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Showing 41 to 60 of 1439 Records
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2015 (7) TMI 1407
Benefit of input tax credit - credit allowed to dealer without verifying the nature of transaction - Levy of Entry tax - HELD THAT:- The Tribunal has examined the matter at length and has recorded findings of fact that at the time of making the transaction the registration of the assessee was intact. The second finding recorded is that all the transactions were found to be genuine one and had been made against valid documents which were also produced before the authority. All the transactions were made through banking papers and the accounts were found to be genuinue.
Levy of Entry Tax - HELD THAT:- Since the imposition of tax itself has been held to be bad, there is no question of attracting any entry tax in the same.
There are no reason to interfere with the order of the tribunal. No other question was argued - revision dismissed.
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2015 (7) TMI 1406
Default in payment of duty as per Rule 8(3A) of the Central Excise Rules, 2002 - bar on utilization of CENVAT Credit Account for payment of duty during the defaulted period - levy of penalty - HELD THAT:- As the appellant have already paid the amount in dispute along with interest, therefore, proceedings under Rule 8(3A) of Central Excise Rules, 2002 are not sustainable - But penalty under Rule 27 of Central Excise Rules, 2002 is imposable on the main appellant. Therefore, the penalties imposed on the appellants are set aside - only the penalty of Rs. 5000 on the main appellant i.e. M/s. Baba Vishwakarma Engineering Co. Pvt. Ltd. is confirmed.
Appeal allowed in part.
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2015 (7) TMI 1405
Reopening of assessment u/s 147 - Investigation Wing had found out that there were certain persons, who had, on exchange of cash, received accommodation entries in the form of cheques from various persons, who admitted before the investigation Wing that such entries were bogus - HELD THAT:- in the case of assessee, no scrutiny assessment u/s 143(3) had taken place, therefore, whether such credits shown in the balance sheet were in the nature of income or not, could not have been found out, merely on perusal of the return of income - reason to believe of the AO that income had escaped assessment was on cogent grounds in view of the specific details of transaction provided by the Investigation Wing.
Issue of notice u/s 148, which is the statutory procedure for enabling the Ld. AO to verify whether such information was correct or not, was rightly issued by the AO. However, merely because notice u/s 148 was issued does not mean that the information from the Investigation Wing was a gospel truth, and if on verification, the AO finds that no income can be held to have escaped in the hands of the assessee, no addition in respect of such information can be made to the appellant's income. Therefore, Ld. CIT(A) has rightly held that the issue of notice u/s 148 was good in law and the AO has followed the guidelines prescribed by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] by making note of satisfaction on cogent grounds before issuing the notice u/s 148.
Notice u/s 148 and subsequent notices, issued by the AO could never have been served upon the assessee - As it is evident that the notice u/s 148 and subsequent notices, issued by the AO could never have been served upon the assessee as the same was issued at a wrong address, due to the mistake attributable to the Assessing Officer, in making due diligence of issuing the notice at the correct address given in the return of income itself. The latest address of the assessee was also available with the AO as return of income for assessment year 2010-11 and 11-12 also show the latest address at H.No.500, Gali No. 3, Chander Lok, Mandoli Road, Shahdra.
Best judgment assessment - AO in the remand report has repeated the facts of the case and rather strengthened the arguments of the assessee that notice was issued at the wrong address at 55, Royal Palace, 1st Floor, Vikas Marg, Delhi, which was the address in earlier years much before the assessee had filed the return of income for the current year on 18.10.2004. Under the circumstances, as the notice u/s 148 which is foundation of the reassessment proceeding, was not served upon the assessee, the whole proceedings are held as void-abinitio. Under the circumstances, the action of the AO of making Best Judgment assessment u/s 144, in respect of which evidently no material was gathered by the AO, is not sustainable.
Decided against revenue.
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2015 (7) TMI 1404
Revision u/s 263 - disallowance u/s. 40(a)(ia) - HELD THAT:- Whether the assessment is made u/s. 143(3) or u/s. 144, where therefore it is shown that a particular aspect of assessment has escaped his attention or consideration, the matter can be required to be examined by him in accordance with the law after allowing the assessee a reasonable opportunity of being heard by the CIT as the revisionary authority in exercise of his revisionary power u/s. 263 of the Act. In the facts of the present case this aspect of the matter, i.e., the exigibility of the impugned sums to tax deduction at source and, consequently, disallowance u/s. 40(a)(ia) on the failure to do so, was not at all considered during the assessment proceedings.
