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Showing 41 to 60 of 1235 Records
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2012 (8) TMI 1202
Issues involved: Appeal by Revenue against CIT(A)'s order deleting interest payable on loans which had not crystallized nor ascertained.
Summary:
The appeal involved the Revenue contesting the deletion of interest payable on loans by CIT(A) due to non-crystallization and non-ascertainment. The assessee debited a substantial sum as interest on loans in the Profit & Loss Account, claiming repayment of a portion. The Assessing Officer disallowed the balance amount u/s 43B(d) of the Act. The CIT(A) deleted the addition based on a previous Tribunal order in the assessee's case for AY 2003-04. The Revenue argued against this deletion, while the assessee relied on the previous order to support the CIT(A)'s decision.
Upon review, the Tribunal found that a similar issue had been addressed in the assessee's case for AY 2003-04, where the Tribunal allowed the deduction of interest. The Tribunal analyzed the loan agreement terms and relevant sections of the Act, concluding that the interest had accrued and the liability had crystallized, thus supporting the assessee's claim. The Tribunal noted that neither the Government of Tamil Nadu nor Infrastructure Leasing & Financial Services Ltd. fell within the definition of Public Financial Institution, rendering the application of Explanation 3(c) of Section 43B(d) irrelevant. As the Revenue failed to provide any distinguishing features or evidence to challenge the previous Tribunal order, the Tribunal upheld the CIT(A)'s decision and dismissed the Revenue's appeal.
In conclusion, the Tribunal confirmed the CIT(A)'s order, emphasizing the accrual of interest and the absence of Public Financial Institutions in the loan agreement, leading to the dismissal of the Revenue's appeal.
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2012 (8) TMI 1201
Issues Involved:
1. Enforcement of the petitioner's fundamental right to a speedy trial.
2. Quashing of Sessions Trial No. SC1/06.
Summary:
1. Enforcement of the Petitioner's Fundamental Right to Speedy Trial:
The petitioners, accused in the assassination of the then Union Railway Minister, filed Criminal Writ Petitions u/s Article 32 of the Constitution of India, seeking enforcement of their fundamental right to a "speedy trial" and quashing of the ongoing trial, which has been pending for over 37 years. The petitioners argued that the prolonged delay violated their right to a speedy trial guaranteed under Article 21 of the Constitution. They contended that the delay caused undue prejudice to them and their families, and that the systemic failure to complete the trial within a reasonable time warranted quashing the proceedings.
The Court reiterated that the right to a speedy trial is implicit in Article 21 and encompasses all stages of criminal proceedings. However, it emphasized that delays attributable to the accused or systemic issues beyond the prosecution's control do not necessarily violate this right. The Court noted the guidelines from previous judgments, particularly Abdul Rehman Antulay v. R.S. Nayak, which outlined factors to consider in determining whether a delay violated the right to a speedy trial. These factors include the reasons for the delay, the complexity of the case, and the conduct of both the prosecution and the accused.
2. Quashing of Sessions Trial No. SC1/06:
The petitioners sought quashing of the trial due to the inordinate delay. The Court examined the reasons for the delay and found that the prosecution was not responsible for the majority of the delay, which was largely attributable to the accused's actions and systemic issues. The Court emphasized that the mere passage of time is not sufficient to establish a violation of the right to a speedy trial. It held that the delay must be weighed against other factors, including the reasons for the delay and the conduct of the parties involved.
The Court concluded that the delay in this case, though lengthy, did not warrant quashing the trial. It directed the trial court to expedite the proceedings and conclude the trial on a day-to-day basis without granting unnecessary adjournments. The Court dismissed the writ petitions, affirming that the right to a speedy trial must be balanced with the need to ensure justice is served.
Separate Judgment:
Justice C.K. Prasad concurred with the judgment but added his observations, emphasizing the importance of following the precedents set by the Constitution Bench in Abdul Rehman Antulay and P. Ramachandra Rao. He reiterated that the trial cannot be terminated merely on the ground of delay without considering the reasons for the delay.
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2012 (8) TMI 1200
Issues Involved:1. Legality and propriety of the conviction and sentence u/s 138 of the Negotiable Instruments Act. 2. Competence of the Court to award compensation beyond the extent of the fine imposed. 3. Legality of imposing a sentence for default in payment of compensation. Summary:Issue 1: Legality and propriety of the conviction and sentence u/s 138 of the Negotiable Instruments Act.The accused challenged the judgment dated 21.5.2012 by the Additional Sessions Judge, Dhamtari, which modified the conviction and sentence by the Judicial Magistrate First Class, Dhamtari. The initial sentence was three months S.I. and a fine of Rs. 5000/-, which was modified to imprisonment till the rising of the Court, maintaining the fine and adding compensation of Rs. 5 lacs. The accused argued that the cheque was issued as security, not for a legally recoverable debt. The Court found the evidence sufficient to prove the cheque was for a legally recoverable debt and upheld the conviction u/s 138 of the Act. Issue 2: Competence of the Court to award compensation beyond the extent of the fine imposed.The accused contended that the Court was not competent to award compensation beyond the fine imposed. The Court clarified that compensation can be awarded under Section 357(3) of the Code independently of the fine. The appellate Court's award of Rs. 5 lacs as compensation was affirmed, but the fine of Rs. 5000/- was quashed as it was contrary to the provisions of Section 357(1) and (3) of the Code. Issue 3: Legality of imposing a sentence for default in payment of compensation.The Court addressed the legality of imposing a sentence for default in payment of compensation. It was held that while Section 357(3) of the Code does not explicitly provide for a default clause, the Supreme Court has established that Courts can impose a sentence for default in payment of compensation. The appellate Court's direction for imprisonment in default of payment of compensation was upheld. Conclusion:The Court maintained the conviction u/s 138 of the Act and the sentence of imprisonment till the rising of the Court. The fine of Rs. 5000/- was quashed, but the compensation of Rs. 5 lacs and the default sentence of six months S.I. were affirmed. The complainant's request for double the cheque amount as compensation was dismissed.
