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Showing 41 to 60 of 1477 Records
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2016 (4) TMI 1438
Reopening of assessment u/s 147 - information received from the Investigation Wing of the Department that there was credit shown in the bank account of the assessee coming from the account of Rubik Exports Ltd. - HELD THAT:- Admittedly, the material and statements of some persons on the basis of which the Investigation Wing of the Department claimed to have arrived at a conclusion that the assessee had taken accommodation entry, despite request of the assessee made to the AO, were not supplied to the assessee nor any opportunity to cross examine those persons whose statements were used against the assessee was afforded to the assessee. Even approval of the competent officer has not been obtained as a token of his satisfaction on the reasons recorded by the AO for initiation of reopening proceedings in the manner prescribed under sec. 151 - We thus respectfully following the ratios laid down in the above cited recent decisions in the cases of G & G Pharma India Ltd. [2015 (10) TMI 754 - DELHI HIGH COURT] and Signatures Hotel P. Ltd. [2011 (7) TMI 361 - DELHI HIGH COURT] hold that initiation of reopening proceedings in the present case, merely based on the vague information received from the Investigation Wing of the Department, without application of mind by the Assessing Officer thereupon and in absence of obtaining of approval in the manner provided u/s 151 of the Act, was not valid and the assessment in question framed in furtherance thereto is held void-ab-initio and is accordingly quashed. The ground Nos. 1.1 and 2 are thus allowed.
Addition u/s 68 - We find substance in the above submission of the learned senior counsel that by furnishing all the primary evidences like confirmation of share applicant, a public limited company containing their address and PAN, their balance sheet and profit and loss account for the assessment year under consideration, their income-tax return acknowledgement and with this admitted position that the share application money of Rs. 5 lacs has been paid by the share applicant to the assessee through account payee cheque, the assessee had discharged its primary onus to establish the genuineness of the claimed receipt of share application money and the onus was thereafter shifted upon the AO to rebut the same. AO instead has made the addition merely on the basis of information received from the Investigation Wing of the Department alleging that the share applicant is entry provider, summons issued to the share applicant returned unserved and an amount was deposited in the account of the share applicant immediately before issuing cheque for the amount to the assessee. In absence of such discharging of onus shifted upon the AO, AO was not justified in making the addition in question and the Learned CIT(A) without appreciating the above material facts has also erred in sustaining the said addition. We thus while setting aside orders of the authorities below in this regard direct the AO to delete the addition questioned in ground No.1.
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2016 (4) TMI 1437
Admissibility of appeal - Utilization of Cenvat credit for payment of education cess and secondary and higher secondary education cess - HELD THAT:- Tax appeal is, admitted for consideration of following substantial question of law:
Whether in the facts and circumstances of the case, the Tribunal was right in allowing the appeal of the assessee when the demand of Central Excise Duty was in respect of utilization of Cenvat credit of Basic Excise Duty for discharge of Education Cess payable on finished goods for the period July, 2009 to August, 2009 during which the assessee was availing the benefits of area based exemption under Notification No. 39/2001-C.E., dated 31-7-2001?
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2016 (4) TMI 1436
Certificate of tax recovery at source in FormJVAT 400 in favour of the petitioner-firm, not issued - grievance of the petitioner is that M/s Hindustan Steel Works Construction Limited made payment to the petitioner after deducting VAT at source - HELD THAT:- The writ petition is bereft of foundational facts for seeking Mandamus to the respondentM/s Hindustan Steel Works Construction Limited to issue FormJVAT 400 to the petitionerfirm. The petitioner has failed to produce a document which would disclose deduction on account of VAT for the works contract by M/s Hindustan Steel Works Construction Limited, for which the respondentM/s Hindustan Steel Works Construction Limited is under a duty to issue certificate in FormJVAT 400. Reliance placed by the petitioner on a clause in the Letter of Intent which provides that the rates are inclusive of sales tax and tax on works contract and if applicable, sales tax/tax at works contract @ 2% would be deducted and TDS for the same would be issued in due course, is also misconceived.