With regard to the disallowance u/s. 40(a)(ia) being not permissible, even where applicable, i.e., where the assessment is framed on estimation basis, we have found the argument as not legally tenable. This is as the assessment of income even under the estimation regime is of the total income under the Act and not of the business profit alone, and which could only be upon considering the applicability or otherwise in the facts of the case of all the relevant provisions of law, to which section 40(a)(ia) is or cannot be any exception. The same in fact is a statutory disallowance, artificially inflating the assessee-payer's income for the time being, which is liable to be allowed as deduction upon complying with the condition prescribed for its non applicability, i.e., of the deposit of TDS to the credit of the payee, in the year in which it stands complied with, introducing thus a timing effect. Not so considering; rather, leads to an anomalous, unacceptable situation. Our reasons in support of our decision stand listed in the foregoing paragraphs of this order.
The premise, or the underlying concern, it needs to be appreciated, is to arrive at the best estimate of the total income after considering all the relevant provisions of law, be it qua an allowance or disallowance in-as-much as the assessment is to be only in accordance with the law. The assessee's argument thus is not valid and, accordingly, we find no infirmity in the direction of the ld. CIT in restoring the assessment for the consideration of the relevant issues to the file of the assessing authority. We decide accordingly.
Addition u/s 68 on unexplained cash credit - The confirmation, if at all, only establishes the identity of the creditor. The ld. CIT has in fact also stated that the confirmations do not bear the particulars of the transactions, i.e., the date and the mode of the payment, and even as much as the PAN of the creditor/s, so that the same cannot be regarded as complete. How, we wonder, could his inference of the A.O.'s acceptance of the cash credit as proven, or of the assessee having discharged the burden of proof u/s. 68, as erroneous and prejudicial to the interest of the Revenue, be contested under such circumstances. This is in view of a clear lack of inquiry and application of mind by the assessing authority while framing the assessment qua this aspect thereof. The assessee has relied on case law, as in the case of CIT v. Jaiswal Motors Finance[1983 (2) TMI 47 - ALLAHABAD HIGH COURT]; India Rice Mills [1995 (12) TMI 55 - ALLAHABAD HIGH COURT], holding that a credit to the account of the partners in a firm could only be added u/s. 68 in their hands. There is nothing to show that the credit is from the partners. The matter, in our view, is factual, with the decisions being rendered with reference to the facts of the case, as by a partner on his introduction as such in a firm, or by the partners on the commencement of the business by the firm, etc. On the legal aspect, how one wonders would s. 68 not apply in-as-much as the 'firm' and 'partner' are different persons under the Act, with the credit/s appearing in the books of the firm? Reference in this context be made to the decision in the case of CIT v. Kishorilal Santoshilal [1995 (2) TMI 14 - RAJASTHAN HIGH COURT], explaining the law in the matter, based on first legal principles - we, accordingly, uphold the impugned order on this ground.
Assessee appeal dismissed.
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2015 (7) TMI 1403
Rejection of books of accounts u/s 145 - reasonable rate of profit @12% on contract receipt - HELD THAT:- We find considerable cogency in the assessee’s counsel submission that on similar facts the judicial courts have allowed a lower rate upto maximum of 8% on gross receipts which is reasonable in the circumstances of the case. The rate applied should be based on valid basis such as past history of the case, nature of business, past years profits.
As further find that force in the assessee’s counsel version that the assessee Sh. Nand Kishore Pundir is a contractor engaged in supply of machines JCB, Construction of roads & buildings. So he is giving multivaried services. Whereas the case law relied upon by the AO titled as “PARBHAT KUMAR, SIRSA", Parbhat Kumar, Sirsa was civil contractor engaged in civil construction. So nature of work done is not same in both the cases. Therefore, to compare both cases & levy high estimated rate of 12% is not just.
End of justice would be served if profit rate @8% gross receipt is adopted. Accordingly we direct the AO to adopt profit rate @8% on Gross receipts and re-compute the income of the assessee accordingly. Appeal filed by the assessee stands allowed for statistical purposes.
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2015 (7) TMI 1402
TDS u/s 195 - Disallowance made u/s.40(a)(i) - liable for TDS as the services were rendered outside India - HELD THAT:- Section 195 (1) of the Act also prescribes that tax has to be deducted while making payment to non-resident which is chargeable under the provisions of the Act. Therefore, the condition precedent for deduction of tax is the income must be chargeable under the provisions of the Act. In the facts of the present case, the agreement entered into by the assessee with foreign agents revealed that they have been appointed to act as Commission agents outside India in their respective countries. AO has disallowed commission payment u/s 40(a)(i) since there was no TDS made on this payment.