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2012 (8) TMI 1199
Issues Involved:
1. Validity of reassessment proceedings u/s 148.
2. Addition of Rs. 64 lakhs on account of unexplained investment in loans.
3. Addition of Rs. 396,725 on account of interest on loans of Rs. 64 lakhs, alleged to be earned but not disclosed.
Summary:
1. Validity of Reassessment Proceedings u/s 148:
The assessee, a Joint Managing Director of M/s Upper India Steel Manufacturing & Engineering Company Ltd., Ludhiana, was subject to a survey on 22.2.2006 where an old paper with some writing was found in his personal possession. The paper was suspected to pertain to undisclosed investment and interest received. The CIT(A) initially deleted the addition in the company's hands, leading to a notice u/s 148 being issued against the assessee. The CIT(A) upheld the reassessment, stating the loose paper constituted valid information for reopening the assessment within four years. The Tribunal agreed, noting that prima facie material, not conclusive evidence, is required for reopening an assessment.
2. Addition of Rs. 64 Lakhs on Account of Unexplained Investment in Loans:
During the survey, a piece of paper was found which the Assessing Officer interpreted as evidence of loans advanced by the assessee. The assessee claimed ignorance about the document's contents, suggesting it was a "dumb document." The Assessing Officer, invoking section 292C, presumed the document detailed loans given to various parties. The CIT(A) confirmed this addition. However, the Tribunal found the document ambiguous and not conclusively indicative of loans. The Tribunal emphasized that without further inquiry or corroborative evidence, the figures could not be assumed to represent loans, leading to the deletion of the addition.
3. Addition of Rs. 396,725 on Account of Interest on Loans of Rs. 64 Lakhs:
The Assessing Officer presumed the assessee charged 12% interest on the alleged loans, based on the document found during the survey. The CIT(A) upheld this addition. The Tribunal, however, found the document insufficient to substantiate the claim of interest income. The Tribunal noted that the document's contents did not clearly indicate interest calculations or loan details. Consequently, the addition was deleted due to lack of concrete evidence.
Conclusion:
The Tribunal set aside the order of the CIT(A) and deleted the additions of Rs. 64 lakhs and Rs. 396,725, concluding that the document found during the survey did not provide sufficient evidence to support the additions. The appeal filed by the assessee was partly allowed.
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2012 (8) TMI 1198
Issues involved: The judgment involves the taxation of income from the sale of Transferable Development Rights (TDR) under the head "capital gains" or "profit and gains of business or profession" for the Assessment Year 2006-07.
Summary:
Issue 1: Taxability of TDR sale proceeds under "capital gains"
1. The assessee, engaged in construction activity, earned a sum from the sale of TDR after developing a road as part of a project.
2. The Assessing Officer considered the TDR sale proceeds as taxable under "capital gains," rejecting the assessee's claim that it should be adjusted against the expenditure incurred on road development.
3. The Assessing Officer's decision was based on the view that the TDR sale proceeds are assessable under "capital gains."
Issue 2: Treatment of TDR sale proceeds in project completion method
1. The assessee contended before the CIT(A) that it followed the completion of the project method, where all expenditure was debited to work-in-progress, including the income from the sale of TDR.
2. The CIT(A) accepted the assessee's plea, noting the direct nexus between the TDR and the project development, and directed the Assessing Officer to allow the reduction of TDR sale proceeds from work-in-progress.
3. The CIT(A) found that the TDR was incidental to the project and its sale proceeds should be reduced from the total cost of the project.
Separate Judgment:
- The Appellate Tribunal upheld the CIT(A)'s decision, confirming that the TDR sale proceeds had a direct nexus with the development work and were incidental to the entire project undertaken. The assessee was justified in reducing the sale proceeds from work-in-progress, leading to the dismissal of the revenue's appeal.
In conclusion, the judgment ruled in favor of the assessee, allowing the reduction of TDR sale proceeds from work-in-progress and dismissing the revenue's appeal. The cross objection and application filed by the assessee were also dismissed as infructuous.
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2012 (8) TMI 1197
Issues Involved:
1. Addition under the head Long Term Capital Gain u/s 50C.
2. Addition on account of deemed dividend u/s 2(22)(e).
3. Addition of Rs. 2,00,000 as speed money and other expenses.
4. Deletion of addition of Rs. 33,60,000 based on statement recorded during survey u/s 133A.
Summary:
Issue 1: Addition under the head Long Term Capital Gain u/s 50C
The assessee contested the addition made by the AO under the head Long Term Capital Gain, where the AO adopted the value determined by the Stamp Valuation Officer (Rs. 27,82,118) instead of the sale consideration shown by the assessee (Rs. 25,70,000). The Tribunal upheld the AO's action, stating that the assessee did not dispute the value determined by the Stamp Valuation Authority during the assessment proceedings. Thus, the Tribunal confirmed the addition made by the AO and upheld the order of the CIT(A).
