it requires verification at the end of AO, the matter is restored back to his file for fresh adjudication after making necessary inquiries/investigations about the veracity of this additional evidence. - cross appeals filed by assesses and revenue are allowed for statistical purpose.
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2014 (2) TMI 1402
Dishonor of Cheque - insufficient funds - present criminal revision petition has been filed by the petitioner without surrendering before the learned lower Appellate Court - HELD THAT:- This Court has every doubt with regard to the maintainability of this criminal revision petition without surrender of the petitioner before learned Court below after dismissal of his appeal. There is no doubt that this Court can suspend the execution of the sentence as per provision contained in Section 401, Cr.P.C., while hearing criminal revision petition, but that has to be done only when the petitioner is behind the bars - Concededly, it is not a case where the learned lower Appellate Court had suspended the sentence and granted time to the petitioner to file the present petition. In that eventuality, on course this Court can accept the prayer and allow him to remain on bail if the provision so permit.
The petitioner was not satisfied with the judgment of conviction and the order of sentence passed by the learned Trial Court, therefore, filed an appeal before the learned Additional Sessions Judge, Fast Track Court (Adhoc), Jalandhar, but thereafter in the month of February, 2013, he absented himself and never appeared before the learned lower Appellate Court, therefore, the said Court was constrained to pronounce the judgment in the absence of the petitioner. The learned lower Appellate Court also concurred its findings with the judgment delivered by the learned Trial Court and dismissed the appeal - the findings recorded by the learned two Courts below are well based since the respondent-complainant was able to prove that the cheque amounting to ₹ 7,50,000/- issued by the petitioner- accused in discharge of his legal liability had bounced and in spite of the notice issued by the respondent-complainant, the petitioner-accused failed to pay the amount. The evidence led by the respondent-complainant has established his case, therefore, no ground is made out for interference by this Court while exercising the revisional jurisdiction.
Petition dismissed.
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2014 (2) TMI 1401
Bribe - interpretation of various sections that appear in Chapter II read with Chapter III of the Prevention of Corruption Act, 1988 - whether, on the death of the sole public servant, the Special Judge will cease to have jurisdiction to continue with the trial against the private persons for non-PC offences? - HELD THAT:- The Indian Penal Code has provided for punishment for the offence of bribery and corruption even against the public servants. Parliament, in its wisdom, noticed that the Penal Code was not adequate to meet the exigencies of time and a need was felt to introduce a special legislation with a view to eradicate the evil of bribery and corruption from the society. Consequently, the Prevention of Corruption Act, 1947 was enacted, which was amended in the year 1964, based on the recommendations of the Santhanam Committee. Parliament still felt that the anti-corruption laws should be made more effective, by widening their coverage and enhancing penalties and to expedite the proceedings and hence the 1988 Act was enacted.
The scope of Sub-section (3) of Section 4 of the PC Act, which indicates that "when trying any case", which means trying any case relating to the offences referred to in Section 3(1)(a) and (b) of the PC Act for which exclusive jurisdiction is conferred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under the Indian Penal Code is a separate offence, has to be separately charged and tried.
The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under Sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under Sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.
There are no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No. 88 of 2001 in the Court of Chief Metropolitan Magistrate for trying the case in accordance with law - appeal allowed - decided in favor of appellant.
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2014 (2) TMI 1400
Failure to submit the revised return within the statutory period as prescribed - applicability of documents sought to be produced for the first time - Section 33 (3) of the West Bengal Value Added Tax Act, 2003 - HELD THAT:- It is no doubt true that a particular amount is shown under stock transfer and it is equally true that revised return is not filed within the period prescribed under Section 33 (3) of the said Act. While making an assessment on the basis of the return, the authorities are not denuded of power to disallow any claim under a particular head, if the documents and other evidence suggest otherwise. It is also equally true that if the documents are produced by the Assessee, which manifests that the amount shown under a particular head is wrongly shown therein, the authorities, if otherwise satisfied on the basis of the documents as well as the explanation offered, cannot deny the benefit as the petitioner has shown the said amount under a wrong head.
The order impugned in this writ petition is bereft of any such reasoning except a stray statement that the Assessee has not explained why the said documents were not filed before the Assessing Officer - Board is directed to reconsider the revisional application upon taking note of the documents filed by the petitioner and shall record the reasons relating to the acceptability or non- acceptability of those documents as well as its relevancy in the context of the dispute - Petition disposed off.
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2014 (2) TMI 1399
Dishonor of Cheque - criminal offence or not - Section 420 read with Section 120-B of the Indian Penal Code - HELD THAT:- No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the Appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the Appellants in their defence in accordance with law for due consideration at appropriate stage.