As is evident from the assessment order, excepting this inference by the AO, there is nothing on record to suggest that the income is chargeable to tax in India or the payment has been received by the non-resident agents in India or by any other person on their behalf. There is also no finding by the AO that the non-resident agents have a permanent establishment in India or have any business connection in India, by virtue of which the payment of commission would have accrued or arose in India.
The facts available on record clearly suggest that the non-resident agents did not carry out any business operations in India and has acted as selling agents of the assessee outside India. Therefore, the commission earned by them for services rendered by them outside India cannot be considered as income chargeable to tax in India. AO has not established the fact on record that any one of the non-resident agents is carrying on business through a permanent establishments. Therefore, when the commission paid to the non-residents are not chargeable to tax under the provisions of the Act, no deduction of tax is required to be made u/s 195(1) of the Act.
In the present case, the AO has failed to bring any material on record on the basis of which it could be concluded that commission paid to foreign agents is chargeable to tax in India. Unless the income is chargeable to tax in India, then tax is not required to be deducted u/s 195(1). From the facts and materials available on record, no definite conclusion can be made that the commission paid to foreign agents is chargeable to tax in India.
In the present case, the foreign concern was acting as the selling agent for the assessee and no services rendered by it within the taxable territory, the amount payable as commission was not liable to tax and as the income is arising or accruing to a foreign concern in India, there is no disallowance u/s. 40(a)(i) of the Act on the ground that the tax is not deducted at source u/s. 195 of the Act or remittances made to a foreign concern. In view of this, we find no merit in the ground taken by the Revenue.- Decided against revenue.
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2015 (7) TMI 1401
Rectification u/s 154 - scope of debatable issue - disallowance under section 14A read with Rule 8D computed into the book profits under section 115JB - HELD THAT:- The issue is quite debatable which has yet to be settled by the High Courts/Supreme Court. There are contrary decisions of the Tribunal in favour of both the parties. Under such circumstances, in our view, it was beyond the powers of the AO exercisable under section 154 to make an addition on a debatable issue, the original assessment in this case had been completed under section 143(3) of the Act. Merely because, the other view is possible that itself cannot be a ground to rectify the order under section 154 of the Act as the same cannot be said to be a mistake apparent on record. Similarly, the addition made on account of provision for doubtful debts whether to be added while computing book profits under section 115JB has been a quite debatable issue. Under such circumstances, the invoking of provisions of section 154 by the AO on debatable issue was beyond his jurisdiction.
It is not a case of any mistake apparent on the record. The AO passed the assessment order u/s 143(3) of the Act on the basis of material available before him. It has been time and again held by the higher courts that if the alleged mistakes require investigation into facts or determination of law or discussion of debatable points are involved or two opinions are possible on the issue then such pointed mistakes cannot be said to be mistakes apparent on record which can be rectified under section 154 of the Income Tax Act. Hence, the order passed by the AO under section 154 is not sustainable - Decided in favour of assessee.
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2015 (7) TMI 1400
Assessment in the name of company amalgamated - Amalgamation of two companies - corporate death of an entity upon amalgamation - Assessment to be made on which entity? - HELD THAT:- In view of the decision of this Court in Commissioner of Income Tax-III v. Dimension Apparels Pvt. Ltd. [2014 (11) TMI 181 - DELHI HIGH COURT] no substantial question of law arises for determination by the Court in this appeal.
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2015 (7) TMI 1399
Deduction u/s 80IB - Claim denied as two units have exceeded the stipulated constructed area - definition of “Built up Area” in the newly inserted provisions of section 80IB(14)(a) - excess of area of maximum limit of 1500 sq. ft. to qualify for 80-IB(10) deduction and AO was of the view that the provisions of section 80IB are in respect of complete housing project and not individual unitwise, thereofre, 80IB deduction shall be allowed for complete housing project - Scope of newly inserted provision for definition of “Built up Area” in section 80IB(14)(a) - HELD THAT:- We would like to state that the assessee has been granted completion certificate as per the sanctioned plan and no deviations or compounding fee have been reported/levied. Further, we would also like to state that those conditions can be applied to the housing projects which were on the statute book on the date when the housing projects were approved by local authority. In other words, in case the housing projects were approved by the local authority prior to 31.3.2004 then the newly inserted definition of “Built up Area” in section 80(1B)(14a) shall not be applicable to such housing projects.
