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2012 (3) TMI 694
Issues Involved:
1. Additional Ground Raised by Assessee Regarding Notice u/s 143(2)
2. General Grounds Challenging the Impugned Order
3. Non-Admission of Additional Evidence by CIT(A)
4. Sustaining Addition of Un-Reconciled Difference in Trade Scheme Expenses
5. Addition Due to Lack of Address and Split Account of Manjit Singh Bhatia
6. Addition on Account of Interest-Free Loans to Sister Concern
7. Disallowance of Foreign Exchange Loss
Summary:
1. Additional Ground Raised by Assessee Regarding Notice u/s 143(2):
The assessee sought to raise an additional ground challenging the assessment framed u/s 143(3) without issuing notice u/s 143(2) within the prescribed time. This application was withdrawn during the hearing, and thus, no adjudication was required.
2. General Grounds Challenging the Impugned Order:
Grounds 1, 2, and 3, which contended that the impugned order was bad in law and passed without sufficient opportunity, were not pressed and thus dismissed.
3. Non-Admission of Additional Evidence by CIT(A):
The main grievance was the non-admission of additional evidence by the CIT(A), which the assessee argued resulted in a miscarriage of justice. The CIT(A) had refused to admit additional evidence under Rule 46A, concluding that the details should have been available with the assessee when the return was filed. The Tribunal found that the time available was insufficient for furnishing complete details due to decentralization of accounts and ongoing audit work. Citing the decision in Manish Buildwell (P) Ltd., the Tribunal restored the matter to the AO for fresh adjudication, directing the AO to take into account the additional evidence and grant a reasonable opportunity of being heard to the assessee.
4. Sustaining Addition of Un-Reconciled Difference in Trade Scheme Expenses:
The assessee contested the addition of Rs. 1,10,58,759/- representing un-reconciled differences in trade scheme expenses. The Tribunal restored this ground to the AO for fresh decision after considering the additional evidence and giving the assessee a reasonable opportunity of being heard.
5. Addition Due to Lack of Address and Split Account of Manjit Singh Bhatia:
Grounds 6, 7, 8, and 9, which arose due to lack of address and split account of Manjit Singh Bhatia, were also restored to the AO for fresh adjudication.
6. Addition on Account of Interest-Free Loans to Sister Concern:
The AO disallowed Rs. 14,60,567/- on account of interest-free loans given to a sister concern, SDL, arguing that borrowed capital was diverted. The Tribunal noted that the assessee failed to show the linkage between the businesses of the two companies and did not produce the bank account before the lower authorities. The matter was restored to the AO for fresh examination, directing the assessee to produce the bank account.
7. Disallowance of Foreign Exchange Loss:
The CIT(A) deleted the disallowance of foreign exchange loss, relying on the Tribunal's decision in the assessee's own case for previous years. The Tribunal upheld this deletion, citing the Woodward Governor India Ltd. case, which established that loss on foreign exchange fluctuation related to working capital is deductible.
Conclusion:
The appeal of the assessee is treated as allowed for statistical purposes, and the appeal of the revenue is partly allowed for statistical purposes.
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2012 (3) TMI 693
Issues involved: Appeal against order allowing additional depreciation u/s 32(1)(iia) on windmill.
Summary:
Issue 1: Additional Depreciation Claim
- The Revenue appealed against the CIT(A)'s order allowing additional depreciation u/s 32(1)(iia) on windmill.
- The Assessing Officer disallowed the additional depreciation claimed by the assessee on the windmill.
- The CIT(A) allowed the appeal of the assessee citing relevant decisions of the High Court.
- The assessee, deriving income from various sources, filed a return declaring total income and claimed additional depreciation under section 32(1)(iia).
- The Tribunal noted that additional depreciation is allowable for new machinery or plant acquired after a specified date by an assessee engaged in manufacturing or production.
- As the assessee was not engaged in manufacturing or production activities, the Tribunal held that the assessee was not entitled to additional depreciation on the windmill.
- The Tribunal distinguished the case from previous decisions where the assessees were engaged in manufacturing or production activities.
- Consequently, the Tribunal set aside the CIT(A)'s order and restored that of the Assessing Officer, allowing the grounds of appeal of the Revenue.
Final Decision:
- The appeal of the Department was allowed.
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2012 (3) TMI 692
Issues involved: Assessment of income u/s 143(3) of the Income-tax Act, rejection of account books, estimation of income at 12% of gross receipts, non-maintenance of stock register, validity of estimation based on past history.