On considering the facts of the present case it is found that the facts were properly noticed by the High Court on earlier occasion while examining the petition preferred by the Appellants for quashing of FIR of this case. The same view has been reiterated by the High Court in the order under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, there are no good ground to interfere with the criminal proceedings against the Appellants at this stage.
Appeal dismissed.
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2014 (2) TMI 1398
Unfair and discriminatory conditions with respect to its Continuing Professional Education (CPE) scheme of OP - structured CPE credits and organization of the seminars/conferences/workshops for obtaining these credits - relevant product market - market for organizing recognised CPE Seminars/Workshops/Conferences - HELD THAT:- There seems to be force in the allegations of the informant that the restriction put in by OP in not allowing any other organization to conduct the CPE seminars for CPE credits, createdan entry barrier for the other players in the relevant market. Further, the choice of the consumer (members of OP) in this case was being limited. The members of OP had no option, but to attend the seminars organized by OP (whatever be the quality of seminars) to get the requisite CPE credits.The restriction put on by OP does not meet the objectives sought to be achieved by the policy. There are hundreds of seminars and conferences organized every month across India by reputed chambers of commerce like CCI, FICCI, ASSOCHAM, NASSCOM, etc. However, these seminars/conferences are not recognised by OP for CPE credits. Prima facie, it appears to be an unreasonable restraint and the members CA of OP are left with no option but to compulsorily attend seminars organized by OP and its organs.
Informant has pointed out in his information that the 64th Annual Report of OP for the Financial Year 2012-13 shows that the OP earned gross revenues of ₹ 45 crores from organizing seminars and conferences, which is around 8% of the OP’s total revenue. Informant also pointed out there were no similar restrictions imposed by other accounting bodies of the world, i.e. in US, UK, Singapore, Australia, etc.
The Commission directs the Director General (DG) to cause an investigation to be made into the matter and to complete the investigation within a period of 60 days from receipt of this order. If during the course of investigation, involvement of any other party is found, the DG shall investigate the conduct of such other parties including the conduct of group companies, if any, in terms of the proviso to section 27 of the Act - the DG is also directed to investigate the role (if any) of the persons who were in charge of, and were responsible to the companies for the conduct of the businesses of such companies, after giving due opportunity of hearing to such persons.
Application disposed off.
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2014 (2) TMI 1397
Excess deduction claimed u/s 36(1)(viia) - excess deduction of 10% of average advances of rural branch is available to rural branches and as per explanation (ia) below section 36(1)(viia) ‘rural branch means a branch of schedule bank or a non schedule bank (and thus rural branch of a cooperative bank is not covered) - CIT-A deleted the addition - HELD THAT:- In the present case, it is noticed that the Ld. CIT(A) decided the issue in favour of the assessee in consonance with the decisions taken by the coordinate benches of the ITAT at Jaipur [2014 (1) TMI 833 - ITAT JAIPUR] and Cochin [2012 (5) TMI 22 - ITAT COCHIN]. He has followed the decision of.Jaipur Central Co-operative Bank Ltd. [2014 (1) TMI 833 - ITAT JAIPUR]. We, therefore, do not see any merit in this appeal of the department.
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2014 (2) TMI 1396
Condonation of delay - Sufficient reason for delay - whether the transactions of the appellant with M/s. Bharat Petroleum Corporation Limited and M/s. Indian Oil Corporation Limited are transactions under which the appellant could be treated as providing vehicles for hire (tanker lorries to carry materials) or whether the appellant was employing herself as a carrier? - HELD THAT:- It is not as if the appellant had not shown any cause at all to condone the delay. The sufficiency or otherwise in such matters have necessarily to be weighed also, on the scales of justice, depending upon the question whether the delay could be condoned at least on terms. This largely depends on the cause pleaded for the delay and the view that the appellate court, tribunal or authority could take on a prima facie superficial examination of the grounds of appeal, which may also point out that ends of justice require the appeals to be entertained.
In this view of the matter, we see that the substantial question of law that arises for decision in these appeals is as to whether the Tribunal had acted, in accordance with law, while it refused to condone the delay, at least on terms. On hearing the learned counsel for the parties on that particular issue of law, we are satisfied that the said question is a substantial question of law, and, has to be answered in favour of the appellant.
