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Showing 41 to 60 of 1585 Records
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2015 (8) TMI 1555
Dishonor of Cheque - legally enforceable liability or not - acquittal of accused - framing of charges - presumption of innocence - Section 138 of NI Act - HELD THAT:- In the present case, there is no conclusive proof of actual payment of Rs.50,000/- by the petitioner-complainant to the accused/respondent. The petitioner has failed to show that at any point of time, he was having this amount in his account. Even the date on which the alleged transaction took place has not come either in the complainant or in the statement of the petitioner. The purpose of advancing alleged friendly loan has also not come forth. The stand of the petitioner that he had advanced the loan to the accused by taking the money from his father is also without any foundation in the absence of examination of his father as a witness. The impugned judgment passed by the learned trial Court is detailed and reasoned judgment and no fault can be found therewith.
The finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record. In fact there is no infirmity in the reasoning assigned by the trial Court for acquitting the accused/respondent.
It is a settled law as has been held in C. Antony Vs. K.G. Raghavan Nair, [2002 (11) TMI 353 - SUPREME COURT] that even if a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused. In the cases of acquittal, there is double presumption in his favour; first the presumption of innocence, and secondly the accused having secured an acquittal, the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible.
The leave to appeal stands declined.
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2015 (8) TMI 1554
Penalty u/s 271(1)(c) - Addition u/s 68 - assessee has booked cash sales of Rs. 3 Crores in the month of September,2006 to different parties - HELD THAT:- Merely because addition on merit have been confirmed by itself is no ground to sustain the penalty automatically. It is an admitted fact that cash sales of Rs. 3.12 Cr were out of the total sales of Rs. 94.54 Cr. The assessee maintained complete books of account and the accounts are audited. The assessee produced books of account, purchase bills, sales bills and stock register before the authorities below and disclosed complete facts with regard to the sales made to different parties. Therefore, nothing was concealed to the revenue department in filing of the return as well as at the time of assessment framed by the AO.
The sale bills were supported by sales tax paid challans and sales tax return filed by the assessee with Commercial Tax Department of Una and as well as shown by the assessee in the books of account have been accepted by the sales tax authorities (VAT authorities). Thus, the sales made by the assessee including the cash sales have been accepted by the sales tax authorities. The authorities below dis-believed the explanation of the assessee with regard to cash sales made to different parties because their complete details are not noted in the bills.
It was also noted that since no complete particulars of the purchasers are mentioned in the sale bills, therefore, cash sales are not subjected to verification. This was the sole reason for making the addition as well as levying the penalty under section 271(1)(c) of the Act against the assessee - As in the case of R.B. Jessa Ram Fateh Chand [1969 (7) TMI 10 - BOMBAY HIGH COURT] and similarly M. Durai Raj [1971 (3) TMI 11 - KERALA HIGH COURT] held that the books of account cannot be rejected if in cash sales, names and address of the purchasers are not mentioned. There is no need to mention name and address in the cash sales. These judgements support the version of the assessee that mere dis-believing the explanation of the assessee would not be enough to levy the penalty under section 271(1)(c)
The facts and circumstances of the case shall have to be considered because levy of the penalty is discretionary in nature. The Hon'ble Supreme Court in the case of M/s Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT] held that on every demand, penalty is not automatic.
We are of the view that even if addition on quantum have been sustained, however assessee has been able to make out an arguable and debatable case to prove that penalty need not be imposed in this case. We, therefore, do not subscribe to the views of the authorities below in levying and sustaining the penalty under section 271(1)(c) of the Act. We, accordingly, set aside the orders of the authorities below and delete the penalty. - Decided in favour of assessee.
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2015 (8) TMI 1553
Exemption u/s 11 - as per revenue receipts of the assessee are commercial in nature - Charitable activity u/s 2(15) proved or not? - whether the Revenue has brought on record any material/evidence which may suggest that the assessee was conducting its affairs on commercial line with the motive to earn profit? - HELD THAT:- On dissolution of the assessee authority, all properties, funds and dues which are vested in or realizable by the authority shall vest in or be realisable by the state government and therefore, the funds generated during so called charitable purpose period may be utilized for the purpose of the business - On page 5 of the assessment order, there is a chart of the income of the assessee from various sources and as per the same, Realisation from allotted properties is only Rs. 480.45 lacs and interest income is of Rs. 458.24 Lacs plus Rs. 232.25 lacs and Other receipts Rs. 665.62 lacs. In this manner, as against Realisation from allotted properties of only Rs. 480.45 lacs, interest income and Other receipts is Rs. 1356.11 Lacs.