Issue 2: Addition on account of deemed dividend u/s 2(22)(e)
The AO added Rs. 5 lakhs as deemed dividend, considering the loan taken by the assessee from M/s. Global (India) Hospitality Services Pvt Ltd. The Tribunal found that the amount was part of regular business transactions and not a loan or advance. Therefore, the provisions of section 2(22)(e) were not applicable. The Tribunal deleted the addition of Rs. 5 lakhs made by the authorities below.
Issue 3: Addition of Rs. 2,00,000 as speed money and other expenses
The AO added Rs. 3 lakhs to the total income based on the statement recorded during the survey, where the assessee had offered Rs. 3 lakhs as unexplained expenses. The CIT(A) confirmed the addition of Rs. 2 lakhs as speed money. The Tribunal, in the absence of any details provided by the assessee, upheld the order of the CIT(A) and confirmed the addition of Rs. 2 lakhs.
Issue 4: Deletion of addition of Rs. 33,60,000 based on statement recorded during survey u/s 133A
The AO made an addition of Rs. 35 lakhs based on the statement recorded during the survey, which the CIT(A) reduced to Rs. 1,40,000, applying a net profit rate of 4% on unaccounted sales. The Tribunal agreed with the CIT(A) that the entire unaccounted sales could not be treated as undisclosed income and upheld the application of the net profit rate. The Tribunal confirmed the deletion of Rs. 33,60,000 for both assessment years 2006-07 and 2007-08.
Conclusion:
The appeal filed by the assessee for assessment year 2006-07 was allowed in part, while the appeals filed by the department for assessment years 2006-07 and 2007-08 were dismissed.
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2012 (8) TMI 1196
Issues involved: Disposition of money in foreign accounts, disagreement on nature of funds, jurisdiction of Special Judge, procedure for bringing money back to India.
The High Court of Delhi, in a case involving the disposition of funds held in foreign accounts, addressed the disagreement over whether the money in question was illicitly obtained or constituted legitimate income. The Court directed that the funds, sought by both the petitioner and the Income Tax Department, could be repatriated to India following due procedure. The Additional Solicitor General proposed that upon arrival, the money should be placed in a fixed deposit with a nationalized bank in the name of the Court. The Income Tax Department sought the repatriation of funds held in the petitioner's accounts in the UK, as the petitioner had declared these funds as her income and a substantial tax amount was due. All parties agreed that the funds should first be brought to India, with further directions to be issued by the Special Judge regarding their distribution. The petitioner's senior counsel consented to these arrangements, allowing the petitioner to assert her claims in accordance with the law, which would be considered by the Special Judge at the appropriate juncture.
The Court, with the consensus of all parties involved, disposed of the revision petition by overturning the impugned order of the Special Judge. The Special Judge was tasked with issuing orders for the repatriation of funds from specific accounts held by the petitioner and her company in the UK to the State Bank of India in Delhi, in the name of the Court. Upon receipt of the funds, the Special Judge was granted the discretion to determine their allocation, considering the competing claims of the petitioner, the CBI, and the Income Tax Department. The Court emphasized the need for expeditious completion of the entire process, ensuring a swift resolution to the matter.
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2012 (8) TMI 1195
Issues involved: Interpretation of exemption under Section 54F of the Income Tax Act for investment in residential house.
Summary:
1. The main issue raised by the assessee is the sustainability of the refusal of claim for exemption under Section 54F of the Income Tax Act. The term 'building' was discussed in reference to different statutes and circumstances. The Court emphasized that the exemption is available only for the construction of a new house, not for renovation or modification. It was noted that the assessee had not constructed a separate apartment or house, which is a requirement for the exemption under Section 54F.
2. Section 54F provides that capital gains on transfer of capital assets shall not be charged if invested in a residential house within the prescribed period. The new house constructed should be a residential house to qualify for the exemption. The Court clarified that the exemption is not applicable to investments in renovation or modification of an existing house. The Tribunal found that the capital gains were not utilized for the construction of a new house based on the approved plan, which only pertained to roof changing and construction/extension of the first floor. Therefore, the Tribunal's decision in applying the provisions of Section 54F was upheld.
3. In conclusion, the appeals were dismissed as no legal infirmity was found in the Tribunal's decision. The Court emphasized that the exemption under Section 54F is specifically for the construction of a new residential house and does not extend to renovation or modification of existing structures.
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2012 (8) TMI 1194
Issues involved:
Petition filed u/s 391 & 394 of the Companies Act, 1956 seeking sanction to the Scheme of Amalgamation of multiple companies.
Details of the judgment:
1. Petition filed seeking sanction to the Scheme of Amalgamation involving multiple companies situated in New Delhi jurisdiction.
2. Confirmation that no proceedings u/s 235 to 251 of the Companies Act, 1956 pending against the Petitioner Companies.
3. Previous order allowed dispensation of meetings for Shareholders and Creditors, leading to the current Petition for sanction.