The appeal was filed by the assessee against the order of ld. CIT(A), Karnal dated 3.10.2011 u/s 250(6) of the Income-tax Act. The assessee raised grounds challenging the order on various issues including the rejection of account books, estimation of income, and the validity of the AO's decision.
Regarding the rejection of account books, the AO found discrepancies in the maintenance of records by the assessee, including incomplete muster-rolls and lack of proper details in photocopies of registers. The AO also noted missing bills for purchases of materials like stone, concrete, sand, and soil. Due to these deficiencies, the AO rejected the books of account u/s 143(3) and estimated income at 12% of gross receipts, relying on a previous case.
During the appellate proceedings, the assessee contended that they were not a civil contractor but engaged in road construction and repair. The assessee argued that non-maintenance of a stock register should not lead to the rejection of account books. However, the ld. CIT(A) upheld the AO's findings, leading to a dispute over the validity of the rejection.
The Tribunal reviewed the submissions and records, considering the assessee's challenge to the 12% income estimation. The Tribunal emphasized the need for a valid basis for estimating income after rejecting account books, citing the assessee's past profit percentages. The Tribunal differentiated the current case from the previous case relied upon by the AO and directed a re-computation of income at 7% net profit, providing partial relief to the assessee.
In conclusion, the appeal was partly allowed by the Tribunal, with a direction to recompute the income of the assessee based on a 7% net profit.
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2012 (3) TMI 691
Issues Involved:
1. Deduction of amount claimed under "Provision for bad and doubtful debts" u/s 36(1)(viia).
2. Interpretation of the term "Place" for identifying "rural branch" of the bank.
3. Netting of provision for bad and doubtful debts created during the year with the provision created in earlier years and written back during the year.
Summary of Judgment:
Issue 1: Deduction of amount claimed under "Provision for bad and doubtful debts" u/s 36(1)(viia)
The assessee, a co-operative bank, claimed a deduction of Rs. 35.27 crores for "Provision for bad and doubtful debts" u/s 36(1)(viia). The AO restricted the deduction to 7.5% of the total income, arguing that the branches did not qualify as "rural branches" as defined in the Act.
Issue 2: Interpretation of the term "Place" for identifying "rural branch" of the bank
The AO interpreted "Place" as all "panchayat wards" under the branch's service area, while the assessee interpreted it as the "panchayat ward" where the branch is located. The Ld CIT(A) agreed with the assessee's interpretation, but the Hon'ble Kerala High Court reversed this, stating that "Place" should be understood as a "revenue village" with a population of less than 10,000. The Tribunal followed the High Court's decision, setting aside the Ld CIT(A)'s order and restoring the AO's assessment.
Issue 3: Netting of provision for bad and doubtful debts created during the year with the provision created in earlier years and written back during the year
The AO and Ld CIT(A) held that only the net provision of Rs. 7.35 crores (new provision of Rs. 35.27 crores minus Rs. 27.92 crores written back) should be considered for deduction u/s 36(1)(viia). The Tribunal agreed with the assessee that the provision for bad and doubtful debts created during the year should not be netted against the amount written back, except in cases where the provision for a particular debt needs enhancement. The Tribunal directed the AO to verify the quantum of new provision made by the assessee.
Additional Plea by Assessee:
The assessee argued that the definition of "rural branch" in sec. 36(1)(viia) does not apply to co-operative banks. The Tribunal rejected this plea, stating that a co-operative bank is classified as a "non-scheduled bank" under the Banking Regulation Act, 1949, and thus the High Court's decision applies.
Conclusion:
The appeal of the revenue was allowed, and the appeal of the assessee was partly allowed. The Tribunal directed the AO to verify the quantum of new provision made by the assessee and dismissed the assessee's request to set aside the matter for taxing the provision written back.
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2012 (3) TMI 690
Issues Involved:
1. Challenge to CAT's judgment extending financial benefits to employees under different categories.
2. Financial condition and wage revision policy of the petitioner.
3. Entitlement of employees who opted for VRS before the cut-off date.
4. Validity of the cut-off date for wage revision.
5. Application of judicial precedents and principles to the case.
Summary:
1. Challenge to CAT's Judgment:
The petitioner, Mineral Exploration Corporation Limited, challenged the Central Administrative Tribunal's (CAT) judgment dated 04.08.2010, which extended financial benefits to employees categorized into Category I and Category II. The CAT had granted actual financial benefits to 30 applicants in Category II and notional fixation benefits to 10 applicants in Category I, necessitating recomputation of their severance packages.