Whether any amount has been deducted by M/s Hindustan Steel Works Construction Limited from the payments made to the petitioner for which it is under a statutory duty to issue FormJVAT 400 or not is a question of fact which cannot be ascertained in the present proceeding. The petitioner kept quiet for long 7 years and did not raise a grievance for nonissuance of FormJVAT 400. If at all, it is found that tax deduction at source has been done from the running bills of the petitioner still, the petitioner has failed to establish that the respondent M/s Hindustan Steel Works Construction Limited is under a legal duty to issue the said certificate. In fact, pursuant to order of the Commissioner of Commercial Taxes Department, pending assessment of the petitionerfirm by the Assessing Authority, the present writ petition appears to be premature also.
The writ petition stands disposed of with liberty to the petitioner to avail remedy under the Jharkhand Value Added Tax Act, 2005 - Application dismissed.
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2016 (4) TMI 1435
Allowable business expenses u/s 37(1) - expenses incurred for the running of the business of the assessee OR Income from house property - nature of advertisement expenses and business promotion expenses debited under the head “Administrative and Selling Expenses” - possibility of common expenditure - Revenue’s case is that, for earning of rental income, amount should be disallowed on the ground that, this much amount should be allocated for the earning of the rental income from the amount of expenses debited under the head “Administration & Selling Expenses” as appearing in Schedule “E” above - HELD THAT:- From the clear cut covenants and terms of the agreement, it is abundantly clear that the assessee does not have to incur any administrative expenditure for running and maintenance of the Mall and, therefore, in the light of these facts and background, it cannot be held that any administrative expenditure should be allocated for running of the Mall.
On a perusal of expenditure debited under Schedule E, as incorporated above, it is seen that the assessee has debited sum under the head “Advertisement” and under the head “Business Promotion Expenses”. Further, from a perusal of break-up of these expenses which was filed before the CIT(A), we find that certain amounts have been debited for “Mall Upkeep & Promotional receipt”.
If these expenditures are related for earning of income from Mall then, definitely it cannot be allowed as an expenditure under section 37(1) i.e. while computing the business income of the assessee, because admittedly, receipts from the Mall is in the form of lease rental which has been assessed under the head “Income from House Property” like in the earlier and subsequent years. This fact needs proper verification and examination by the AO which has not been done in the proper prospective.
This matter should be restored back only for the limited purpose of examining the nature of advertisement expenses and business promotion expenses debited under the head “Administrative and Selling Expenses” as enumerated in Schedule E of the Profit & Loss Account. If these expenditures directly attributable to earning of lease rental income then, appropriate disallowance can be made, if at all required. With this direction this issue is treated as partly allowed for statistical purposes.
Disallowance made u/s 14A - incurring of any expenditure in respect of earning of the exempt income - HELD THAT:- CIT(A) has referred to the earlier order of the CIT(A) and Tribunal for the assessment year 2008-09, however before us, nothing relating to A.Y. 2008-09 has been filed before us. In any case, we find that, assessee’s claim with regard to non-incurring of any expenditure for earning of exempt income has not been examined by the AO, as per the requirement of section 14A(2) and (3). The AO has blindly followed Rule 8D without complying with the mandatory requirement of section 14A(2) and (3). Therefore, in the interest of justice, we are restoring this issue to the file of the AO to examine the nature of accounts of the assessee and also the contentions raised before us that all these investments are strategic investment made in the subsidiary company and decide the issue afresh and in accordance with the law. Accordingly, ground as raised by the assessee is treated as allowed for statistical purposes.
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2016 (4) TMI 1434
Prosecution or other legal proceedings relating to Police officers - Institution of proceedings without prior sanction of the Central Government, is allowed or not - Section 6 of Punjab Disturbed Areas Act, 1983 - HELD THAT:- It has been laid down in Gauri Shankar Prasad [2000 (4) TMI 848 - SUPREME COURT] that in case offence has been committed while discharging his duties by an accused and there is a reasonable nexus with official duties, if answer is in the affirmative then sanction is required. However it would depend upon the facts and circumstances of each case whether there is a reasonable nexus with official duties to be discharged.
In PK PRADHAN VERSUS THE STATE OF SIKKIM REPRESENTED BY C.B.I. [2001 (7) TMI 1298 - SUPREME COURT] this Court considered the provisions contained in Section 197(1) of the Code of Criminal Procedure whether an offence committed "while acting or purporting to act in the discharge of his official duty" and laid down that the test to determine the aforesaid is that the act complained of must be an offence and must be done in discharge of official duty. In any view of the matter there must be a reasonable connection between the act and the official duty. It does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only later when the trial proceeds. However no sanction is required where there is no such connection and the official status furnishes only the occasion or opportunity for the acts.
In STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND ORS. VERSUS GANESH CHANDRA JEW [2004 (3) TMI 824 - SUPREME COURT] this Court has held that protection Under Section 197 is available only when the act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection it will not deprive him of the protection. This Court has also observed that there cannot be a universal Rule to determine whether there is a reasonable connection between the act done and the official duty nor is it possible to lay down any such rule.
In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment.
Appeal disposed off.
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2016 (4) TMI 1433
Undisclosed investment in stock - excess stock found during the course of survey - HELD THAT:- As observed from the assessment order that on 07/01/2004, the assessee surrendered Rs. 3 Lac as income from undisclosed source as the assessee could not reconcile the difference in stock - AO has simply made the addition of the balance amount being excess stock found during the course of survey without considering the reconciliation submitted by the assessee before him. The addition was made merely on the basis of difference in stock found between the books of accounts and the physical tally of the stock.
AO was not justified in rejecting the explanation of the assessee submitted before him together with the reconciliation of the stock without verification and pointing out error therein. No material was brought on record by the Revenue to show that there was in fact any amount of undisclosed income in the form of excess stock more than Rs. 3 Lac disclosed by the assessee. In absence of the same, we find that the addition made by the Assessing Officer and sustained by CIT (Appeals) cannot be upheld. We, therefore, set aside the orders of the lower authorities and delete the addition and allow the ground of appeal of the assessee.
Disallowance under the head interest expenditure - AO found that the assessee had paid interest to three persons @ 18%, 20.52% and 19% which was excessive and according to him, the prevailing market rate of interest was 12% - HELD THAT:- We find that the disallowance has been made by AO on account of interest paid to relatives under sec. 40A(2) of the Act. We find that the Assessing Officer has brought no material on record to show that how the interest paid by the assessee was excessive by comparing it with the market rate of interest on loan on the date of taking of the loan by the assessee. In absence of the same, in our considered view, the disallowance made by the Assessing Officer and confirmed by the Commissioner of Income Tax (Appeals) cannot be sustained in law, hence, delete the disallowance of interest expenditure and allow the ground of appeal of the assessee.
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2016 (4) TMI 1432
Exemption u/s 11 - grants/contribution received by the assessee from different organisations, are in the nature of tied-up grants and thus cannot be taken into consideration for the purpose of computing total income of the assesses u/s 11 - HELD THAT:- As tri - partied agreements clearly states the budgets sanctioned, the responsibilities of Resource, implementing and Facilitating Agencies in the case of projects which are meant to be implemented thru partner NGOs. Whereas the projects which are implemented through the Assessee, the agreements are entered into with Assessee as implementing Agency along with the budget proposals sanctioned. These co-operative documents are clearly demonstrate that these grants are sanctioned for the specific purpose and the Assessee and NGOs are required to submit the audit financials and progress reports to the Resource agency. These transactions are subject to ethical audits. Since these projects are driven in the direction of the resource agency and accordingly the grants are sanctioned, are clearly demonstrate that these are tied up grants. Since the tied up grants cannot be treated as the income of the society as per the ratio laid down in the case of Nirmal Agricultural Society [1998 (12) TMI 106 - ITAT HYDERABAD-B]
We are inclined to hold that the above grants are in the nature of tied up and Assessee has no control over the funds except facilitating to implement the projects. Hence Ground raised by the revenue are dismissed.
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2016 (4) TMI 1431
Ex-parte orders of the CIT(A) - denial of justice - whether CIT(A) has not given proper opportunity to the assessee and dismissed the appeals of the assessee ex-parte? - HELD THAT:- As all these appeals were dismissed by ex-parte orders of the CIT(A) observing that none appeared before him nor adjournment petition was filed - we restore all these appeals back to the file of the CIT(A). The CIT(A) shall decide the appeals after providing adequate opportunity to the assessee. The assessee shall co-operate with the appeal proceedings. With the above observation, the appeals are allowed for statistical purposes.