An assessee cannot be asked to comply with the conditions which were not a part of the statute when the housing project was approved and more so when such conditions are inextricably linked with the approval granted to the housing project by the local authority under its own rules and regulations. If the condition of sub-section (14)(a) of section 80IB is held applicable to the projects approved prior to 1.4.2005 then the assessee has to necessarily seek for a modified plan otherwise the assessee will not be eligible for exemption u/s 80IB(10) and when the assessee obtained valid approval and constructed the building in all respect prior to Ist April, 2005, then also if the provisions are applied retrospectively, the assessee would not be entitled to benefit of tax exemption.
We would like to mention that such beneficial provisions in the Act have been brought into to bring in investment and to encourage infra-structure development of middle income housing projects. If these amended provisions are made effective retrospectively then it will negate the object of the provision. If certain areas are not considered as part of built up area as per Municipal Act then the definition of built up area that is introduced in the Act at later stage shall not be substituted to the project approved prior to that date. It is a settled law that the Court has to harmonize the provision and interpret the same in a manner to achieve the object of legislature than to distress the said object. Therefore, in our considered view, the definition of ‘Built up area’ as inserted by subsection (14)(a) to section 80IB of the Act by the Finance Act (No. 2) 2004, cannot be applied retrospectively and if this definition is not applied, the measurement of constructed unit comes within the limit as provided in the Act. - Decided in favour of assessee.
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2015 (7) TMI 1398
Reopening of assessment u/s 147 - non independent application of mind by AO - HELD THAT:- Objection was first raised, both the Assessing Officer and the Commissioner of Income Tax (Central) took a stand that there is no error in the assessment order and no reassessment proceedings were warranted. Thereafter an officer in the office of the Commissioner of Income Tax (Central) informed the Assessing Officer of the desire of the Commissioner that a notice for reopening be issued. Thereafter when the case was transferred to Mumbai, the Forwarding Memo also indicated that the case be reopened. Prima facie, it appears that the reopening notice was issued without independent application of mind and/or directions of his superior. In view of the above, the reopening notice dated 31 March 2014 is stayed.
After the order disposing of the objections was passed on 27 January 2015 and served upon the petitioner on 10 February 2015, the Assessing Officer proceeded to pass the assessment order under Section 143(3) read with Section 147 of the Act on 11 February 2015. This action of the Assessing Officer is in defiance of and contrary to the directions of this Court in Asian Paints [2007 (1) TMI 159 - BOMBAY HIGH COURT] and Aroni Coomercials Ltd. [2014 (2) TMI 659 - BOMBAY HIGH COURT] wherein it has been held that after the orders disposing of the petitions is passed the Assessing Officer will not commence any proceedings for a period of four weeks from the date of disposing of the objections. In spite of the law being clearly laid down by this Court, the Assessing Officer has proceeded to pass an order immediately after having disposed of the objections.
The issue of action to be taken against the Assessing Officer Mr. P.D. Chougule in passing orders in defiance of the orders of this Court will be considered at the time of final hearing in the light of the explanation being offered by him.
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2015 (7) TMI 1396
Validity of detention order - initiation of proceedings against the detenu is on the basis that he is a known rowdy - effect on public order, Public health or public safety - tempo of the society was disturbed or not - applicability of ordinary law of land - non application of mind of the detaining authority - higher ups and authorities in the official hierarchy - vital materials have been suppressed by the sponsoring authority before the detaining authority - constitutional requirement flowing from Article 22(5) of the Constitution of India.
Irrespective of the fact whether the acts committed by the detenu will bring him within the scope of the term "rowdy" or "known rowdy", the detaining authority was bound to subjectively satisfy itself as to whether the acts alleged of the detenu do threaten the public order to pass a valid order of detention - As the detaining authority has failed to satisfy itself that the acts of the detenu has affected, public order, Public health or public safety, the issuance of the order under S. 3 of the Act stands vitiated - The various crimes alleged to have been committed by the petitioner are directed against individuals and those crimes, which include a solitary case of murder, cannot be held sufficient to hold that the even tempo of the society was disturbed and consequently the public order - The ordinary law of land was sufficient to deal with the cases in which the detenu was involved and therefore the order of detention curtailing the freedom of the detenu should not have been issued - HELD THAT:- There were ample materials before the detaining authority to conclude, on the basis of materials produced, that the acts committed by the detenu are prejudicial to public order and that that was every likelihood and potentiality of the detenu in committing offences, disregarding the actions taken by the state to curtail him. The satisfaction arrived at by the detaining authority that the reach of the acts of the detenu, its degree, extent and magnitude has caused disturbance to the even tempo of life of the community so as to amount to disturbance of the public order cannot be doubted or faulted. We hold that the challenge raised by the detenu that his acts merely amount to violation of law and order cannot be sustained - the contention that the crimes committed by the detenu has not disturbed the even tempo of the society and thus to disturb the public order has to fail - decided against the detenu.