2. Financial Condition and Wage Revision Policy:
The petitioner highlighted its financial losses from 1992 to 2005, leading to the implementation of a Voluntary Retirement Scheme (VRS) as part of a revival package. The Government of India approved wage revision effective from 01.04.2003, to be implemented from 01.04.2006, with arrears for 2005-06 payable in 2006-07, contingent on achieving specific financial targets.
3. Entitlement of Employees Who Opted for VRS Before the Cut-off Date:
Employees who opted for VRS before 01.04.2003 were not initially entitled to wage revision benefits. However, they later claimed entitlement, leading to legal proceedings. The petitioners argued that these employees had no right to wage revision benefits as they had severed their relationship before the cut-off date.
4. Validity of the Cut-off Date for Wage Revision:
The petitioner argued that the cut-off date of 31.03.2003 was reasonable and necessary to avoid reverse discrimination. The CAT, however, found that the cut-off date was arbitrary and discriminatory, directing that notional benefits be extended to employees who retired before 01.04.2003.
5. Application of Judicial Precedents and Principles:
The court considered various precedents, including judgments in *Orissa Power Transmission Corporation Ltd. vs. Khageswar Sundaray & Ors.*, *Sudhir Kumar Consul vs. Allahabad Bank*, and *A.K. Bindal & Anr. vs. Union of India & Ors.*, which emphasized that VRS terms are decisive and that wage revision benefits cannot be claimed post-retirement. However, the court found that the CAT had correctly applied its mind and that the petitioner's circulars had promised wage revision benefits, justifying the CAT's directions.
Conclusion:
The court dismissed the writ petitions, upholding the CAT's judgment. The rule was discharged, and no costs were imposed. The interim orders were extended for eight weeks to allow the petitioner to seek further legal recourse.
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2012 (3) TMI 689
Issues involved: Challenge to order under Section 201(1) Cr.P.C regarding jurisdiction of court for trial under Section 138 of Negotiable Instruments Act.
Summary:
The petition challenges a magistrate's order directing the return of a complaint under Section 201(1) Cr.P.C. The complainant invoked the court's jurisdiction in Bangalore based on the cheque presentation and notice issuance in Bangalore. The petitioner argues that the complaint can be instituted where any act related to the offense occurs, citing Supreme Court judgments and Cr.P.C. provisions. The trial procedure under Section 143 of the N.I. Act allows for summary trials by designated magistrates. The completion of an offense under Section 138 involves multiple acts, including drawing the cheque, presenting it, notice issuance, and non-payment by the drawer. The petitioner contends that since the cheque was presented and notice issued in Bangalore, the court there has jurisdiction.
However, the Supreme Court precedent clarifies that the drawee bank, not the collecting bank, determines jurisdiction under Section 138. The court emphasizes the importance of service of notice for completing the offense and discourages multiple filings based on different locations of cheque presentation and notice service. The subsequent Supreme Court judgment must be followed. The petitioner's reliance on local judgments is dismissed, as the Supreme Court's interpretation prevails. A Madras High Court decision specifies the jurisdictions for trying Section 138 offenses based on cheque-related locations.
In conclusion, the court finds no grounds to interfere with the magistrate's order and dismisses the petition challenging the jurisdiction for trial under Section 138 of the N.I. Act.
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2012 (3) TMI 688
Issues involved: Winding up of a company u/s The Companies Act, 1956 due to non-payment of dues by the respondent company.
Summary:
The petitioner sought winding up of the respondent company, alleging non-payment for goods supplied. Despite reminders and dishonoured cheques, the respondent failed to pay. The petitioner issued notices, but the respondent alleged delays and short supply. After a statutory notice, the respondent refused to accept it. The petitioner filed a Company Petition, proving service on the respondent. An amount of Rs. 1,26,79,064 was due as of October 31, 2010. The respondent failed to pay, refused the statutory notice, and did not defend the petition. The court found the company unable to pay its debts and admitted the Company Petition, ordering its advertisement and depositing a publication charge. The order was to be forwarded to the respondent company's registered office.
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2012 (3) TMI 687
Issues Involved:
1. Opportunity to defend.
2. Disallowance of claim u/s 80IB.
3. Consideration of evidence.
4. Reliance on photograph.
5. Completion of project within stipulated time.
Summary:
1. Opportunity to Defend:
The assessee contended that a fair, proper, and meaningful opportunity was not afforded to put up a defense on the disputed issues. However, the judgment does not provide specific details on this issue, focusing instead on the substantive matters of the case.