In view of these facts, the A.O. came to the conclusion that the receipts of the assessee are commercial in nature. Under these facts, in our considered opinion, the judgment of Hon’ble Allahabad High Court rendered in the case of CIT vs. Lucknow Development Authority[2013 (9) TMI 570 - ALLAHABAD HIGH COURT] cannot be made applicable in the facts of the present case. Learned CIT (A) has simply followed this judgment without examining this aspect that the facts in the present case are tallying or not with the facts in the case of CIT vs. Lucknow Development Authority (Supra). Therefore, we feel it proper that this issue should go back to CIT (A) for a fresh decision after examining this aspect that the facts in the present case are tallying with the facts in the case of CIT vs. Lucknow Development Authority (Supra) or not. We, therefore, set aside the order of CIT (A) and restore the entire matter back to him for a fresh decision - Appeal of the revenue is allowed for statistical purposes.
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2015 (8) TMI 1552
Detention of imported Consignments - wrongful goods dispatched from China erroneously and petitioner could not act immediately on account of intervening holidays - R22 refrigerant gas - restricted goods/improper import - petitioner seeks release of consignment or immediate re-export of the consignments as the goods were hazardous to the environment - HELD THAT:- Admittedly, on 30.01.2015, the consignments have been detained by the customs authority pointing out as an improper import on 30.01.2015 invoking Section 124 of the Customs Act, 1962. The petitioner company approached the authority concerned repeatedly opting to pay penalty for the purpose of release of goods with an undertaking to participate in the adjudication proceedings. Both the prayers were never met by the authorities and the matter is kept pending without passing any order.
The learned senior panel counsel appearing for the 1st respondent would submit that even according to Section 69 of the Customs Act, the time limit of six months granted for the authority to take a decision is extended up to six months and the six months time is not yet over and hence time may be granted for passing appropriate orders.
The 1st respondent is directed to decide the issue, one way or the other, with regard to release of consignments or to enable the petitioner to re-export the consignments to the originating company or otherwise, after affording due opportunity to the petitioner - Petition disposed off.
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2015 (8) TMI 1551
TDS u/s 194A - amount of interest deposited with the Motor Accident Claims - HELD THAT:- When interest is paid by any person, who is not an individual or a Hindu Undivided Family, who is responsible for paying to a resident any income by way of interest other than income by way of interest on securities, he is liable to deduct income-tax at the rate in force
As it would quite apparent that the award amount inclusive of interest in the present case has been deposited by the petitioner Company on 25.6.2003, 14.7.2003, 28.5.2003, 11.7.2003 and 24.7.2003 i.e. after 1st June, 2003, the date on which clause (ix) of sub-section (3) of Section 194-A of the Act came into force, which obliges the deductor to make any deduction at source on an amount paid by way of the interest on the compensation awarded by the Motor Accident Claims Tribunal. In view of the specific provisions contained in the Income Tax Act, the petitioner Company was duty bound to deduct the amount of income-tax from the amount of interest deposited with the Motor Accident Claims Tribunal for being disbursed to the respondents/claimants.
In the matter of The New India Assurance Company Limited v. Ramesh Kumar Tamrakar and others [2010 (12) TMI 1340 - CHHATTISGARH HIGH COURT] it has been clearly held by this Court that in view of the provisions contained in clause (ix) of sub-section (3) of Section 194-A of the Act, if the interest component of the award had been deposited after 1-6-2003, the Insurance Company is duty bound to deduct T.D.S. from the amount of interest paid by it.