Non application of mind of the detaining authority is writ large as the detention order was passed when the detenu was in Jail with no prospects of being released in the near future - HELD THAT:- The detaining authority has taken note of the fact that the detenu is an extremely wealthy person with no regard for law or the law enforcement agencies and he is in the habit of committing crimes and could have approached any forum for grant of bail to effectuate his purpose. The detenu is not a person who got involved in a solitary crime. Having regard to the antecedents, previous history, predilections of the detenu to indulge in crimes affecting public order, the nature and conditions of bail order passed and the possibilities of imminent release on bail, it cannot be said that the subjective satisfaction of the detaining authority was not exercised in the proper manner - the challenge raised also has to fail.
Ext. P1 detention order is vitiated as materials on record would reveal that the same was passed on the dictates of the higher ups and authorities in the official hierarchy and thus the detaining authority has abdicated her responsibility in passing the order - HELD THAT:- Reliance placed in Supreme Court in DR. B. SINGH VERSUS UNION OF INDIA & ORS. [2004 (3) TMI 740 - SUPREME COURT] wherein it was held that, information of fact found in a newspaper, Journal or Magazine or any other form of communication cannot be regarded as gospel truth. It was held that newspaper reports per se do not constitute legally acceptable evidence. After going through exhibit P1 detention order, we do not think that the detaining authority has abdicated its responsibility. The contention of the petitioner has to fail on this ground as well.
Necessary and vital materials have been suppressed by the sponsoring authority before the detaining authority, which materials, if supplied would have influenced the mind of the authority to refrain from issuing Exhibit P1 - HELD THAT:- The allegations would reveal that the detenu has assaulted the security staff in the presence of the other security men and there is no case that any person including the deceased had even an occasion to resist the acts of the detenu. It is a one sided assault by the detenu on the security person on his failure to open the gate. The assault on the security staff commenced from the public road and went on inside the apartment complex. It does not appear to us that the said document can be said to be so vital so as to have any relevance in the facts and circumstances of the instant case. Moreover, it is not the law that every document or material in the possession of the sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction will get vitiated - Only when the said document is likely to affect the formation of opinion and the satisfaction of the detaining authority can it be said that it is a vital document. In the facts of the instant case, it does not appear to us that the wound certificate would have influenced the formation of opinion. The contention raised on this count also has to necessarily fail.
The failure of the detaining authority to inform the detenu that he has a right of representation before the detaining authority, is a constitutional requirement flowing from Article 22(5) of the Constitution of India, and failure to comply with the same will vitiate the order - HELD THAT:- The responsibility or the burden cast upon the detaining authority, under Article 22(5) of the Constitution and S. 7(2) of the KAAPA, while passing orders for detaining "known goondas" or "known rowdies" under S. 3 of the Act, will stand discharged by affording an earliest opportunity to make a representation and communication of the availability of such opportunity/right to represent to the Government and before the Advisory Board against his detention. The detaining authority is not bound, as per the scheme of Act 34 of 2007, to inform the detenu of his right to represent before the detaining authority himself, as there exist no such right - in the instant case, the burden on the detaining authority must be held to be adequately discharged when the detenu is informed of his right to make a representation at the earliest available opportunity. That has been successfully discharged in this case. The contention raised by the petitioner also has to fail.
Petition dismissed.
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2015 (7) TMI 1395
Validity of summary suit - deficiencies in supply of material for which the plaintiffs issued credit notes - suppression of any material fact or not - HELD THAT:- The defendants have admitted in their reconciliation statement attached to their email dated 7.11.2012 that a sum of ₹ 9,75,88,621/- is payable to the plaintiffs. In the letter of 1.2.2013 from the defendants' Advocate to the plaintiffs' Advocate, the defendants in any event admit that sum of ₹ 3,83,12,035/is payable. Therefore, the plaintiffs should in any event be entitled to summary decree for ₹ 3,83,12,035/-.