2. Disallowance of Claim u/s 80IB:
The primary issue was the disallowance of the assessee's claim for deduction u/s 80IB(10). The Assessing Officer (AO) declined the claim on the grounds that the assessee had not obtained a completion certificate for the housing project. The CIT(A) upheld this disallowance, stating that the assessee did not fulfill the conditions laid down in clause (a)(i) read with Explanation (ii) of Section 80IB(10). The Tribunal confirmed that the completion certificate is a pre-condition for the deduction u/s 80IB(10).
3. Consideration of Evidence:
The assessee argued that the AO overlooked the papers and evidence furnished during the assessment. The Tribunal reviewed the records and found that the housing project was required to be completed by 31st March 2008, and a completion certificate was necessary. Since the assessee did not obtain this certificate, the claim for deduction was rightly disallowed.
4. Reliance on Photograph:
The CIT(A) upheld the AO's findings based on a photograph of house no. 84, which was deemed incomplete. The assessee contended that no deduction was claimed for house no. 84 as it was outside the scheme. The Tribunal did not find this argument sufficient to overturn the disallowance since the completion certificate for the entire project was not obtained.
5. Completion of Project within Stipulated Time:
The assessee claimed that the project was completed by 31st March 2008 and applied for the completion certificate on 15th January 2008, with reminders sent to the Municipal Corporation. The Tribunal noted that the completion certificate was not issued, and as per the provisions of the M.P. Municipal Corporation Act, 1956, the certificate is deemed issued if not granted within 15 days. However, the Tribunal found that the assessee did not meet the statutory requirement of obtaining the completion certificate, thus disallowing the deduction u/s 80IB(10).
Conclusion:
The Tribunal dismissed the appeals, confirming the disallowance of the deduction u/s 80IB(10) for the assessment years 2006-07 and 2007-08 due to the absence of a completion certificate, which is a mandatory requirement for the claim. The judgment emphasized the necessity of adhering to statutory requirements and the conditions laid down in the Income-tax Act.
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2012 (3) TMI 686
Issues Involved:
1. Adjustment in the price of international transaction.
2. Use of single year data vs. multiple year data.
3. Exclusion of certain comparables.
4. Risk adjustment in transfer pricing.
5. Benefit of 5% arm's length range.
6. Proportionate adjustment of transfer pricing.
7. Recognition of excess revenue under BSNL contract.
8. Disallowance of provision for warranty.
9. Deduction for prior period expenses.
10. Initiation of penalty proceedings u/s 271(1)(c).
Summary:
1. Adjustment in the price of international transaction:
The assessee challenged the adjustment made in the price of international transactions with its associate enterprises, resulting in an addition of Rs. 49,37,51,430 to the total income. The adjustment was based on the recommendation of the Transfer Pricing Officer (TPO) u/s 92CA(3) of the Income-tax Act, 1961. The TPO accepted the Transactional Net Margin Method (TNMM) but rejected three out of seven comparables identified by the assessee, leading to an arithmetic mean of 6.96% for the comparables.
2. Use of single year data vs. multiple year data:
The assessee argued for the use of multiple year data, but the TPO and Dispute Resolution Panel (DRP) used single year data for Financial Year 2005-06, as mandated by Rule 10B(4). The Tribunal upheld this approach, stating that the current year data must be used unless exceptional circumstances justify otherwise.
3. Exclusion of certain comparables:
The TPO excluded Arraycom India Ltd. due to persistent losses and reduced operations. The Tribunal upheld this exclusion, agreeing that persistent losses and reduced operations made Arraycom uncomparable.
4. Risk adjustment in transfer pricing:
The assessee claimed that it bore less risk compared to comparables and sought risk adjustment. However, the Tribunal found no merit in this claim as the assessee did not raise this issue before the TPO and failed to provide sufficient evidence.
5. Benefit of 5% arm's length range:
The assessee sought a standard deduction of 5% in the Profit Level Indicator (PLI) determined by the TPO. The Tribunal rejected this claim, following the precedent that the tolerance band is not a standard deduction but a range within which no adjustment is required if the transfer price is within ±5% of the ALP.
6. Proportionate adjustment of transfer pricing:
The assessee argued that the adjustment should be restricted to the value of the impugned international transaction with the A.E. The Tribunal remitted this issue to the Assessing Officer for re-adjudication, directing to quantify the arm's length price accurately.