Claims Tribunal is absolutely unjustified in holding that the petitioner Insurance Company ought not to have deducted the tax at source from the amount of interest paid to the respondents/claimants, as such, the impugned order dated 8.10.2004 deserves to and is accordingly set aside and it is held that the petitioner Company is absolutely justified in deducting tax at source while making the payment of the award inclusive of the interest. In consequence of the aforesaid discussion, the writ petition deserves to and is accordingly allowed and the impugned order is hereby set aside,
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2015 (8) TMI 1550
Addition u/s 68 - unexplained cash deposits in bank - As per the explanation furnished by him, Shri Dalip Singh was an agriculturist, not well educated and had come from village for making purchases for marriage of his daughter and the money was deposited in the bank account, since, the assessee and Shri Dalip Singh both had to make purchases for the marriage of their daughters - HELD THAT:- On perusal of the stated evidences and in the back ground of the fact that Shri Dalip Singh himself has confirmed before the Assessing Officer that he has deposited this amount of Rs.3,55,000/- in assessee’s bank account, this explanation cannot be rejected outrightly. These evidences filed by the assessee also prove that Shri Dalip Singh is a man of means and there is also a relation between him and the assessee, therefore, it cannot be denied that Shri Dalip Singh, in fact, has given this amount to the assessee.
The explanation given by the assessee and Sh. Dalip Singh that the amount was deposited for making purchases for the marriage of daughter may sound weird and can raise suspicion in the mind of Assessing Officer. It can be a trigger point for further investigation by the Assessing Officer. However, in its order the Assessing Officer has not been able to bring on record any material or evidence to falsify this explanation and documentary evidences filed by the assessee. Even before me, the learned DR has not been able to do the same. The addition has solely been made on the basis of surmises. Suspicion howsoever strong cannot partake the character of the evidence/material, as held by the Apex Court in the land mark judgement in case of Umcharan Shaw & Bros. vs. CIT [1959 (5) TMI 11 - SUPREME COURT]
Thus we are not able to come to a conclusion other than that the deposit has in fact been deposited by Shri Dalip Singh. Therefore, the addition made by the Assessing Officer is hereby deleted. - Decided in favour of assessee.
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2015 (8) TMI 1549
Seeking provisional release of imported goods seized - LED Spare parts for Lighting Fixtures Spare Parts for Lighting Fixtures and Capacitor for Lighting Fixtures - section 110-A of Custom Act 1962 read with customs (Provisional Duty Assessment Regulations) 1963 - HELD THAT:- The petitioner is permitted to file an application within one week from the date of receipt of a copy of this order and also directed to appear before the respondent on the date and time so specified so as to assess as provided by law. The matter shall be decided within 3 weeks from the date of receipt of the application submitted by the petitioner.
Petition disposed off.
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2015 (8) TMI 1548
Blacklisting the petitioner from the panel of the respondent SDMC - non-payment by the petitioner of the outstanding dues - HELD THAT:- There can be no proposition of law in absolute terms that pendency of a litigation between the contractor and an authority / body / municipality / government, the dispute wherein entitles the authority / body / municipality / government to exercise the power to blacklist the contractor, cannot be a ground to deprive such authority / body / municipality / government from exercising the power of blacklisting. If it were to be so held, it would become very easy for a contractor to defeat the right of the authority / body / municipality / government to blacklist, by, as soon as the dispute has arisen, initiate the litigation - It would thus follow that the exercise of the power to blacklist is independent of any provision therefor in any law or in the contract.
The right of the government / governmental agency to blacklist is in addition to the right to make a claim for the amount, which according to it is outstanding or any other right which it may have under the contract or law.
Whether invocation of one right i.e. of initiating recovery proceedings, would bar the invocation of another right i.e. to blacklist? - HELD THAT:- The power to blacklist, in this case on the ground of non-payment of dues, is independent of the power to recover the said dues, whether by instituting arbitration proceedings or by instituting a suit for recovery of the said amount and the mere pendency of such proceedings would per se not be a bar to the exercise of the power to blacklist.
If during the pendency of legal proceedings the power to blacklist has been invoked, what would be the proper fora for entertaining a challenge if any made to the exercise of such power-whether by way of an independent proceeding or by way of an application for interim relief in the pending legal proceedings? - HELD THAT:- If blacklisting is on the same grounds which are subject matter of pending legal proceedings, the proper mode for challenging the said action of blacklisting would be by way of an application for interim relief in the same legal proceedings.