In the result, these appeals are allowed and the impugned orders are set aside on condition that the appellant pays the Department an amount of ₹ 10,000/- (Rupees ten thousand only) as costs in each of these appeals within a period of two weeks from today, by making appropriate remittance
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2014 (2) TMI 1395
Seeking recovery of VAT demand - against assessment orders, three appeals have been preferred by the petitioner - HELD THAT:- At this stage, atleast till such stay applications are disposed of, without there being any special facts on record, the action initiated by the Department in recovering the tax demand is quashed. The Deputy Commissioner [Appeals] before whom such stay applications are pending may, however, endeavour to dispose of such applications latest by 31st March 2014, for which the petitioner shall cooperate.
Petition disposed off.
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2014 (2) TMI 1394
Sanction for prosecution - Irregularities in the award of the contract and construction of administrative building for the Corporation of Ujjain during the period 1991-1993 - valid sanction by the competent authority or not - proceedings for prosecution against superior officers - Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.
The trial court should conduct a proper inquiry as to whether all the relevant materials were placed before the competent authority and whether the competent authority has referred to the same so as to form an opinion as to whether the same constituted an offence requiring sanction for prosecution.
Appeal allowed.
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2014 (2) TMI 1393
Addition made under the head ‘capital gains’ - Joint Development agreement taken as ‘sale deed’ - assessee argued merely signing of a tripartite Joint Development Agreement by the Society with M/s. Hash Builders and with M/s. Tata Housing Development Co. Ltd (THDC), did not result into accrual of the alleged capital gain to the assessee - relevant provisions of section 2(47) as also the provisions of section 53A of the Transfer of property Act - HELD THAT:- As decided in SHRISATNAM SINGH KAINTH [2013 (9) TMI 229 - ITAT AMRITSAR] and CHARANJIT SINGH ATWAL [2013 (8) TMI 364 - ITAT CHANDIGARH] When the plots remain unallotted and obviously legal ownership and beneficial ownership belonged to the society. Had the plots been allotted to some members before entering into the JDA then it could have been said that the plots have already been allotted and therefore, the society was not responsible for the same. Once the plots were owned by the assessee obviously the transfer of the same would lead to arising of profit which has to be taxed u/s 45. We are of the opinion that lower authorities have correctly rejected the arguments that income from such plots, if any, should be charged under the head "business profits" because it is a settled law that if an income falls under specific head of income contained in Section 14 under Chapter IV then the same has to be taxed under that head. - Decided against assessee.
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2014 (2) TMI 1392
Disallowance of provision for damaged goods - CIT-A allowed the claim - HELD THAT:- Since Ld. CIT(A) has followed the earlier order of the Tribunal for A.Y. 2005-06 [2010 (7) TMI 1202 - ITAT AHMEDABAD] in assessee’s own case, we are not inclined to interfere with the order of Ld. CIT(A) and the same is hereby upheld. This ground of revenue’s appeal is dismissed.
Disallowance of depreciation on intangible assets in the form of non-compete territory rights - HELD THAT:- CIT-A following the Tribunal decision, A.O. is directed to decide the issue in the light of the final decision of the Hon’ble High Court for A.Y. 2002-03 [2012 (7) TMI 958 - GUJARAT HIGH COURT] This ground of appeal is allowed, subject to the final decision of Hon’ble Gujarat High Court [2012 (7) TMI 958 - GUJARAT HIGH COURT] Since Ld. CIT(A) has decided this ground following the order of the Tribunal for A.Y. 2005-06 in assessee’s own case, we are not inclined to interfere with the order of Ld. CIT(A) and the same is hereby upheld. This ground of revenue’s appeal is also dismissed.
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2014 (2) TMI 1391
Proceedings under Section-5 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- NOTICE returnable on 13.3.2014. The respondent No.2 shall not decide the proceedings under Section-5 of the Prevention of Money Laundering Act, 2002, till then. DS is permitted.
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2014 (2) TMI 1390
Carry forward of Unabsorbed depreciation - treatment to brought forward unabsorbed depreciation claim - HELD THAT:- As decided in PIONEER ASIA PACKING P. LTD. [2007 (11) TMI 285 - MADRAS HIGH COURT] and GENERAL MOTORS INDIA PVT. LTD [2012 (8) TMI 714 - GUJARAT HIGH COURT] by virtue of the provisions of Sec.32 (2), as amended by Finance Act, 2001, unabsorbed depreciation available in the assessment year 1997-98, 1999-00, 2000-01 & 2001-02 could be carried forward and set off during the succeeding years. Accordingly, we hereby hold that in the relevant assessment year, the assessee shall be entitled to set off unabsorbed depreciation carry forward from the earlier years - Assessing Officer is therefore, directed to modify his order accordingly. Thus, this ground raised by the assessee is allowed in its favour.