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2016 (4) TMI 1430
Reopening of assessment u/s 147 - Reasons to believe - ATM is a computer or ought to be treated as normal plant and machinery, attracting different rates of depreciation - reason for reopening being merely a change of opinion on account of the assessment being made for the subsequent years would not give the AO the jurisdiction to reopen - HELD THAT:- There is a delay of 234 days in filing this Special Leave Petition and we do not find any justifiable reason to condone this huge delay.
Special Leave Petition is, accordingly, dismissed on the ground of delay. However, the question of law is kept open.
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2016 (4) TMI 1429
Revision u/s 263 - Reopening of assessment u/s 147 order set aside by CIT - Disallowance u/s 40(a)(ia) towards payment made by assessee to one JD Fabricators and verify the claim of the assessee with regard to the payment made as claimed as purchase instead of professional charge - HELD THAT:- We are totally at loss to perceive such action of the CIT. AO in exercise of quasi judicial powers and on consideration of reply of the assessee on the issue which is subject matter of agitation, has categorically recorded that the disallowances have been correctly made and no discrepancy subsists. Thus, the very issue for which S. 147 was invoked was addressed to the satisfaction of the Assessing Officer on facts.
A communication by the Assessing Officer to the CIT captioned ‘final reply in respect of internal audit objection in the case of M/s Laxminarayan Associates A.Y 2005-06’ wherein it was explained to the CIT that the disallowance under S. 40(a)(ia) could not be invoked owing to its inapplicability citing objective facts
CIT has not demonstrated any perversity in such conclusion on facts while invoking powers under S. 263 of the Act. Needless to say, once an enquiry on the issue has been carried out and a conclusion thereon has been arrived at by the Assessing Officer, the same cannot be interfered with under S. 263 merely because the Commissioner wants it to be carried out in particular way.
Mere disagreement of the CIT with the order of the Assessing Officer would not in our view render such order erroneous. We find that it cannot be said that the Assessing Officer has acted perfunctorily while dropping the proceedings. Mere ipse dixit of the CIT is not the best foundation for invoking powers under S. 263 of the Act.
We find considerable merit in the arguments canvassed on behalf of the Assessee for cancellation of the order of CIT. - Decided in favour of assessee.
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2016 (4) TMI 1428
Disallowance on account of interest on unsecured loans paid in excess of 18% to the persons specified u/s 40A(2)(b) - assessee company has paid interest at the rate of 21% on unsecured loans to the persons specified u/s 40A(2)(b) - AO has found the same to be excessive and has disallowed interest paid in excess of 18% and made an addition HELD THAT:- What needs to be appreciated is that the AO and LD CIT(A) have failed to appreciate the distinction between a secured loan and an unsecured loan. The secured loan comparatively carried a lower risk element as compared to an unsecured loan and basis the risk assessment and other considerations, it typically carried a lower rate of interest.
In the instant case, the appellant has taken unsecured loan and an appropriate comparison would have been the rate prevalent in the market vis-a-vis unsecured loan. Apparently, the appellant has stated that the prevailing market rate of interest on unsecured loans was 24%. However, nothing has been brought on record by the AO to suggest what the appellant has stated to be incorrect or there is a better comparison which is available.
We have gone through the judgement of Ramesh Chand (HUF) [2013 (2) TMI 151 - PUNJAB & HARYANA HIGH COURT] wherein addition was made in appellant's case because of higher rate of interest paid by appellant to his mother as against market rate. The High Court confirmed the addition on the ground that since transaction in question was not a genuine and bona fide transaction, Tribunal was justified in confirming addition of interest paid on old loan at higher rate of interest by applying provisions of section 40A(2)(b) and no question of law arises. In the instant case, there is no such allegation or finding of the lower authorities that the subject loan transaction was not a genuine transaction. Hence, this decision is no help to the Revenue.
We have also gone through the decision of Aditya Medisales Ltd [2010 (5) TMI 823 - GUJARAT HIGH COURT] and finds that the same support the case of the appellant. In that case, the Court has noted that the interest on unsecured borrowings is always higher than the rate of interest paid to the banks or financial institution from where the loans raised are secured loan, and have accordingly accepted interest paid to Sun Pharmaceuticals at the rate of 24% to be reasonable.
We are of the view that CIT(A) was not justified in confirming the disallowance on account of interest paid by the appellant to specified persons u/s 40A(2)(b) of the IT Act. Hence, ground of the appellant is allowed.