The adjudication of a challenge to the order of blacklisting would necessarily entail determination, at least prima facie, of the grounds of blacklisting. It is opined that the Court / Arbitral Tribunal before which the disputes are already pending adjudication, would be a more appropriate fora for determining the said factor and / or for balancing the equities, being already seized of the matter. Permitting such challenge to be made by an independent proceeding, whether by way of a suit or a writ petition, would not only lead to multiplicity of proceedings but may also be capable of conflicting views and decisions and which are to be best avoided.
In the present case, rather than adopting the aforesaid course of action it is deemed appropriate that the Arbitrator Mr. Bharat Bhushan Addl. District Judge (Retd.), before whom the proceedings are pending, be requested to dispose of the same as expeditiously as possible and before 30th November, 2015. The said time has been arrived at after understanding from the counsels the stage at which the arbitration proceedings are pending and the time required to be taken by them for further proceedings and on their assurance that they will not seek any adjournment and fully co-operate with the Arbitral Tribunal in disposal of the arbitration proceedings by the said date.
Petition disposed off.
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2015 (8) TMI 1547
Dishonor of Cheque - insufficiency of funds - delay of 5 days in filing the complaint - seeking condonation of delay in filing the complaint - Section 142(b) of Negotiable Instruments Act - rebuttal of evidences - HELD THAT:- After going through the records, the trial Court has come to the conclusion that the accused is not able to probablise the defence set up by him and therefore, the offence punishable under Section 138-A of the Act is proved. The rebuttal evidence placed by the accused is not at all sufficient to discharge this burden to the effect that he has not committed any offence is the finding of the trial Court. Therefore, the trial Court has come to the conclusion that the accused had received a sum of ₹ 1.5 lakhs from the complainant and the cheque marked as per Ex. P1 was issued for having received the said amount in discharge of the debt. Therefore, he is stated to have committed the offence punishable under Section 138 of the Act.
In the present case, the complainant had filed an application under Section 5 of the Limitation Act supported by an affidavit sworn by him, explaining the reasons for the delay of five days in filing the complaint. This aspect of the matter, as argued by learned Counsel Sri.Ameet Kumar Deshpande, has not been considered by the trial Court. But, this aspect of limitation had been raised as one of the grounds before the First Appellate Court in the appeal filed under Section 374 of Cr.P.C. by the accused in Criminal Appeal No. 1/2014.
In fact, the present case stands on a higher footing than the facts found in Pawan Kumar Ralli's case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment, the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. In the present case, there was a delay of five days and therefore, the complainant has filed an application under proviso to Section 142 (b) of the Limitation Act, which has come into effect on 06.02.2003.
What is the sufficient cause for condonation of delay is dependent upon the facts of each case and delay may be liberally condoned without adopting a pedantic approach as held by the Hon'ble Apex Court in the case of LAO Anantanay Vs. Khathij [1987 (2) TMI 61 - SUPREME COURT]. The proviso to clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay, such proceedings do not have any force of law. If delay is noticed, the trial Court can even call upon the complainant to file an application for condonation of delay.
Therefore, it is expected of all the trial Courts dealing with offence punishable under Section 138 of N.I. Act to direct the office to put-up a specific note about the delay, if any, in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process, the judge to specifically indicate that there is no delay in filing the complaint.
The matter is remitted to the trial Court to pass appropriate orders on the application already filed for condonation for delay - petition allowed.
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2015 (8) TMI 1546
Additional complaint - respondent complainant/ Board sought to make the petitioners as accused persons, not in the capacity as Directors or Principal/responsible officers of M/s. QRG Central Hospital & Research Centre but as Directors or authorised representatives of M/s. QRG Medicare Limited, a different company incorporated under the Companies Act - HELD THAT:- The facts of the case are hardly in dispute. Original Complaint No. 10 of 2013 (Annexure P-5) was already pending. In the said original complaint, even the summoning order dated 25.4.2014 (Annexure P-7) has been issued by the learned court of competent jurisdiction. During the pendency of the above-said original complaint (Annexure P-5), complainant-respondent/Board filed the impugned additional complaint No. 158 of 2014 dated 3.9.2014 (Annexure P-1), which was not maintainable in the present form and at this stage of the trial of original complaint. Learned senior counsel for the petitioners has rightly contended and was fully justified to say so that once the learned court has taken the cognizance of the original complaint, the complainant-Board ought to have waited till the appropriate stage and the present petitioners along with other accused persons, if any, could have been summoned to face the criminal trial as additional accused, by moving an appropriate application under Section 319 Cr.P.C.