7. Recognition of excess revenue under BSNL contract:
The assessee contested the recognition of excess revenue of Rs. 55,46,10,230 under the BSNL contract. The Tribunal found that the assessee failed to provide sufficient details and supporting documents. This issue was remitted to the Assessing Officer for re-adjudication with directions to the assessee to provide necessary details.
8. Disallowance of provision for warranty:
The assessee claimed a provision for warranty of Rs. 14,42,47,994, which was disallowed by the Assessing Officer due to lack of supporting evidence. The Tribunal remitted this issue for re-adjudication, directing the assessee to justify the claim with systematic data.
9. Deduction for prior period expenses:
The assessee claimed deductions for expenses amounting to Rs. 12,493,042 and Rs. 130,932,301, which were not claimed in the return filed u/s 139(1) or revised return u/s 139(5). The Tribunal entertained these grounds and remitted the issues to the Assessing Officer for verification and re-adjudication.
10. Initiation of penalty proceedings u/s 271(1)(c):
The ground regarding initiation of penalty proceedings was deemed premature and was rejected by the Tribunal. The defence against the penalty would be entertained in separate penalty proceedings if commenced by the Assessing Officer.
Decision:
The appeal of the assessee was allowed for statistical purposes, with several issues remitted to the Assessing Officer for re-adjudication.
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2012 (3) TMI 685
Issues involved:
The appeal challenges the order passed by a Single Judge of the High Court of Gujarat under Section 482 of the Code of Criminal Procedure, 1973, regarding the quashing of a complaint filed under various sections of the Indian Penal Code and the Dowry Prohibition Act.
Details of the Judgment:
Issue 1: Quashing of the complaint under various sections
The Appellant filed a complaint against Respondents 1 to 9 under Sections 498A, 494, 506(2) of the Indian Penal Code, and Sections 3 and 7 of the Dowry Prohibition Act. The High Court partly allowed the petition, quashing the complaint against Respondents 6 to 9 for bigamy allegations and ordered the deletion of the offense under Section 494 against Respondents 1 to 5. The Appellant appealed against this decision.
Issue 2: Interpretation of relevant legal provisions
The Court examined Section 494 of the Indian Penal Code, which deals with marrying again during the lifetime of a spouse, and Section 190 of the Code of Criminal Procedure, which outlines when cognizance of offenses can be taken by a Magistrate. Additionally, Section 198 of the Code pertains to prosecution for offenses against marriage, emphasizing that no court shall take cognizance of such offenses except upon a complaint by the aggrieved person.
Issue 3: Cognizance of offenses under different sections
The Court highlighted the importance of distinguishing offenses falling under Chapter XX of the Indian Penal Code, such as Section 494, from those in Chapter XXA, like Section 498A. It clarified that a complaint under Section 494 must be made by the aggrieved person, while Section 498A allows cognizance based on a police report or a complaint by the aggrieved person or their relatives.
Conclusion:
The Court held that the High Court's reliance on a previous judgment was misplaced, as it dealt with different offenses under Chapter XX of the Indian Penal Code. It emphasized that the police can legally investigate complaints involving offenses under both Section 498A and Section 494. Consequently, the appeal was allowed, setting aside the order to delete Section 494 from the complaint and directing the police to proceed with the investigation in accordance with the law.
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2012 (3) TMI 684
Issues involved: Appeal against order of Ld. Commissioner of Income Tax (Appeals) restricting addition made by Assessing Officer u/s. 145(3) on gross receipts.
Summary:
The appeal by the Revenue challenged the order of the Ld. Commissioner of Income Tax (Appeals) regarding the assessment year 2007-08. The Assessing Officer had rejected the books of accounts and applied net profit @10% on the gross receipts of the company. The Ld. Commissioner of Income Tax (Appeals) partially allowed the appeal, restricting the addition to 0.5% of the total gross receipts. The Revenue appealed against this order.
Upon hearing the contentions, the tribunal noted a similar case involving the assessee's group company where the disallowance was restricted to 0.5% of the contract receipt as disallowable expenditure. Following the principle of stare decisis, the tribunal remitted the matter back to the Assessing Officer for further consideration in line with the directions given in the previous order.
Therefore, the appeal filed by the Revenue was allowed for statistical purposes, and the matter was remitted back to the Assessing Officer for reevaluation in accordance with the tribunal's directions, ensuring the assessee's right to be heard.