4. Notice of the Petition issued to Regional Director, Northern Region, and Official Liquidator, with citations published in newspapers. Affidavit of Service and Publication filed showing compliance.
5. Official Liquidator's report stated no complaints against the proposed Scheme and no prejudicial conduct by Transferor Companies.
6. Regional Director's report highlighted that employees of Transferor Companies will seamlessly transition to Transferee Company post-sanction.
7. Regional Director raised concern about the Appointed Date being prior to Transferee Company's incorporation.
8. Petitioners clarified that the Appointed Date can be fixed retrospectively or prospectively, emphasizing the importance of the Effective Date for transfer.
9. Reference made to a previous judgment supporting the Petitioners' stance on the Appointed Date issue.
10. Previous orders of the Court rejecting similar objections by the Regional Director were cited in support of the Petitioners' position.
11. Court overruled the Regional Director's objection, emphasizing the importance of the Transferee Company's incorporation date aligning with the Scheme's effective date.
12. No objections received from any other party, and confirmation of the same by the Director of the Transferee Company.
13. Approval granted to the Scheme of Amalgamation based on Shareholders' and Creditors' approval, reports from Regional Director and Official Liquidator, with instructions for compliance with statutory requirements.
14. Petitioner Companies to deposit a sum in the Common Pool fund of the Official Liquidator voluntarily.
15. The Petition allowed in the terms mentioned above.
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2012 (8) TMI 1193
Issues involved: Restoration of Miscellaneous Petition, Maintainability of second Miscellaneous Petition for rectification.
Restoration of Miscellaneous Petition:
The applicant/assessee moved the present Miscellaneous Petition No. 80/Mds/2012 for restoration of M.P. No. 47/Mds/2012, which was filed to challenge the order of CIT(A)-I, Coimbatore. The Tribunal had previously dismissed the appeal of the assessee on 14.03.2012, providing detailed reasons for the decision. Subsequently, the assessee filed a Miscellaneous Petition seeking rectification of alleged mistakes in the order dated 14.03.2012. Despite the petition being fixed for hearing on 25.05.2012, no representation was made on behalf of the assessee. The Tribunal then dismissed the Miscellaneous Petition on merits on 25.05.2012 after examining the grounds and judgments relied upon by the assessee. Both the appeal and the subsequent Miscellaneous Petition were decided on merits, considering the grounds mentioned in the appeal and the Miscellaneous Petition. The Tribunal found no basis to interfere with its previous orders. The assessee failed to demonstrate any mistake apparent from the record in the petition for rectification, instead using it as an opportunity for re-appreciation of evidence, which is impermissible in law.
Maintainability of second Miscellaneous Petition for rectification:
Apart from the merits of the case, the Tribunal held that the second Miscellaneous Petition for rectification of its order or restoration application of the Miscellaneous Petition is not maintainable before the Tribunal. Citing the decision of the Hon'ble Orissa High Court in CIT Vs. ITAT (196 ITR 838), it was established that an order rejecting the application for rectification under section 254(2) is not an order passed under section 254(1) and therefore cannot be rectified under section 254(2). Further, the Hon'ble Madras High Court in Dr. S. Paneerselvam Vs. CIT (319 ITR 135) relied on the Orissa High Court's judgment to conclude that a second application for rectification is not permissible under section 254 of the Income Tax Act, 1961. Consequently, the Tribunal dismissed the present Miscellaneous Petition on the grounds of being not maintainable.
Separate Judgement:
No separate judgment was delivered by the judges in this case.
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2012 (8) TMI 1192
Offence by Companies - Public charitable - "A Person" Or "A Company" as referred to in Section 141 of the Negotiable Instruments Act (Act) - Trustees of the first accused Trust in-charge of the day-to-day affairs of the first accused Trust - Whether a Public Charitable Trust has been recognised as a juristic person for the purpose of Act - HELD THAT:- Applying the law laid down by the Constitution Bench of the Hon'ble Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer [1990 (5) TMI 229 - SUPREME COURT], as I have already concluded, considering the intention of the Legislature while bringing in Chapter- XVII of the Negotiable Instruments Act and the fact that a Trust having two or more trustees will squarely fall within the ambit of 'association of individuals' which in turn will fall within the meaning of the term 'company', I am of the view that a Trust having a single trustee should also be brought within the definition of the term 'company' and thus the expression 'Trust' should be read into the Explanation 'a' to Section 141 of the Negotiable Instruments Act. If this interpretation is not given, certainly Sections 138 and 141 of the Act will not have force and life, so far as they relate to a Trust having a single Trustee. Further, if one holds that a Trust having two or more trustees is a 'company' falling within the sweep of Sections 138 and 141 of the Act, at the same time a Trust having a single trustee will not fall within the ambit of Sections 141 and 138 of the Act, the result, as I have already concluded is only an absurdity. In order to avoid the said absurdity and in order to give force and life to the provisions of Sections 138 and 141 of the Act, I hold that the expression 'company' as explained in Section 141 of the Act takes into its ambit a Trust having a single trustee also. In view of this interpretation, I firmly hold, that a Trust, having either a single trustee or two or more trustees, is a 'company' in terms of Section 141 of the Negotiable Instruments Act.