As regards the balance amount of ₹ 2,92,76,586/and ₹ 3,00,00,000/, there is no evidence that the goods were substandard or there were even discussion with the plaintiffs. There is also nothing on record to show that the defendants brought to the notice of the plaintiffs goods worth ₹ 3 crore was lying unutilized and the plaintiffs had agreed to take it back. The defendants don't even mention where these goods are and how they valued it out ₹ 3 crores (approximately). In the circumstances, the defence raised by the defendants in my view, are bogus, illusionary and moonshine.
Interest - HELD THAT:- The invoices raised does provide interest @ 30% p.a. and therefore, the defendants are also entitled to the contractual rate of interest upto the date of filing of the suit.
Application disposed off.
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2015 (7) TMI 1394
Reopening of assessment u/s 147 - protective addition - HELD THAT:- Revenue has not initiated any substantive assessment or no addition has been made on substantive basis in any other hand, there is no question of any protective assessment in the present case from the reasons recorded by the AO as reproduced herein above. We are of the view that the AO has initiated re-assessment proceedings u/s 147/148 of the Act on the basis of the statement of one of the directors of the assessee company that the transactions in the hands of the other parties are not accounted for and this may be the income of the assessee. The revenue could not bring on record anything against the other parties or who are the other parties against whom substantive addition is to be made. There is no substantive addition made in any of the hand till date as conceded by the ld. Sr.DR before us now. In view of the above we are very clear that the re-assessment proceedings initiated u/s 147/148 of the Act is invalid and hence quashed. - Decided in favour of assessee.
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2015 (7) TMI 1393
Money Laundering - recording the statement for examining the documents mentioned in schedule attached to the summons issued to the petitioner - section 50(2) of Prevention of Money Laundering Act, 2002 - HELD THAT:- By consent, it is decided that the officers of Enforcement Directorate will visit the residential place of petitioner on 30th July, 2015 at 11.00 a.m. and record her statement, if any and may examine the documents as stated in the schedule. This shall not be construed as a direction of the court. This is arrangement by consent for change in the date, time and venue of the summons.
Petition stands disposed off.
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2015 (7) TMI 1392
Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - material defence of the first respondent was that the cheque does not bear her signature - Sections 118 and 139 of NI Act - HELD THAT:- Admittedly, the appellant had retired from the school when various advances of the amounts from June 2006 is said to be made to the first respondent on a specious ground that the first respondent was known to the appellant, as she was the husband of the headmaster of the school, where the appellant was earlier serving. It has come in the evidence of PW1 that there was no business transaction as such between the appellant and the first respondent and for the matter of that, between the appellant and Avdhuth Kakodkar, the husband of the first respondent. It is not even the case that Avdhuth Kakodkar had at any time approached the appellant with a request for financial accommodation - It is really difficult to accept that the appellant would advance these amounts without there being anything in writing and without there being any agreement to pay interest and particularly, when on his own saying, he continued to advance the amount, although the amounts paid earlier, were not repaid.
One of the material circumstances to be established in a prosecution of the present nature is that the cheque should have been shown to be issued in discharge of a legally enforceable debt or liability. The existence of such a promissory note by the first respondent was a material circumstance and would have found place in the notice as well as the complaint. However, that is lacking.
It is trite that presumption under Sections 118 and 139 of the Act can arise only where the signature is admitted. In the present case, it appears from the cross-examination of PW1 that the first respondent had disputed her signature on the cheque. It cannot be gainsaid that the first respondent had not made any attempt to get the documents examined. The fact remains that the appellant had himself made an application for sending the document to the forensic laboratory - the observations herein pertain to the complaint under Section 138 of the Act, and the issues which arise thereunder. If the appellant has taken recourse to any other legal remedy for recovery of the amount, the same shall be decided on its own merits, without being influenced by any of the observations herein.
Appeal dismissed.
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2015 (7) TMI 1391
Deduction u/s 80IA towards O&M - profits derived from Kakinada port, Jamnagar port and Dahei port thought the assessee did not enter into an agreement for operation and maintenance of infrastructure facility with the Central Government/State Government/Local Authority/Statutory Authority - HELD THAT:- As decided in own case [2012 (6) TMI 912 - ITAT HYDERABAD] issue relating to claim of deduction in respect of Jamnagar, Kakinada and Dahej ports are decided in favour of assessee, hence, do not require any more deliberation. The order of ld. CIT(A) in allowing deduction to assessee u/s 80IA in respect of Jamnagar, Kakinada and Dahej ports being in consonance with the view expressed by ITAT in assessee’s own case, we do not find any infirmity in the order.