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2012 (3) TMI 683
Issues involved:
The issue involved in this case is the treatment of loss in saree trading business as a bogus loss and the disallowance of the same by the Assessing Officer.
Treatment of loss in saree trading business:
The Assessing Officer disallowed a loss of Rs. 25,57,790 in the saree trading business, considering it as a bogus loss. The AO observed that the assessee had engaged in transactions that did not stand the test of human probabilities, citing decisions of the Hon'ble Supreme Court. On appeal, the CIT(A) upheld the AO's decision, stating that the explanation provided by the assessee was not convincing. The CIT(A) noted that there was no written contract, advance payment, or guarantee in the transactions, and the purchase and sale of sarees seemed to be managed to create a false impression of loss. The CIT(A) agreed with the AO that the loss was not genuine. However, the Tribunal set aside the orders of the revenue authorities, as the AO did not dispute the transactions with the party involved. The Tribunal found that there was no justification to disbelieve the assessee's contention, leading to the allowance of the appeal.
This judgment highlights the importance of providing convincing explanations and maintaining transparency in business transactions to avoid the disallowance of losses by tax authorities. The decision emphasizes the need for proper documentation and genuine business practices to support claims and avoid allegations of creating artificial losses for tax purposes.
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2012 (3) TMI 682
Issues Involved:
The issue involves the interpretation of the period prescribed for filing a complaint under Section 142 of the Negotiable Instruments Act, specifically determining whether the period should commence from the date the notice was refused or left unclaimed, or from the date when the refusal was notified by delivering the returned postal cover.
Judgment Details:
Issue 1: Commencement of Period for Filing Complaint
The complainant's appeal pertains to a case under Section 138 of the Negotiable Instruments Act, where the accused issued a dishonored cheque. The crux of the matter is whether the period for filing a complaint should start from the date of refusal of notice or from the date when the returned postal cover was received by the complainant.
Issue 2: Deemed Service and Date Calculation
The returned postal cover indicated that the postman served an intimation on a specific date, prompting the accused to argue that the refusal date should mark the commencement of the 15-day period for payment. However, the complainant contends that the date of deemed service should be when the returned postal cover is received, not when the notice was refused.
Issue 3: Interpretation of Proviso (c) to Section 138
The court deliberated on the interpretation of proviso (c) to Section 138 of the Negotiable Instruments Act, emphasizing the need for a practical and reasonable approach to determine the date of receipt of notice for the purpose of filing a complaint within the stipulated period.
Issue 4: Precedents and Legal Interpretation
Precedents such as Ibrahimkutty Haji v. State of Kerala and Gopalakrishnan v. Noorjahan were cited to support the argument that the date of deemed service should be when the complainant receives the returned postal cover, aligning with the principle that the cause of action arises upon the expiry of the notice period.
Issue 5: Application of Presumption of Deemed Service
The court emphasized that the presumption of deemed service should be invoked based on the date when the sender is notified of the failure to serve the notice, ensuring practicality and fairness in determining the commencement of the complaint filing period.
Conclusion:
The High Court allowed the appeal, overturning the acquittal and convicting the respondent under Section 138 of the Negotiable Instruments Act. The respondent was sentenced to imprisonment and ordered to pay compensation to the complainant within a specified timeframe, highlighting the importance of adhering to legal timelines and procedural requirements in such cases.
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2012 (3) TMI 681
The Supreme Court allowed the petitioner to withdraw the writ petition filed before the High Court with liberty to avail other remedies. The special leave petition was dismissed. (2012 (3) TMI 681 - Supreme Court)
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2012 (3) TMI 680
Issues Involved:
1. Transfer of criminal proceedings based on convenience.
2. Transfer of criminal proceedings based on personal security.
3. Allegations of bias against the presiding officer.
4. Vague allegations regarding interference in court proceedings.
Summary:
1. Convenience:
The Petitioners sought transfer of proceedings u/s 406 Code of Criminal Procedure, 1973, from the Special Judicial Magistrate (CBI) Ghaziabad, U.P., to a court of competent jurisdiction in Delhi/New Delhi on grounds of convenience. They argued that residing in the same premises where the murder occurred was impossible, necessitating their move to New Delhi, making it more convenient to face trial there. They also highlighted the distance and travel time between Noida, Ghaziabad, and New Delhi, and the inconvenience to witnesses and CBI officials based in Delhi. The Court rejected this plea, emphasizing that inconvenience cannot justify the transfer of criminal proceedings. The jurisdiction of a court is determined by the provisions of the Code of Criminal Procedure, not by convenience or distance.