Interest for borrowed funds - Advances to sister concerns - HELD THAT:- Assessee has own funds far exceeding the advance made to its sister concerns. Further the claim of the assessee that it had transferred accumulate losses to its sister concerns has not been looked into by the Ld.AO, need less to mention that in such case disallowance of interest expense on the premises that interest bearing funds have been diverted would be incorrect. However the following decisions rendered by various higher judiciary has held that if the assessee has own funds exceeding the advances made to sister concerns, then interest expenditure cannot be disallowed on the premises that the assessee has diverted interest bearing fund to its sister concerns.
Considering the above decisions in the case CIT Vs. Reliance Utilities And Power Ltd.[2009 (1) TMI 4 - BOMBAY HIGH COURT] & in the case CIT Vs. Bharti Televenture Ltd [2011 (1) TMI 326 - DELHI HIGH COURT] which are identical to the facts of the case before us, we are of the opinion that the Ld. Assessing Officer has erred by disallowing the interest expenditure incurred by the assessee on the premises that interest bearing funds have been diverted to the sister concerns. Therefore, we hereby delete the addition made by the Ld. Assessing Officer, which was further confirmed by the Ld. CIT (A) on this issue - Decided in favour of assessee.
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2014 (2) TMI 1389
Murder - charge of abduction - Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him - HELD THAT:- The High Court believed the testimony of Dipak and Panchu and came to the conclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta. However, the High Court did not take into consideration the view of the Trial Court, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to Asit Sarkar to cross the river as alleged by the prosecution. The High Court also did not consider the apparently incorrect testimony of Animesh who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of Animesh was specifically denied by the Investigating Officer.
When the basic fact of Paritosh having boarded a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum of the prosecution's case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, the High Court does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of Chandrappa - Merely because the High Court disagreed (without giving reasons why it did so) with the reasonable and possible view of the Trial Court, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by the Trial Court. This is not to say that every fact arrived at or every reason given by the Trial Court must be dealt with - all that it means is that the decision of the Trial Court cannot be ignored or treated as non-existent.
The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But the High Court overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal - we are unable to agree with learned Counsel for the State and are of the opinion that there was really no occasion for the High Court to have overturned the view of the Trial Court which was not only a reasonable view but a probable view of the events.
The view taken by the Trial Court was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for the High Court to set aside the acquittal of Shyamal and Prosanta. Accordingly, their conviction and sentence handed down by the High Court is set aside - Appeal allowed
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2014 (2) TMI 1388
Disallowance u/s.43B - interest amount ‘paid’ by the assessee - AO held that the term ‘paid’ means that the amount should have been actually paid. Transfer of amount from one account to another account cannot be treated as ‘paid’ thus made the disallowance - HELD THAT:- The interest amount has been paid from the cash credit account of the assessee in which the balance keeps on varying every day depending upon the receipts and payments of the assessee. The embargo put by Explanation 3C and 3D of section 43B is not attracted in the facts of the present case. The interest amount has not been converted into loan or advance. The interest amount has actually been ‘paid’ by the assessee through Overdraft/Cash Credit account. In view of our above findings, the dis-allowance made u/s.43B is set aside and the appeals of the assessee are allowed.
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2014 (2) TMI 1387
Deduction u/s 80IB(10) denied - project was not a housing project as envisaged under section 80-IB(10) - Whether project was not a housing project as envisaged under section 80-IB(10)? - assessee had claimed himself to be ‘developer’ of a plot measuring 14.75 acres alongwtih all basic amenities like roads, parks, street lights, children play area etc - HELD THAT:- An identical claim of deduction had been disallowed by the Assessing Officer in assessment year 2009-10 and the ‘tribunal’has confirmed similar findings of the CIT(A) deleting the same. [2013 (11) TMI 1745 - ITAT CHENNAI] as transpires that in preceding as well as the impugned assessment year, the Assessing Officer had made disallowance of deduction u/s 80IB(10) qua the very project ‘ Chettinadd Enclave’ sought to have been developed by the assessee on similar analogy of reasons (supra).
We find from the tribunal’s order that similar grounds were raised wherein issue of deduction stands decided in favour of the assessee. In these circumstances, by following the order of the ‘tribunal’ in assessee’s own case for the very project in the nature of deduction u/s 80IB(10) of the Act , we see no reason to adopt a different view in the impugned assessment year. Consequently, the CIT(A)’s findings are affirmed. - Decided against revenue.
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9911796707