In case, after re-examination of the matter, the respondent- Board was of the view that some additional accused were also involved in the commission of offence in question, it should have waited and taken recourse to the well known procedure of law provided under Section 319 Cr.P.C., by invoking the said provisions at the appropriate stage. Such peculiar fact situation, as obtaining in the present case, has been taken care of by the legislature by providing Section 319 Cr.P.C on the statute book - However, since the complainant-Board proceeded in haste without waiting for the appropriate stage of the criminal trial of its original complaint (Annexure P-5), additional complaint (Annexure P-1) was not maintainable and the same cannot be sustained, for this reason also.
The cognizance of the offence having already been taken by the learned Magistrate, while issuing summoning order (Annexure P-7) in the original complaint (Annexure P-5), neither the additional impugned complaint (Annexure P-1) was maintainable nor the impugned summoning order (Annexure P-3) could have been issued, thus, the impugned additional complaint (Annexure P-1) as well as the impugned summoning order (Annexure P-3) cannot be sustained, for this reason as well.
Petition allowed,
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2015 (8) TMI 1545
Refund of the unutilized credit - absence of any provision for refund especially in Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- Appeal admitted on the substantial question of law.
List for hearing after six weeks.
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2015 (8) TMI 1544
Validity of DRP order - violating the principle of natural justice - Failure to provide reasonable opportunity to the Appellant to furnish documents and evidences - HELD THAT:- It would meet the ends of justice if the order of the DRP is set aside, because in our opinion certainly adequate opportunity of being heard is not allowed by the DRP to the assessee. There are different dates mentioned in the order of the DRP supplied to the assessee and the order in the file of the DRP. No satisfactory explanation for this variation in dates in both the orders could be given by the ld. CIT-DR. In the order-sheet there is a noting of only one date of hearing, i.e., 28.11.2014 on which date the assessee was directed to file chart/submission and time was granted up to 05.12.2014. However, thereafter there is no other noting whether any further hearing took place or not.
DRP has passed the order without allowing adequate opportunity of being heard to the assessee. We, therefore, set aside the order of the DRP and restore the matter back to its file. We direct the DRP to allow adequate opportunity of being heard to the assessee, and thereafter pass a speaking order in respect of assessee’s objections in accordance with law. Assessee’s appeal is deemed to be allowed for statistical purposes.
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2015 (8) TMI 1543
Depreciation on the windmill - Addition on the ground that the Revenue has filed an appeal before the Apex Court against the judgment of the Madras High Court in Velayudhaswamy Spinning Mills Ltd. [2010 (3) TMI 860 - MADRAS HIGH COURT] - AO admits in the assessment order that the issue before him is similar to one that was decided by the Madras High Court - HELD THAT:- No infirmity in the order of the lower authority in following the binding judgment of the Jurisdictional High Court. A mere pendency of SLP before the Apex Court cannot be a reason for not following the judgment of the Jurisdictional High Court. It is not the case of the Revenue that the operation of the judgment of the Madras High Court was stayed by the Apex Court. In those circumstances, this Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed.
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2015 (8) TMI 1542
Suit for declaration to be the owner of property - Possession of property - restraint from parting with possession of the suit land.
HELD THAT:- A perusal of the original plaint would evince that there is no admission made by the appellant that it is not in possession of the suit land. The plaint has been very inartistically drafted and unfortunately the lawyer has not even used the word that originally Amir Chand and Brij Lal and thereafter Matwal Chand held the properties on behalf of the plaintiff as trustees, pending formal constitution of the plaintiff as a body incorporate. The entire pleadings in the plaint, meaningfully read, pleads so. But yet the counsel did not formally incorporate said aspect in the pleadings. It is trite that it is the substance of the pleadings which matters and not the form. Meaningfully read, the suit is based upon the plea that the suit property was purchased by Amir Chand and Brij Lal for the benefit of the members of Jhang Biradari Association and the beneficiaries would be such persons who become members of the plaintiff and were migrants to India from Jhang upon partition.