2. Personal Security:
The Petitioners contended that their personal security was at risk due to a vicious attack on Dr. Rajesh Talwar within the court premises at Ghaziabad. They cited a previous incident where Dr. Rajesh Talwar was attacked with a cleaver knife, causing grievous injuries. The Court noted that the attack was by a psychologically disturbed individual and not aimed at disrupting court proceedings. The Court also took note of the enhanced security measures implemented by the Sessions Judge, Ghaziabad, and assurances from the CBI and State Administration regarding the Petitioners' safety. The Court found no merit in the plea for transfer based on personal security.
3. Allegations of Bias:
The Petitioners alleged that they were unlikely to get justice as the Ghaziabad court was proceeding with a pre-determined mind. This assertion was based on the rejection of their application for exemption from personal appearance and the issuance of bailable warrants against them. The Court found these allegations baseless and warned the Petitioners against making irresponsible insinuations. The Court emphasized that such allegations, especially when the High Court had rejected their challenge, were contemptuous.
4. Vague Allegations:
The Petitioners' counsel submitted an affidavit alleging interference by unrelated advocates during court proceedings. The Court found these allegations vague and lacking specific details, such as the identity of those responsible. The Court held that such vague allegations could not justify the transfer of proceedings.
Conclusion:
The Supreme Court dismissed the Transfer Petitions, concluding that the Petitioners would receive a fair trial at Ghaziabad. The Court emphasized that the grounds for transfer were speculative and based on unjustified apprehensions. The Court reiterated that the order dated 25.1.2011 by the Special Judicial Magistrate (CBI), Ghaziabad, ensuring the Petitioners' safety, should be enforced in letter and spirit. The Court cautioned the Petitioners against making irresponsible insinuations regarding court proceedings.
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2012 (3) TMI 679
Issues involved: Appeal against the order of Director of Income-tax Exemptions, Chennai regarding eligibility for registration u/s 12AA of the Act based on the objects of the assessee trust.
Issue 1: Eligibility for registration u/s 12AA of the Act
The issue in this appeal was against the action of the DIT in holding that the assessee was not eligible for registration u/s 12AA of the Act due to one of the objects of the assessee trust relating to developing and maintaining places of worship and promoting god consciousness. The assessee argued that the decision of the Hon'ble jurisdictional High Court of Madras in the case of Arulmigu Kamakshi Amman Trust supported their eligibility for registration u/s 12AA. The High Court's decision highlighted that the income derived from property held under trust wholly for charitable or religious purposes should not be included in the total income of the trust, irrespective of whether the trust was created with charitable or religious purposes. The Tribunal, considering this legal provision, allowed the appeal, stating that the law does not disqualify a trust from applying for registration u/s 12AA based on the objects of the trust. Therefore, the Tribunal's decision was upheld, and the assessee was granted registration u/s 12AA of the Act.
In conclusion, the appeal filed by the assessee was allowed, and the DIT was directed to grant registration u/s 12AA of the Act based on the decision of the Hon'ble jurisdictional High Court.
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2012 (3) TMI 678
Issues involved: Appeal by Revenue u/s 260A of Income Tax Act, 1961 regarding ITAT order for Assessment Year 1995-96.
First issue: Whether 90% of income by way of lease rent need not be reduced u/s 80HHC for computation of deduction. Tribunal followed SC judgment in Laxmi Machine Works case and remitted proceedings to AO for computation, no substantial question of law.
Second issue: Whether ITAT was justified in allowing relief of Rs. 14,40,51,077 u/s 80I without appreciating AO's reasons for reducing claim. Counsel states recent judgment in favor of Assessee would govern the matter, no substantial question of law.
Third issue: Whether Pimpri II and Urse II units qualify for separate deduction u/s 80I as expansion of existing industrial undertakings. Counsel relies on recent judgment in favor of Assessee, no substantial question of law.
Fourth issue: Whether Tribunal should have applied Kerala High Court's decision in Periyar Chemicals Ltd. case. Not considered separately.
The High Court dismissed the appeal, stating no substantial question of law arises for the first, second, and third issues based on recent judgment favoring the Assessee. The fourth issue was not separately considered. No order as to costs was given.