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2016 (4) TMI 1427
Disallowing the provisions made in DMT division - assessee has not given details and these expenses pertains to earlier years or subsequent years - HELD THAT:- Assessee stated that this issue is covered against the assessee by the tribunal’s order in assessee’s own case for A.Y. 2003-04 [2015 (7) TMI 910 - ITAT MUMBAI] burden to prove its return, as well as claims preferred thereby, is only on the assessee, and which we find as not discharged to that extent. It may also be clarified here that the assessee had been extended sufficient opportunity to present its case. Needless to add, the assessee is a liberty to make a fresh claim for the subsequent year/s, even as it shall have to be shown by it that expenditure as claimed had arisen for those years, i.e., of payment, each year being independent. We may though clarify that we are not making any observation with regard to the deduction of the said expenditure for those years/s. We decide accordingly, dismissing the assessee’s ground.
Disallowance u/s. 14A r.w.r. 8D - assessee stated that these two assessment year are A.Ys. 2004-05 and 2005-06 and Rule 8D is not applicable in these two assessment years - HELD THAT:- As assessee stated that prior to the applicability of Rule 8D of the Rules, the disallowance should be restricted to a reasonable extent, i.e., 1% to 2% in view of the decision of M/s. Godrej Agrovet Ltd [2014 (8) TMI 457 - BOMBAY HIGH COURT] On query form the Bench, the ld. Sr. (DR) also conceded that of reasonable disallowance on this issue can be made and requested for estimation of disallowance of 2%. On this, the ld. Counsel for the assessee very fairly agreed for the same. In view of the above concession given by both the parties, we direct the A.O. to recompute the disallowance by estimating at 2% of the exempt income. The A.O. is directed accordingly.
Disallowance of deduction u/s. 80-HHC - Whether CIT(A) erred in holding that in case there is negative profit as per computation under clause (a), (b) and (c) of sub section (3) of section 80HHC, the appellant would not be entitled to deduction as per proviso of the section - HELD THAT:- As computation of the deduction u/s. 80HHC, and which was, at the very outset, again, admitted by the ld. AR to be squarely covered against the assessee by the decision of the Apex Court in the case of Ipca Laboratories Ltd. [2004 (3) TMI 9 - SUPREME COURT] We, accordingly, direct for computation of deduction u/s. 80HHC in terms of the said decision by the said hon’ble apex court.
Disallowance of expenses for earning exempt income u/s. 14A while computing income u/s. 115JB - HELD THAT:- As assessee stated that the additions to be restricted to the amount disallowed u/s. 14A of the Act by CIT(A) in the normal provisions because the Rule 8D of the Income Tax Rules will not apply in these two assessment years. In view of the above, we are of the view that the disallowance should be restricted to the extent amount already disallowed u/s. 14A of the Act and not exceeding the same. We order accordingly.
Disallowance of provision of expenses - HELD THAT:- We direct the A.O. to verify the fact of taxation of this provision of expenses in earlier year. In case these provisions in expenses have taxed in earlier years, the same when reversed should not be taxed. We direct the A.O. accordingly assessee’s appeals are partly allowed for statistical purposes.
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2016 (4) TMI 1426
Validity of award and the decree passed by the Motor Accidents Claims Tribunal - Quantum of compensation awarded by the Tribunal - assessment of permanent disablement and possibly functional disability - HELD THAT:- Considering the date of accident (1.7.2011), the age (27 years) and the profession of the injured (Machine Operator), this court is not inclined to interfere with the compensation granted in a sum of Rs.12,66,940/- towards loss of future income. On the basis of the medical bills produced, the Tribunal granted a sum of Rs.3,71,000/- towards medical expenses. Hence, the same is confirmed.
It is found that the claimants choose to examine a ‘select group of Doctors’ virtually ‘practising’ in this jurisdiction. The insurance companies and transport corporations repeatedly complain that they are ‘stock witnesses’ and challenge their assessments, even if accepted by claims tribunals after discounting the same. It is noted that some decisions which have been critical of the mode and manner of assessment of disability by these Doctors who regularly appear before the claims tribunals. It is not rocket science to identify the personnel who appear in these proceedings as they are found in the list of witnesses before various claims tribunals all over the State, very regularly. That has been the major grouse or grievance of the insurance companies and transport corporations that these medical professionals do not follow proper practices and their assessments are tilted to advance the interest of the claimants, at times, unfairly. This procedure and practice in assessment of permanent disability by various Doctors in various claims tribunal have led to huge pendency of appeals before this Court also.