My conclusions are summed up as follows:-
(i) A Trust, either private or public / charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable u/s 138 of the Negotiable Instruments Act.
(ii) A Trust, either private or public / charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act.
(iii) For the offence u/s 138 of The Negotiable Instruments Act, committed by the Trust, every trustee, who was in-charge of the day-to-day affairs of the Trust shall also be liable for punishment besides the Trust.
A perusal of the complaint would go to show that there are sufficient averments to the effect that these petitioners being the trustees of the Trust (Company) were in-charge of running of the Trust along with the second accused and they all entered into a Memorandum of Understanding on 06.10.2008, with the respondent in which they agreed to honour the cheques in question. The Memorandum of Understanding dated 06.10.2008, filed before the lower Court is found in page Nos. 69 to 88 of the typed set of papers filed by the petitioners. A reading of the above Memorandum of Understanding would go to show that the issuance of the said cheques in question on behalf of the first accused has been admitted by the petitioners and that they have assured that the cheques will be honoured on presentation.
The above averments in the complaint together with the Memorandum of Understanding would go to prima facie show that they were in-charge of the day-to-day affairs of the Trust (Company) and, therefore, the prosecution is maintainable as against them also. At this juncture, I wish to add that it is not my conclusive finding that these petitioners 2 to 8 are liable for punishment u/s 138 of the Negotiable Instruments Act by applying vicarious liability as envisaged in Section 141 of the Negotiable Instruments Act. I only say that as of now, there are prima facie materials to make out a prima facie case so as to maintain the prosecution. It is for the Trial Court to decide on evidence as to whether these petitioners 2 to 8 were really in-charge of the day-to-day affairs of the Trust (company) and so whether they are liable for punishment vicariously for the offences committed by the first accused Trust.
Thus, I hold that these petitions deserve only to be dismissed and accordingly, they are dismissed. Consequently, the connected miscellaneous petitions are closed.
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2012 (8) TMI 1191
Issues Involved:
1. Legitimacy of the appointment of Dinesh Reddy as DGP (HoPF).
2. Compliance with the Prakash Singh directive.
3. Effect of the stay of the Yadav judgment by the Supreme Court.
4. The principle of comity and its application.
5. The extent of the State's discretion in appointing the DGP (HoPF).
Summary:
Legitimacy of the Appointment of Dinesh Reddy as DGP (HoPF):
The appointment of Dinesh Reddy as DGP (HoPF) was challenged on the grounds that it transgressed the mandatory directive in Prakash Singh and others v. Union of India (2006) 8 SCC 1, and no due consideration was accorded to the seniority of Gautam Kumar. The Tribunal set aside the appointment, directing the State to conduct the selection afresh by forwarding the names of eligible officers to the UPSC for empanelment.
Compliance with the Prakash Singh Directive:
The Prakash Singh directive mandates that the DGP of the State shall be selected by the State Government from amongst the three senior-most officers empanelled by the UPSC. The State of Andhra Pradesh did not comply with this directive and instead followed an in-house selection process, which was found to be in violation of the Supreme Court's directive. The High Court upheld the Tribunal's decision, emphasizing that the Prakash Singh directive has continuing vitality and is non-derogable.
Effect of the Stay of the Yadav Judgment by the Supreme Court:
The State argued that the stay of operation of the Yadav judgment by the Supreme Court rendered the Prakash Singh directive inoperative. However, the High Court rejected this contention, stating that the stay of the Yadav judgment does not eclipse the principles and rationes contained therein. The Prakash Singh directive remains binding and must be followed.
The Principle of Comity and Its Application:
The State contended that the Tribunal should have deferred adjudication of Gautam Kumar's application until the Supreme Court disposed of the SLPs against the Yadav judgment. The High Court rejected this argument, stating that the principle of comity does not mandate suspension of adjudication in such circumstances. The doctrine of comity is intended to avoid conflict of judicial orders and does not apply to the facts of this case.
The Extent of the State's Discretion in Appointing the DGP (HoPF):
The State claimed it must have absolute freedom and discretion in appointing the head of the State police force. The High Court rejected this contention, stating that constitutional governance does not permit uncanalized or absolute discretion. The appointment to the post of DGP (HoPF) is governed by the All India Services Act and the relevant IPS Rules, and the State must comply with these regulations.
Directions:
1. The State of Andhra Pradesh must forward the names of all eligible officers in the rank of DGP in the HAG + Scale to the UPSC within one week.
2. The UPSC must prepare a panel and forward it to the State within two weeks.
3. The State must select one of the three senior-most officers from the UPSC panel for appointment as DGP (HoPF) within one week.
4. Dinesh Reddy may discharge the functions of DGP (HoPF) as an in-charge/officiating arrangement until a fresh appointment is made, but he will not draw the salary and emoluments attached to the post of DGP (HoPF).
Costs:
The writ petitions are dismissed with costs of Rs. 5,000, payable by the State of Andhra Pradesh to the Andhra Pradesh State Legal Services Authority within thirty days.