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2012 (3) TMI 677
The Supreme Court of India granted leave, expedited the hearing, and did not grant a stay in the case. The citation is 2012 (3) TMI 677. Justices A.K. Patnaik and Swatanter Kumar were involved. Petitioner's representatives were Mr. Preetesh Kapur, Mr. Ashok Kulkarni, Mr. Abhay A. Jena, Ms. Bina Gupta, and Ms. Radhika Mathur. Respondent's representatives were Mr. R.P. Bhatt, Mr. Imtiaz Ahmed, Mr. F.A. Ayyubi, and Ms. Anil Kati
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2012 (3) TMI 676
Issues involved: Criminal revision petition u/s 397 and 401 Cr.P.C against judgment convicting for offence u/s 138 of Negotiable Instruments Act, 1881.
Summary:
1. The respondent filed a complaint u/s 138 of the Act against the petitioner for dishonoring a cheque. The petitioner denied owing any amount to the respondent.
2. The complainant presented the cheque which was dishonored, leading to a legal notice and subsequent complaint.
3. The convict claimed innocence and false implication, denying any liability towards the complainant.
4. The convict did not provide any evidence in his defense.
5. The convict appealed the conviction but was unsuccessful, leading to the current revision petition.
6. The counsel for the convict argued lack of proof of nexus with the firm, citing relevant legal precedents.
7. The counsel for the complainant contended that the complainant had proved his connection with the firm.
8. The court considered the arguments and legal precedents, including the requirement for the complainant to prove nexus with the firm.
9. The court referred to the Supreme Court's ruling in Milind Shripad Chandurkar case regarding maintaining a complaint u/s 138 of the Act.
10. The court analyzed the evidence and found the complainant's proof of nexus with the firm insufficient.
11. The court allowed the revision petition, setting aside the conviction and ordering the refund of the fine to the convict if realized within the prescribed time.
This summary provides a detailed overview of the legal judgment, including the issues involved, arguments presented by both parties, analysis of evidence, and the final decision of the court.
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2012 (3) TMI 675
Issues Involved:
1. Maintainability of the Writ Petition.
2. Validity of Lokayukta's Report.
3. Compliance with Section 9(3) of the Karnataka Lokayukta Act (KL Act).
4. Prima facie case for registering the FIR.
5. Validity of Sanction Order by the Governor.
6. Final Order.
Summary:
Issue 1: Maintainability of the Writ Petition
The respondents argued that the Writ Petition is not maintainable because an earlier Writ Petition (No. 29430/2011) was dismissed as withdrawn unconditionally, and the remedy lies u/s 482 of Cr.P.C. The Court held that the dismissal of the earlier Writ Petition does not bar the present one since the case was not decided on merits, and thus, the doctrine of res judicata does not apply. The Court also held that the provision u/s 482 of Cr.P.C. cannot take away the jurisdiction of the Court under Articles 226 and 227 of the Constitution of India.
Issue 2: Validity of Lokayukta's Report
The petitioner contended that the Lokayukta's report was outside the scope of reference and violated principles of natural justice. The Court found that the report by Lokayukta was not within the scope of the reference made by the Government u/s 7(2A) of the KL Act. The Court emphasized that the Lokayukta, being a quasi-judicial authority, must follow the principles of natural justice and provide a hearing to the petitioner.
Issue 3: Compliance with Section 9(3) of the KL Act
The Court held that even in cases referred u/s 7(2A) of the KL Act, the Lokayukta must comply with clauses (a) and (b) of sub-section 3 of Section 9, which includes forwarding a copy of the complaint to the public servant and affording an opportunity to offer comments. The Court noted that the Lokayukta failed to comply with these mandatory provisions.
Issue 4: Prima facie case for registering the FIR
The Court found that there was no prima facie case made out by the Lokayukta for registering a case for the offences u/s 7, 8, 9, and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. The Court emphasized that suspicion cannot be a ground to tarnish the image and reputation of a person holding a constitutional post.
Issue 5: Validity of Sanction Order by the Governor
The Court held that the order of sanction granted by the Governor to initiate criminal proceedings against the petitioner was liable to be quashed. The Court noted that the petitioner was condemned unheard, leading to a violation of the principles of natural justice.
Final Order
The Writ Petition was allowed. The complaint dated 22.8.2011, the FIR registered in Crime No. 36/2011 for the offences u/s 7, 8, 9, and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, the Order of Sanction dated 2.8.2011, and the relevant portion of the Report at Chapter-XXII of the Karnataka Lokayukta dated 27.7.2011 were quashed.
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