The sequence of facts, has led to believe that if there was a uniform and consistent practice and procedure in the assessment of permanent disablement and possibly functional disability thereof, then the scope for expeditious disposal of claims may be possible and avoidance of appeals may also become feasible.
This Court has pointed out to Central Government Notification on assessment of disability - it is found that Disability (Permanent Physical Impairment) –Assessment and Certification- Guidelines & Gazette Notification- issued by Ministry of Social Justice & Empowerment, Government of India- Regd No.DL33004/99 ( Extraordinary) Part II, Sec 1, June,13, 2001- published by National Institute for the Orthopaedically Handicapped, is a comprehensive test and manual put in place. On going through the same, it is found that it has been drafted and crafted meticulously and has given formula which may lead to arithmetical accuracy in assessment of permanent disability. Or at least it reduces the scope for divergence in assessment and introduces the much needed element of uniformity and consistency in assessment of permanent disability.
It is felt that if certificates of permanent disability are issued by Medical Boards in the Districts where the claims are pending and they are based on the Central Government Circular dt.13/6/2001, then scope for challenge of the same may be driven out to a large extent. In addition thereto, a positive fall out could be that such certificates could be marked without the need to examine the Medical Doctors , who are otherwise required to be examined. Time taken for proving the permanent disablement may be shortened and the proof also would be credible, authentic, uniform and consistent. It would be much needed and most welcome medicine for this jurisdiction now infested with far too many claims thanks to the burgeoning number of motor accidents. We have little hesitation in commending its acceptance as early as possible.
The infrastructure must be in place before the Medical Boards for facilitating the issue of such certificates of disability. Equally, the stake holders need to get ready for this changed dispensation which would result in marking of the certificate of disability from the Medical Boards as a matter of course without need to have them marked through witnesses or be subjected to cross examination as before. There should be no difficulty to embrace this procedure is mandated to be Summary in nature ( Sec.169). So be it. There cannot be complaint or grouse from either side for the remedy of credibility, authenticity allied with uniformity and consistency would overwhelm any other aspect - The sorely missing element of uniformity and consistency would surely lead to early disposal of claims and possible settlements of the same. Further, scope for dispute in appeals on divergence in assessments of disability would be considerably reduced. In effect, the procedure hit upon and devised for follow up and practice would go a long way in aiding and assisting the Parliamentary mandate to provide speedy succor and relief to innocent motor accidents claims. It would truly be a win win situation for all stakeholders concerned.
It is directed that in motor accidents claims the claims tribunals shall issue a letter to Medical Board in the District of Tamil Nadu. Within whose jurisdiction the claim petition was pending and in case there was no Medical Board in the said District to the nearest District Medical Board, to examine the injured claimant/victim and issue a certificate of disability within such time as may be specified by the claims tribunal - the Medical Board/s shall assess the permanent disability or lack thereof as per the Disability (Permanent Physical Impairment) –Assessment and Certification- Guidelines & Gazette Notification- issued by Ministry of Social Justice & Empowerment, Government of India- Regd No.DL33004/99 (Extraordinary) Part II, Sec 1, June,13, 2001- published by National Institute for the Orthopedically Handicapped - the High Court Registry shall issue a Circular on these directions along with the judgment with reasons to be sent to Medical Boards in all Districts of Tamil Nadu through the Registry of the District Courts in Tamil Nadu, as soon as possible.
The award and the decree passed by the Tribunal are confirmed - appeal dismissed.
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2016 (4) TMI 1425
Seeking direction to the respondents to create cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996 - HELD THAT:- It is pointed out that the Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (hereinafter referred to as 'the Act of 2003') and Himachal Pradesh Judicial Service Rules, 2004 (hereinafter referred to as 'the Rules of 2004') have already come into force. Section 1(3) of the Act of 2003 states that the Act should be deemed to have come into force on 1st day of July, 1996.