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2012 (8) TMI 1190
Dowry Death - Seeking grant of anticipatory bail - Proclaimed offender in terms of Section 82 - deceased had allegedly committed suicide after one year and eight months of marriage and further she was pregnant at the time when she had taken her life - whether the Appellant, who is elder brother of the husband of the deceased, has made out a case for anticipatory bail in terms of Section 438 of the Code of Criminal Procedure, 1973? - HELD THAT:- It is seen that the deceased had allegedly committed suicide after one year and eight months of marriage and further she was pregnant at the time when she had taken her life. On the basis of the complaint filed by the mother of the deceased, an FIR was registered and during the course of the investigation, the police recorded the supplementary statements of Hira Lal, father of the deceased, the neighbour of the deceased near the matrimonial home as well as the complainant -mother of the deceased.
According to the prosecution, it has been clearly made out, particularly, insofar as the Appellant is concerned, that there was a definite allegation against him. Further, the Appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.
By placing the relevant materials and two status reports submitted by the police, Mr. Sidharth Luthra, learned ASG submitted that the Appellant was a Proclaimed Offender. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.
In the light of the conditions prescribed in Section 438 of the Code and conduct of the Appellant immediately after the incident as well as after the interim protection granted by this Court, we are of the view that the Appellant has not made out a case for anticipatory bail. Unless free hand is given to the investigating agency, particularly, in the light of the allegations made against the Appellant and his family members, the truth will not surface.
Therefore, we are unable to accept the claim of the Appellant.
We make it clear that while upholding the rejection of the anticipatory bail, we have not expressed any opinion on the merits of the case. We also clarify that after surrender, the Appellant is free to move bail application before the Court concerned which may be disposed of in accordance with law.
Hence, the appeal is dismissed and the interim protection granted by this Court on 23.03.2012 stands vacated. The Appellant is directed to surrender within a period of one week from today.
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2012 (8) TMI 1189
Issues involved:
The judgment addresses various issues including the deletion of additions made by the Assessing Officer (AO) under different sections of the Income Tax Act, 1961, such as u/s 68, u/s 195 r/w section 40 (a) (i), u/s 40 (a) (i), u/s 37 (1), u/s 36 (1) (iii), u/s 40A (2), and u/s 43B.
Issue 1: Unexplained Cash Credit (u/s 68)
The High Court questioned whether the Income Tax Appellate Tribunal (ITAT) was justified in upholding the deletion of the addition of a substantial amount under section 68, considering the failure of the assessee to substantiate the creditworthiness of shareholders and the genuineness of transactions. The court highlighted the importance of proving the legitimacy of cash credits to avoid tax evasion.
Issue 2: Non-Deduction of TDS (u/s 195 r/w section 40 (a) (i))
The judgment examined whether the ITAT correctly upheld the deletion of an addition related to non-deduction of tax at source on payments made to a non-resident company for aircraft maintenance reserves. The court assessed the compliance with TDS provisions under section 195 and section 40 (a) (i) to determine the tax liability of the assessee.
Issue 3: Inadmissible Expenses (u/s 40 (a) (i))
The court deliberated on the ITAT's decision not to adjudicate the inadmissibility of expenses paid to foreign companies for training and manpower development without deducting TDS. The judgment analyzed the implications of failing to adhere to TDS provisions under section 40 (a) (i) for such expenditures.
Issue 4: Non-Deduction of TDS on Payments to Non-Residents (u/s 40 (a) (i))
The judgment reviewed the ITAT's decision to uphold the deletion of an addition made by the AO for non-deduction of TDS on payments to non-residents for a computerized reservation system. The court assessed the compliance with TDS requirements under section 40 (a) (i) to determine the tax implications of the transaction.
Issue 5: Disallowance of Business Expenditure (u/s 37 (1))
The High Court examined the ITAT's decision to delete an addition related to the disallowance of a portion of expenditure incurred on issuing free tickets as a business expense. The judgment assessed whether the expenditure was exclusively for business purposes as required under section 37 (1) of the Income Tax Act, 1961.
Issue 6: Disallowance of Interest on Borrowed Capital (u/s 36 (1) (iii))
The judgment analyzed the ITAT's decision to delete an addition for disallowance of interest paid on borrowed capital due to substantial interest-free funds advanced to sister concerns. The court considered the provisions of section 36 (1) (iii) to determine the allowability of interest expenses in such scenarios.
Issue 7: Disallowance of Foreign Travel Expenses (u/s 37 (1))
The High Court reviewed the ITAT's decision to delete an addition for the disallowance of a portion of foreign travel expenses claimed as business expenditure. The judgment assessed the genuineness of the expenses under section 37 (1) to ascertain their admissibility for business purposes.
Issue 8: Disallowance of Consultancy Expenses (u/s 40A (2))
The judgment scrutinized the ITAT's decision to uphold the deletion of an addition for disallowance of consultancy expenses paid to a specific entity under section 40A (2). The court assessed the reasonableness and substantiation of the services rendered to determine the legitimacy of the claimed expenditure.
Issue 9: Disallowance of Staff Welfare Expenses
The High Court examined the deletion of an addition related to the disallowance of staff welfare expenses considered as entertainment expenses. The judgment assessed the genuineness and reasonableness of the expenditure to determine its classification under the Income Tax Act, 1961.
Issue 10: Disallowance of Advertising and Publicity Expenses
The judgment analyzed the deletion of an addition for the disallowance of advertising and publicity expenses not related to the relevant assessment year. The court assessed the relevance and timing of the expenses to ascertain their allowability under the Income Tax Act, 1961.