It is apparent that while giving ink to the thought of the author i.e. drafting the prayer in the application seeking interim relief, giving reflection to the thought of the plaintiff, the counsel has in a mechanical way prayed that the defendants be restrained from parting with possession of the suit land.
A right to sue accruing has not to be confused with the cause of action. The wrong alleged, when committed, infringing upon a right would give rise to a right to sue. Simultaneously would accrue the cause of action to sue. The facts pleaded for purposes of cause of action have a nexus to the prayer and the pleadings to bring out the cause of action would not be the pleadings to determine when did the cause of action accrue or when did the right to sue commence. Limitation would commence from the date when the right to sue accrued - It is settled law that a cue can be had from the Indian Trust Act, 1882 for understanding the various terms as well as the salient features attached to a Trust.
Once a Trust always a Trust, is the trite proposition of law, like one another proposition, 'once a mortgage always a mortgage'. The Trust property cannot be allowed to be dissipated in any manner - It is a common principle that whenever a Trustee dies his legal representatives, not necessarily only the legal heirs of the deceased trustee, could rightly manage the property till a proper trustee is appointed. Even a trustee de son tort could safeguard the trust property.
There are two elements involved in the concept possession, namely, 'corpus possessionis' and 'animus possidendi'. The owner need not necessarily be in physical possession at all times. Besides, in the case of a Trust the physical possession by the trustee would actually be a case of custody of the property being with the trustee and legal possession being with the trust - There was no need to seek any cancellation of the sale-deed dated May 16, 1962 because in the plaint the said sale-deed has not been challenged. Meaningfully read, the pleading is that Amir Chand and Brij Lal executed the sale-deed in question in favour of Matwal Chand because Matwal Chand was the Secretary of the Association and he held the property as a trustee.
Impugned order is set aside - application filed by the appellant to amend the plaint is allowed.
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2015 (8) TMI 1541
Revision u/s 263 by CIT - Addition u/s 68 - HELD THAT:- As decided in M/S SUBHLAKSHMI VANIJYA PVT. LTD., TULSI TRACOM PVT. LTD., KOLKATA AND OTHERS [2015 (8) TMI 174 - ITAT KOLKATA] contention of the assessee that since the AO of the assessee company was not empowered to examine or make any addition on account of receipt of share capital with or without premium before amendment to section 68 by the Finance Act, 2012 w.e.f. A.Y. 2013-14 and hence the CIT by means of impugned order u/s 263 could not have directed the AO to do so, is unsustainable.
Failure of the AO to give a logical conclusion to the enquiry conducted by him gives power to the CIT to revise such assessment order - the notices u/s 263 were properly served through affixture or otherwise. Further the law does not require the service of notice u/s 263 strictly as per the terms of section 282 of the Act. The only requirement enshrined in the provision is to give an opportunity of hearing to the assessee, which has been complied with in all such cases.
Limitation period for passing order is to be counted from the date of passing the order u/s 147 read with sec. 143(3) and not the date of Intimation issued u/s 143(1) of the Act, which is not an order for the purposes of section 263. In all the cases, the orders have been passed within the time limit. CIT having jurisdiction over the AO who passed order w/s 147 read with section 143(3), has the territorial jurisdiction to pass the order u/s 263 and not other CIT.
Addition in the hands of a company can be made u/s 68 in its first year of incorporation.After amalgamation, no order can be passed u/s 263 in the name of the amalgamating company. But, where the intention of the assessee is to defraud the Revenue by either filing returns, after amalgamation, in the old name or otherwise, then the order passed in the old name is valid.
Order passed u/s 263 on a non-working day does not become invalid, when the proceedings involving the participation of the assessee were completed on an earlier working day. Order u/s 263 cannot be declared as a nullity for the notice having not been signed by the CIT, when opportunity of hearing was otherwise given-by the CIT.