The cadre of Civil Judge (Senior Division) was constituted from 20th March, 2004. As per Rule 3 of the Rules of 2004 the following categorization in the cadre of Civil Judge (Senior Division) and Civil Judge (Junior Division) has been formulated. However, sub-Rule (2) of Rule 1 of the Rules of 2004 states that the Rules shall come into force from the date of publication in the Official Gazette and the Gazette Publication was on 20th March, 2004. In the light of the said prescription made in the Rules after the categorization was made under Rule 3(3), the grievance of the applicant has now surfaced. The grievance of the applicant, as rightly pointed out by Mr. Patil, learned senior counsel, based on their prescription contained in Section 3 of the Act of 2003 read along with Section 4, even if the categorization came to be made under the Rules of 2004, the same should have been given effect rto retrospectively, in consonance with the specific provisions contained in the referred Sections 3 and 4 of the Act of 2003 - the prescription under sub-Rule (2) of Rule 1 of the Rules of 2004 and the Gazette Publication dated 20.3.2004 cannot supersede the specific provision contained in Section 3 and 4 of the Act of 2003, more so, when the Act of 2003 was deemed to have come into force with effect from 1st day of July, 1996.
Thus, the first prayer of the petitioner merits acceptance and the same is granted and the respondents are directed to create cadre of Civil Judge (Junior Division) and Civil Judge (Senior Division), as prescribed under the Rules of 2004, and give effect to the same on and from 1.7.1996 with all consequential benefits accrued to those officers who hold the respective cadre post as from that day.
Seeking direction to the respondents to follow “post based roster” in appointments to the cadre of District Judges with effect from 31.3.2003 - HELD THAT:- It is required to ascertain as to how the 34 point roster for the three different channel are to be worked out. The High Court is, therefore, directed to apply Rule-13 which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees and direct recruits and carry out the said exercise from 31.3.2003.
The High Court is directed to place the said Report after carrying out the said exercise, to pass further orders. We only direct the High Court to carry out the said exercise within a period of two months - List on 14.7.2016.
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2016 (4) TMI 1424
Levy of late filing fees u/s 234E - assessee submitted that late payment u/s 234E was levied prior to amendment to section 200A - HELD THAT:- As provisions accepting levy of late filing fees under section 234E have indeed been brought to the statute w.e.f. 1st June, 2015 and the impugned order was passed much before that date.
As following the order of the Tribunal in the case of Dharti Associates [2015 (9) TMI 1428 - ITAT AHMEDABAD] which in turn followed the order of Sibia Healthcare P.Ltd. [2015 (6) TMI 437 - ITAT AMRITSAR] we allow appeal of the assessee and delete the levy of late fee imposed under section 234E for the quarter-2 in the F.Y. 2013-14. - Decided in favour of assessee.
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2016 (4) TMI 1423
Dishonor of Cheque - legality while assessing the evidence placed on record in regard to the rebuttal of presumption available under Section 118(a) and 139 of the N.I. Act - HELD THAT:- Taking into consideration, the entire evidence of PW-1, it can be said that the accused is able to probablise his defence that the cheque marked as Ex. P2 was not issued for availing Rs. 4.6 lakhs and that the same was issued as security for the said sum of Rs. 1.9 lakhs availed by her. Viewed from any angle, both the Courts have not critically evaluated the evidence placed on record and they have committed serious illegality in appreciating the evidence placed on record - Both the Courts have attached too much of importance to the presumption available under Sections 118 and 139 of N.I. Act without looking to the categorical admission elicited from the mouth of PW-1. These important admissions could not have been so easily brushed aside by both the Courts.
Absolute interference is called for and the judgment of conviction and sentence passed by the trial Court and affirmed by the First Appellate Court are to be set aside and consequently, accused is acquitted for the offences alleged against her. The illegality so committed by both the Courts is writ large and hence revisional jurisdiction vested under Section 397 of Cr.P.C. is to be invoked.
Revision petition is allowed.