Issue 11: Disallowance of Air Travel Tax
The High Court deliberated on the deletion of an addition for the disallowance of air travel tax paid by the assessee, considering the provisions of section 43B. The judgment highlighted the
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2012 (8) TMI 1188
Issues involved: Revenue appeal against CIT (A) orders allowing set-off of carried forward business losses against STCG u/s 50 and treating unclaimed unsecured loans as business income instead of "Income from other sources."
Issue 1 - Set-off of carried forward business losses against STCG u/s 50:
The assessee, a wholesale distributor of pharmaceutical goods, filed income return showing Rs. 12,30,400, but assessed at Rs. 76,36,740. The assessee sold a shop for Rs. 46.00 lakhs, claiming set-off of brought forward business loss of Rs. 20,20,832. However, AO allowed set-off of only Rs. 1,21,337 without discussion. Additionally, an amount of Rs. 37,84,351 credited under "other income" in the Profit & Loss A/c was treated as "other sources," affecting the set-off of carry forward business loss. CIT (A) directed AO to allow set-off of unabsorbed business loss against gain calculated u/s 50. The ITAT upheld this decision citing Section 72, allowing set-off against profits of any business assessable for that year, even if not taxable under "profits and gains from business or profession." The Revenue's appeal was dismissed.
Issue 2 - Treatment of unclaimed unsecured loans as business income:
AO treated the unclaimed unsecured loans written off as income under section 41(1) without specifying the lack of connection to the business activity. CIT (A) found a direct nexus to the business activity, concluding that the amounts were correctly treated as income from profits and gains of profession. The ITAT upheld this decision, noting that except for dividend income, the remaining amounts were liabilities returned back, interest concessions, and discounts received, all connected to the business activity. The Revenue's appeal on this ground was also rejected.
Separate Judgement: None.
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2012 (8) TMI 1187
Allotment of Commercial Plots by way of Auction - Delayed in payment of installments - Liability to pay interest - Terms and condition of the allotment letter binds both the parties - In present case, since PUDA had failed to provide the basic amenities, Respondents were not legally obliged to pay interest, penal interest, penalty etc. on the delayed installments. PUDA submitted that the electrical works had been completed by 24.12.2002, public health works had been completed by 22.11.2002 and the development of the commercial pocket had been completed by 20.12.2002. On getting possession after payment of 25% of the total cost, Respondent raised construction on the allotted site in the year 2002.
HELD THAT:- There was no dispute that the plots were auctioned on 16.3.2001 on the basis of the terms and conditions stipulated therein. Clause 25 is the most important clause, which binds both the parties, the Respondents had accepted the commercial plots with the open eyes, subject to the conditions. that after having accepted the offer of the commercial plots in a public auction with a super imposed condition i.e. on "as is where is" basis and after having accepted the - terms and conditions of the allotment letter, including installment facility for payment, Respondents cannot say that they are not bound by the terms and conditions of the auction notice, as well as that of the allotment letter. On facts also, court have found that there was no inordinate delay on the part of PUDA in providing those facilities.
Hence, the High Court was not justified in holding that the Respondents are not liable to pay the interest, penal interest and penalty for the period commencing from 1.6.2001 to 31.12.2002 for the belated payment of installments. Consequently, the judgments of the High Court are set aside and the writ petitions would stand dismissed and the appeals would stand allowed as above. There will be no order as to costs.
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2012 (8) TMI 1186
Issues Involved:
1. Whether the Respondent accused is guilty u/s 304 Part II or u/s 304A of the Indian Penal Code (IPC).
2. Examination of facts and evidence.
3. Prosecution and defense arguments.
4. Determination of appropriate sentencing.
Summary:
1. Whether the Respondent accused is guilty u/s 304 Part II or u/s 304A of IPC:
The Supreme Court deliberated whether the Respondent accused should be convicted u/s 304 Part II of IPC, as decided by the Trial Court, or u/s 304A of IPC, as held by the High Court. The High Court had reduced the sentence to two years, disbelieving the testimony of Sunil Kulkarni, which was crucial for the Trial Court's decision.
2. Examination of facts and evidence:
On the night of 9/10.01.1999, the Respondent driving a BMW car caused an accident resulting in the death of six persons and injury to one. The prosecution provided evidence of rash and negligent driving, the presence of alcohol in the Respondent's blood, and attempts to destroy evidence post-accident. Despite material witnesses turning hostile, the Trial Court relied on Sunil Kulkarni's testimony, corroborated by the scene of the crime, to convict the Respondent u/s 304 Part II IPC.
3. Prosecution and defense arguments:
The prosecution argued that the Respondent, without a valid driving license and under the influence of alcohol, drove rashly and negligently, knowing the likely fatal consequences, thus fulfilling the criteria for u/s 304 Part II IPC. The defense contended mitigating circumstances such as the Respondent's age, lack of criminal record, compensation paid to victims' families, and the foggy conditions at the time of the accident, arguing for the conviction u/s 304A IPC.
4. Determination of appropriate sentencing:
The Supreme Court concluded that the Respondent had knowledge that his actions could cause death, thus falling under u/s 304 Part II IPC. However, considering mitigating factors, the Court maintained the sentence awarded by the High Court, which the Respondent had already undergone. Additionally, the Court imposed a fine of Rs. 50 lakh to be paid to the Union of India for compensating victims of motor accidents and mandated two years of community service, failing which the Respondent would face further imprisonment.