As far as Nagapattinam port is concerned, on perusal of the certificate issued by the Chennai Petroleum Corporation Ltd., a copy of which is at page 68 of the paper book, it is evident that assessee has entered into contract with CPCL for O&M of the port. Therefore, the allegation of the AO that assessee is not engaged in operation and maintenance activity is without any basis. It is further observed that AO while denying assessee’s claim of deduction has observed that nature of work carried out by assessee cannot be considered as O&M.
The activities carried on by assessee being in the nature of O&M of infrastructure facility, it is eligible for deduction u/s 80IA(4). Though the aforesaid observation of ITAT is in respect of Jamnagar, Kakinada and Dahej ports, but, since the facts in relation to other ports are also more or less similar, these observations of ITAT will also apply to the other ports in respect of which assessee has claimed of deduction u/s 80iA. In fact, in the assessment order, AO himself has stated that there is no change in the activity of assessee from AY 2000-01 onwards. Therefore, there being no material change either in the facts relating to assessee’s claim of deduction u/s 80IA or the nature of activity of the assessee in the impugned assessment year, the decisions of the coordinate benches on the issue in assessee’s own case would squarely apply.
As far as AY 2010-11 is concerned, the issue is more or less identical, except, the fact that assessee has claimed deduction u/s 80IA for the first time in respect of Karaikal port being operated by Karaikal Port company Pvt. Ltd. In this regard, assessee has submitted a certificate from the port authority certifying that they have entered into an agreement with assessee for O&M of the port. That being the case, the decision rendered in respect of AY 2009-10 equally applies to the facts of the present case. - Revenue appeal dismissed.
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2015 (7) TMI 1390
Priority claimed by the DICGC over the depositors, creditors (secured and unsecured creditors), workmen and government dues, with respect to the amount paid by them to the concerned depositors paid under Regulations 1961 - Regulation 22 of the Deposit Insurance and Credit Guarantee Corporation General Regulations, 1961 - HELD THAT:- The concerned depositor/s in the present case, petitioner of Special Civil Application No.7617 of 2009 (Letters Patent Appeal No.2458 of 2009), Shri Ambaji Mata Devasthan Trust, in whose favour there is a decree passed by the competent Court is/are concerned, they can be said to be the unsecured creditors only and, even if they are permitted to proceed further with the execution proceedings to execute their respective decree/awards in their favour, in that case also, the concerned liquidator (who can be said to be a debtor and against whom the decree/award is passed) can be permitted to make the payment and satisfaction of the decree/award only after the official liquidator makes necessary provisions for the expenses in relation to the liquidation proceedings and for declaration of the dividend and thereafter makes payment to the DICGC as observed herein above and only thereafter, if any excess amount is there with the official liquidator of the concerned Bank in liquidation, the same can be directed to be paid to the concerned decree holder/in whose favour the award is passed. However, that too subject to the priority as provided under the provisions of the Gujarat Cooperative Societies Act.
The sum and substance of the above shall be that the DICGC shall be entitled to the first preference over the payment/amount available with the concerned official liquidator of the concerned bank in liquidation. However, after making necessary provisions by the official liquidator, for the expenses in relation to the liquidation proceedings and for declaration of dividend.
The impugned common judgment and order passed by the learned Single Judge passed in Special Civil Application No.4260 of 2009, Special Civil Application No.7617 of 2009 and Special Civil Application No.6978 of 2009 are hereby quashed and set aside - the Letters Patent Appeals are allowed to the aforesaid extent by directing the concerned official liquidator of the concerned Bank in liquidation to make the payment first to DICGC i.e. the amount which is paid by DICGC to the concerned depositor/s to the extent of ₹ 1 Lac each, however after making necessary provisions for the expenses in relation to the liquidation proceedings and for declaration of dividend.
Appeal disposed off.
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2015 (7) TMI 1389
Seeking settlement of statutory claims of the depositors - duty of the Corporation to disburse the amount guaranteed among the depositors or not - Winding up proceedings - HELD THAT:- The object with which the Act has been enacted has been stated hereinabove in a nutshell. The object was to insure the depositors so that they may not have to stand in a queue before the Official Liquidator for every paisa deposited by them with the concerned bank. As on today, as per the provisions of Section 16(1) of the Act, a sum of ₹ 1 lakh is being insured or guaranteed in respect of each depositor. So a depositor is safe and he has not to wash his hands off his deposit if the amount deposited by him is less than ₹ 1 lakh. The Official Liquidator, as per the provisions of the Act, has to give details about the depositors and the amount deposited by them in a prescribed form within three months from the date on which the liquidation order is passed or from the day on which he takes charge, whichever is later and within two months from the date on which the details are submitted to the Corporation, the Corporation has to make payment to the above extent either to the depositors directly or to them through the Official Liquidator.