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2016 (4) TMI 1422
TDS u/s 195 - disallowance under sec. 40(a)(ia) - non-deduction of tax at source on payments of commission to non-resident sales agents - second round of adjudication - HELD THAT:- Division Bench of Bombay High Court in the case of CIT Vs. Gujarat Reclaim & Rubber Products Ltd. [2015 (12) TMI 1078 - BOMBAY HIGH COURT] it has been, inter alia, held that before effecting deduction at source one of the aspects to be examined is whether such income is taxable in terms of the Income Tax Act. This aspect has not been considered by the Tribunal while concluding that the appellant has committed a default in not deducting the tax at source. We find that the Commissioner of Income Tax (Appeals) has given a finding that the services of non-resident sales agents namely Mitsui & Co. Ltd. and Allied Ore Inc, Japan, are performed outside India and the same are not taxable in India, hence, TDS is not deductable from the payments made to them. This finding of fact by the Commissioner of Income Tax (Appeals) is not disputed by the Revenue before us.Therefore, this issue stands covered by the decision of the Hon’ble Bombay High Court in the case of Gujarat Reclaim & Rubber Products Ltd. [2015 (12) TMI 1078 - BOMBAY HIGH COURT] - Decided against revenue.
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2016 (4) TMI 1421
Seeking discharge of appellant - allegation of omission in discharge of official duty in not providing Government vehicle for shifting the patient from Primary Health Centre to District Hospital, Raigad - requirement of sanction to prosecute Under Section 197(1) Code of Criminal Procedure - HELD THAT:- It is clear that the omission complained of due to which offence is stated to have been committed, was intrinsically connected with discharge of official duty of the Appellant, as such the protection Under Section 197 Code of Criminal Procedure from prosecution without sanction of the competent authority, is available to the Appellant. Thus, he could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law.
In case sanction is granted only then the Appellant can be prosecuted and not otherwise.
Appeal allowed.
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2016 (4) TMI 1420
Denial of CENVAT Credit - input services - installation and commissioning related services on the input side for bringing into existence a pipeline - HELD THAT:- Issue Notice and Notice as to interim relief returnable on 27th April, 2016.
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2016 (4) TMI 1419
Addition u/s 40(a)(ia) - Whether provision of section 40(a)(ia) would apply on both “paid” and “payable”? - CIT-A restricting addition relying on the judgment of Merlyn Shipping Agency Pvt. Ltd. [2012 (3) TMI 402 - ITAT VISAKHAPATNAM] wherein, it is held disallowance under section 40(a)(ia) can be made on payable amount” - HELD THAT:- We find that the CIT(A) has given part relief following the ratio laid down by the Special Bench decision in the case of Merlyn Shipping Transport Private Limited (supra). The contrary view has been taken by the Hon’ble Calcutta High Court in the case of Crescent Exports [2013 (5) TMI 510 - CALCUTTA HIGH COURT] disapproving the decision of the Special Bench and held that, provision of section 40(a)(ia) would apply on both “paid” and “payable”. The decision of Allahabad High Court in the case of Vector Shipping Services Pvt. Ltd. [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] is not a ratio approving the decision of Special Bench and this has been elaborately dealt by the Tribunal in the case of M/s Pratibhuti Viniyog Ltd. [2014 (11) TMI 8 - ITAT MUMBAI].
Now, Hon’ble P&H High court also in the case of PMS Diesel [2015 (5) TMI 617 - PUNJAB & HARYANA HIGH COURT] have reinforced the aforesaid view taken by the Tribunal by concurring with the decision of Hon’ble Calcutta High Court and explaining the decision of the Hon’ble Allahabad High Court in the case of Vector Shipping Services Pvt. Ltd. [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] and specifically held that the decision of Special Bench in the case of M/s. Merilyn Shipping & Transports is not a correct decision. Accordingly, the order of the CIT(A) is reversed.
TDS u/s 194C - As payment made by the assessee towards freight was within the statutory limits of attracting TDS provision and in support, assessee has disclosed and filed the details of payments, party-wise and month-wise payments; secondly, the assessee has also filed the copy of vehicle registration certificate, PAN card of the parties to substantiate the contention raised before the AO, who has held that, no details were filed - the assessee has also filed Form 15-I and 15-J to show that, the income of the transporters were below taxable limits.
CIT(A) without any proper reason and analysis has dismissed the assessee’s contention. In the interest of justice, we are of the opinion that, the issue of disallowance under section 40(a)(ia) should be examined afresh on merits and after examining the details furnished by the assessee with regard to the claim that the individual payment did not exceed ₹ 50,000/- to a single party during the year and also the Form 15-I and 15-J submitted in support of various transporters to whom the assessee has paid freight charges. Accordingly, the matter is remanded back to the file of the AO who shall examine the issue on merits
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