Refusal by the Revenue to accept the written submissions of the assessee sent after the conclusion of hearing cannot render the order void ab initio. At any rate, it is an irregularity. Search proceedings do not debar the CIT from revising order u/s passed u/s 147 of the Act. Appeal dismissed.
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2015 (8) TMI 1540
Appointment of a Local Commissioner to visit the premises of the defendants to seize the offending goods - HELD THAT:- The Local Commissioner shall visit the premises of the defendants, without prior notice to them, and make an inventory of all the impugned materials. He shall also take into custody the aforesaid materials, which shall be sealed and returned to the defendants on superdari with a direction to produce them before this Court as and when directed - The Local Commissioner shall be entitled to take the assistance of the representatives of the plaintiffs and seek police aid if deemed necessary, to execute the commission. The SHO of the area concerned shall render all necessary assistance to the Local Commissioner in the execution of the commission, if such a request is made in that regard.
The application is disposed of.
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2015 (8) TMI 1539
Disallowance of job charges @ 10% - Non rejection of books of accounts - HELD THAT:- Addition has been made only on estimated basis by the AO and the ld. AO disallowed 20% of the job charges and the ld. CIT(A) restricted the same to 10% of the job charges is totally unwarranted as the entire books of account and vouchers were duly produced by the assessee during the course of assessment proceedings. Without rejection of the books of account, the action of the ld. AO as well as the CIT(A) in sustaining the addition on an estimated basis is arbitrary and unwarranted. Hence no hesitation to delete the said addition made in the sum of ₹ 9,000/- being 10% of the job charges. Hence, this ground of appeal is allowed.
Disallowance of administrative expenses - HELD THAT:- Addition has been made only on estimated basis by the AO and the ld. AO disallowed 20% of the administrative expenses and the ld. CIT(A) upholding the action of AO is totally unwarranted as the entire books of account and vouchers were duly produced by the assessee during the course of assessment proceedings. Without rejection of the books of account, the action of the ld. AO as well as the ld. CIT(A) erred in sustaining the addition on an estimated basis is arbitrary and unwarranted.
Addition being professional fees received by the assessee from I.C.I.C.I. Prudential Life Insurance Corporation Ltd.- HELD THAT:- As seen from the materials available on record that ICICI Prudential Life Insurance Corporation Ltd had cut a cheque on 21.03.2008 and tax was duly deducted on the same which is mentioned in the TDS certificate of the assessee and in consonance with the mercantile method of accounting followed by the assessee, the assessee ought to have disclosed this receipt as income in A.Y.2008-09. Hence the action of the assessee in not disclosing the same is not appreciated. However, it is also seen that the assessee has offered the same in A.Y.2009-10 on receipt basis - hereby direct the ld. AO to withdraw that income in A.Y.2009-10 together with TDS thereon to meet the ends of justice and in order to avoid double taxation of the same receipt. Accordingly, this ground of appeal is dismissed subjected to the directions contained herein above
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2015 (8) TMI 1538
Revision u/s 263 by CIT - Incorrect calculation of capital gain/loss - FMV determination - valuation of sold property as on 1.4.1981 taken - apparent discrepancy and lack of proper investigations during the assessment proceedings - lack or enquiry v/s inadequate enquiry - HELD THAT:- Assessee has not only disclosed the way it had made calculation of capital loss, it had also enclosed all the corroborative evidences together with the return of income - AO had raised a specific query which the assessee had duly replied. In view of this, it cannot be said that the AO has not applied his mind as alleged by CIT that he has not made proper investigation during the assessment proceedings. Assessing Officer was fully aware of the whole matter.
Even after passing of the assessment order, he has issued notice under section 133(6) of the Act and also the notice under section 154 of the Act, which were duly replied by the assessee. Even the notice under section 154 of the Act mentions the facts which have been stated in the notice under section 263 of the Act issued by the learned Commissioner of Income Tax later on. In view of these evidences, it cannot be said that this is a case of lack of enquiry/investigation.
On the appraisal of the said plethora of evidences, if the Assessing Officer takes a view which is not in consonance with the view of the learned Commissioner of Income Tax, it cannot give the learned Commissioner of Income Tax the jurisdiction under section 263 of the Act. This is certainly not a case of lack of enquiry, at most, it may be a case of inadequate enquiry, which also to our mind, in the facts and circumstances of the case, does not seem correct.