As per the above-referred Scheme, each depositor, including each original petitioner, must have received ₹ 1 lakh from the Official Liquidator. Initially, upon the bank being ordered to be wound-up, the original petitioners and other depositors had a right to recover ₹ 1 lakh or the amount deposited, whichever was less, from the Official Liquidator and the said amount must had been paid to them when the petitions were filed.
Regulation 22 also provides that the Official Liquidator, after making necessary provision for the expenses in relation to the liquidation proceedings and for declaration of dividend, as prescribed in the Regulations, has to make payment to the Corporation - the High Court should not have given the direction which, if complied with, would run contrary to the statutory provisions incorporated in the Act.
Even if one looks at the entire issue from different point of view, one would believe that all the depositors have by and large equal right. If the amount deposited is less than ₹ 1 lakh, each depositor gets the amount in full, but if the deposit is exceeding ₹ 1 lakh, then only the amount which is in excess of ₹ 1 lakh may not be given to the depositor, unless the bank in liquidation is having sufficient funds which can be given to all on pro-rata basis after providing for expenditure in the liquidation proceedings and after repaying the amount to the Corporation as per the provisions of the Act. The Act in a way guarantees repayment of ₹ 1 lakh to each depositor. The High Court or any other authority has no power to direct payment in excess of ₹ 1 lakh by ignoring statutory provisions of the Act and the Regulations made thereunder.
The High Court had exceeded its authority while giving a direction to the Official Liquidator, which is not in consonance with the statutory provisions - appeal allowed.
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2015 (7) TMI 1388
Application for cancellation of bail - attempt to murder - change in the circumstance or not - HELD THAT:- As per prosecution both prosecutrix and respondent No.2 were Face Book friends. On 22/05/2013, prosecutrix had been to Aurangabad in connection with the marriage of her relative. It is the further case of the prosecution that at Aurangabad, prosecutrix met respondent No. 2. Sum and substance of the F.I.R. is that after having a coffee, while they were going by car, respondent No. 2 started touching private parts of the prosecutrix and also gave his private part in her hand. Though the prosecutrix resisted such obnoxious act of respondent No. 2, on the point of knife he extended threat to kill her.
The filing of the charge sheet subsequent to the rejection of the first bail application would operate as change in the circumstance, by which the accused can press his prayer for liberty on the evaluation of the material placed in the charge sheet by the prosecution.
Though it is the prerogative of the Investigating Officer to file such documents along with charge sheet, however, at the same time, it is expected from the prosecution and from the Investigating Officer to place all material on record, which came in his possession during investigation. The investigation should be impartial. It should not have tendency to take the side of either party. Learned trial Court has considered all these text messages, text chats in between the prosecutrix and respondent No. 2. Merely because those were not forming part and parcel of the charge sheet, Court can not be prevented from looking to such material which was available with the Investigating Officer and for the reasons best known to the investigating agency, it does not form the part and parcel of the charge sheet. Grant or refusal of bail deals with the personal liberty - while deciding the liberty of a person, who is languishing in jail, it is appropriate on the part of the Court to consider every material brought before the Court, if its authenticity is not doubted.
Further, it is not the case of the prosecution or the applicant that after releasing respondent No. 2 on bail, he has misused the liberty.
Application dismissed.
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2015 (7) TMI 1387
Seeking direction to respondent No.2 to produce before the Court and handover to the petitioner all the records and proceedings of the complaints - mala fide alleged by the petitioner against respondent No.2 - HELD THAT:- ECIR is an internal document of Enforcement Directorate and unlike FIR, it is not a public document. Hence the copy of the same cannot be furnished to the petitioner as of right. The investigation is at the preliminary stage and granting the reliefs as prayed for, would hamper the investigation. We are, therefore, not inclined to issue directions as sought or to furnish the details of the FIR.
It is also pertinent to note that the schedule to the summons requires the petitioner to give 1) details of recent foreign visits; 2) copies of passport since 2000; 3) bank account details- domestic and overseas and 4)Pan number. The summons/schedule, therefore, gives a fair idea of the nature of interrogation as well as the documents required by the agency for the purpose of investigation.
Mala fide alleged by the petitioner against respondent No. 2 - HELD THAT:- There are no substance inasmuch as, the petitioner's husband was arrested in pursuance of the warrant issued by the Court and the nature of the proceedings in which he was arrested were different from the proceedings in the present case.
Application disposed off.
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