Conclusion:
The Supreme Court restored the Trial Court's conviction u/s 304 Part II IPC but maintained the sentence awarded by the High Court. The Respondent was also directed to pay Rs. 50 lakh and perform community service, with default conditions leading to additional imprisonment.
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2012 (8) TMI 1185
Issues involved:
1. Interpretation of provisions u/s Notification No. 26/2005-Service Tax for eligibility of head office to issue documents for passing on credit to manufacturing unit.
2. Eligibility of manufacturer to avail Cenvat credit based on non-prescribed documents under Rule 9 of Cenvat Credit Rules, 2004.
3. Allowance of Cenvat credit based on documents lacking statutory information as per Rule 4A(2) of Service Tax Rules, 1994.
Interpretation of Notification No. 26/2005-Service Tax:
The High Court admitted the appeal to determine whether a party's head office, not registered u/s Notification No. 26/2005-Service Tax, can issue documents to transfer credit to their manufacturing unit. The key question was whether Cenvat credit can be allowed based on such documents.
Eligibility of Manufacturer for Cenvat Credit:
Another issue raised was the eligibility of a manufacturer to avail and utilize Cenvat credit using documents not prescribed under Rule 9 of the Cenvat Credit Rules, 2004. This raised the question of the validity and acceptability of non-prescribed documents for claiming Cenvat credit.
Allowance of Cenvat Credit based on Statutory Information:
The Court also considered whether Cenvat credit could be allowed based on documents lacking statutory information as required by Rule 4A(2) of the Service Tax Rules, 1994. This issue focused on the importance of statutory information in documents for claiming Cenvat credit.
The Court noted the affidavit of service filed by the Deputy Commissioner, Central Excise, stating that the petition and annexures were served on the respondents. As no appearance was made for the respondent, the Court directed notice to be sent for a hearing on 24th September, 2012. Additionally, the Court ordered a stay on proceedings following an order of remand by the Customs, Excise and Service Tax Appellate Tribunal until further notice.
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2012 (8) TMI 1184
Issues involved: Appeal against order allowing assessee's appeal in violation of section 47 of the Act regarding transfer of assets to subsidiary company.
Summary:
1. The department filed an appeal against the order of ld CIT(A) for assessment year 2007-08, challenging the allowance of assessee's appeal u/s 47 of the Act related to the transfer of assets to a subsidiary company.
2. The assessee acquired assets from Tata Motors Limited (TML) during the financial year 2006-07 and claimed depreciation based on the Written Down Value (WDV) in TML's books. Subsequently, TML transferred shares of the assessee to another company, leading to a change in the treatment of the transferred assets. The AO disagreed with the revised claim of the assessee, leading to an appeal.
3. Ld CIT(A) allowed the depreciation based on the actual price paid by the assessee to TML, citing a similar decision by ITAT Mumbai in another case. The department appealed against this decision.
4. During the hearing, the ld D.R. supported the AO's order, while the ld A.R. defended the order of ld CIT(A) citing relevant provisions of the IT Act.
5. The Tribunal agreed with ld A.R., referencing a previous case involving Essar Oil Ltd, where it was established that the cost of acquisition for depreciation should be based on the actual price paid by the assessee. The Tribunal upheld the order of ld CIT(A) based on this precedent.
6. The Tribunal noted that the issue was already settled by the ITAT and confirmed by the Hon'ble High Court, finding no fault in the order of ld CIT(A) and dismissing the department's appeal.
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2012 (8) TMI 1183
Issues Involved:
The judgment deals with the disallowance of interest payments u/s 40A (2) (b) of the Income Tax Act in the assessment years 2001-02, 2002-03, and 2003-04. The primary issue is whether the interest paid by the assessee at 18% to depositors is excessive and unreasonable compared to the market rate, leading to disallowance by the Assessing Officer and subsequent confirmation by the CIT(A).
Assessment Year 2001-02:
The assessee, engaged in pulse, rice & roller flour milling business, faced disallowance of interest payments by the Assessing Officer under u/s 40A (2) (a) of the Act, as the interest rate was considered higher than the prevailing market rate. The CIT(A) restricted the disallowance to a certain amount after considering various factors and market rates. The ITAT Ahmedabad Bench, in a similar case, had previously ruled in favor of the assessee, stating that the interest rate of 18% was not excessive given the circumstances. The Tribunal allowed the appeal of the assessee for AY 2001-02 based on consistency with the previous decision.
Assessment Years 2002-03 and 2003-04:
Since the facts and issues for these assessment years were similar to that of 2001-02, the Tribunal decided to follow the decision taken for AY 2001-02. Both appeals for AY 2002-03 and 2003-04 were allowed in favor of the assessee based on the previous ruling and consistency in decision-making.
Conclusion:
In conclusion, the ITAT Ahmedabad Bench allowed all three appeals of the assessee related to the disallowance of interest payments u/s 40A (2) (b) for the assessment years 2001-02, 2002-03, and 2003-04. The Tribunal considered market rates, previous decisions, and the specific circumstances of the case to rule in favor of the assessee, overturning the disallowances made by the revenue authorities.
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