There was some mistake in the Valuation Report of Registered Valuer, which the assessee enclosed with the return of income, also does not advance the case of the Department. It is a case in which on the basis of evidences filed by the assessee, the Assessing Officer forms an opinion and then makes the assessment. There is nothing illegal in this. There is no law which says that the Valuation Report has to be drawn in a certain specific fashion. The valuation is an art and any Valuation Officer who is registered by the Government to make such kind of valuation can make his own basis for valuing the property. In the present case, the Valuation has been done by a Registered Valuer, which the Assessing Officer has perused and formed an opinion. No specific procedure has been prescribed under the Statute as to how the Assessing Officer has to react in such situation.
As per the assessee, the value taken is in accordance with the report of the Registered Valuer, which the Assessing Officer accepted while the learned Commissioner of Income Tax wanted to substitute the same to the value of some other property purchased by the assessee itself a few months later - Assessing Officer being an Adjudicating Officer has to form an opinion on the basis of evidences, which he has duly done. If the learned Commissioner of Income Tax on the same set of evidence draws different opinion, it being a question of fact, does not give him jurisdiction to revise the same under section 263 - Decided in favour of assessee.
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2015 (8) TMI 1537
Revision u/s 263 by CIT - delayed contribution of employees contribution to P.F. - HELD THAT:- As contributions are not deposited as prescribed under the P.F. Act., but the payments are made before the due date of furnishing the return under section 139(1) as required by law under section 43B. Therefore, we are of the opinion that the case on hand is squarely covered by the decision of Essae Teraoka P. Ltd. [2014 (3) TMI 386 - KARNATAKA HIGH COURT] and also case of Imerys Ceramics (India) P. Ltd [2012 (7) TMI 699 - ITAT, HYDERABAD]Respectfully following the above decisions, we are of the opinion that the assessment order is not erroneous and prejudicial to the interests of the Revenue in so far as allowing of deduction of employees contribution to P.F. is concerned. Accordingly, we set aside the order passed by the Pr. CIT-II under section 263 and restore that of the Assessing Officer. Appeal of the assessee is allowed.
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2015 (8) TMI 1536
Enhancement by Ld. CIT(A) - no notice required u/s 251(2) was given by the Ld. CIT(A) to the assessee for enhancement - HELD THAT:- We find force in the submission of Ld. DR of the Revenue that in the present case, there is no enhancement by Ld. CIT(A) in respect of disallowance of interest and salaries paid to partners because the same was not allowed by the AO also and therefore, there was no requirement to issue notice u/s 251(2) of the Act by Ld. CIT(A). Therefore, Ground No.1 (a) of the assessee.
Allowability of deduction in respect of interest and salary paid by the assessee firm to its partners - HELD THAT:- As in the assessment order, it is observed by the AO that no bills/vouchers and books of account or any other supporting vouchers have been produced before him and therefore, he had no option but to estimate the income to the best of his judgment. He has invoked the provision of Section 144 of the Act although not specifically stated in the assessment order. As per sub section (5) of section 184, where there is on the part of firm any such failure as mentioned in section 144, the firm shall be assessed without allowing deduction of any payment of interest and salary etc. to any partner of the firm in computing the income chargeable under the head business income. Hence, in the facts of the present case, Section 184(5) of the Act is applicable and as a consequence, deduction on account of interest and salary payment to partners is not allowable. Hence, on this issue, we do not find any reason to interfere in the order of the Ld. CIT(A). Accordingly, Ground No. 1 and 2 are rejected.
Fresh capital introduced by the new partners who have joined the firm in the present case - HELD THAT:- CIT(A) also confirmed these additions on this basis that during the assessment proceedings or appellate proceedings, the assessee did not furnish their addresses PAN or their confirmation. In view of these facts that acknowledgement of filing income tax return/intimation in respect of four new partners out of six new partners is available in paper book, we feel it proper that this matter should go back to the file of the AO for fresh decision.
Credit of TDS - HELD THAT:- There is no mention in the assessment order for allowing lesser amount of credit for TDS. Hence, we feel that on this issue also, the matter should go back to the file of the AO for fresh decision.
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