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Showing 41 to 60 of 1281 Records
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2014 (9) TMI 1248 - MADRAS HIGH COURT
Dishonor of Cheque - partial discharge of debt made or not - offences under sections 420 and 406 of IPC - HELD THAT:- The documents produced herein can be looked into, only for the limited purpose in support of the petitioners' case that the petitioners paid nearly ₹ 72 lakhs under the mortgage discharge receipt and sale deeds in favour of the second respondent defacto complainant and another ₹ 28 lakhs by way of deposits in the bank. Though the defacto complainant has not produced any document before this court in support of his theory that borrowal of ₹ 38,00,000/- by A1 along with A2 to A4 and execution of consent and confirmation letters by either A1 or A2 to A4 etc, the documents produced herein would reveal that there was money transaction between the second respondent and the first petitioner and the first petitioner has made cash payment and executed sale deed in respect of his property towards partial discharge of the same.
It is nobody's case that the defacto complainant was induced to part with money by any false representation made by the petitioners. The very conduct on the part of the first petitioner in repaying the amount and executing sale deed in respect of his property towards partial discharge of the amount, as per the allegations raised in the complaint, would go to show that there is no criminal intention for committing any act of cheating from the inception. The petitioners have also admittedly issued cheque for ₹ 25 lakhs on 16.10.2012 towards partial discharge of their liability. The allegation raised herein that the defacto complainant did not present the cheque for encashment as requested by the accused till the expiry of the cheque period, without being obtained fresh cheque leaf, appears to be, in the light of the earlier conduct of the parties, invented for the purpose of this case and is lacking in bonafide.
Considering the nature of the transactions between the parties and subsequent conduct of the parties, this Court is of the firm view that the allegations raised in the FIR would disclose that the dispute between the parties is more of civil in nature and there is no fraudulent or dishonest intention on the part of the petitioners to attract the offences under sections 420 and 406 IPC - this Court is of the opinion that no case is made out against the petitioners herein to attract the offence under section 506(ii) IPC. Such case put forth on the side of the complainant involving married daughters and unmarried daughter whose marriage was fixed to be held in December 2013, also appears to be improbable in nature.
Petition allowed.
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2014 (9) TMI 1247 - MADRAS HIGH COURT
Validity of revised order of assessment passed - respondent concluded that there was no reply from the dealer - violation of principles of natural justice - HELD THAT:- Once it is found that what was sought by the petitioner was different from what was furnished to them, the petitioner cannot be found fault for not filing a full-fledged reply. Hence, the petitioner deserves one more opportunity.
The matter is remitted back to the respondent for a fresh consideration - Petition is allowed by way of remand.
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2014 (9) TMI 1246 - CALCUTTA HIGH COURT
Refusal of an exparte ad interim injunction - bonafide members of the petitioner society who had been unfairly expelled from the society - HELD THAT:- The order impugned suffers from the malaise that merely because the appeal may become infructuous upon an ad interim injunction being declined, the Court perceives to be obliged to pass an order.
Since the assumption of jurisdiction by the Appellate Court without considering the grounds on which the Trial Court declined the ad interim injunction appears to be irregular and improper, the order impugned dated September 16, 2014 is set aside and the appeal disposed of. The parties should immediately inform the Appellate Court so that it can record the disposal of appeal.
The Trial Court is now requested to ensure that the plaintiffs' injunction application is taken up and disposed of within a period of one month after the reopening of the Court following the Puja Vacation - application disposed off.
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2014 (9) TMI 1245 - ALLAHABAD HIGH COURT
Inter se dispute between the direct recruits and promotees in the cadre of Assistant Consolidation Officer - it has been argued by the appellants' counsel that the direct recruits are entitled to be placed over and above the promotees since they were appointed earlier than the promotees, i.e. in the month of August, 1997 - HELD THAT:- Sub Rule (3) of Rule 8 of 1991 Seniority Rules should be construed in such a manner which may not make the rule inoperative. Further external aid from 1992 Service Rules may be taken while interpreting 1991 Seniority Rules for removal of ambiguity and doubt, if any - the provisions contained in Sub Rule (3) of Rule 8 should be construed harmoniously to make it effective after taking into account the other rules as well as the purpose and object of the rule.
Since selection and promotion has not been done in a single process, seniority may be considered as observed hereinabove keeping in view the year of recruitment.
The impugned order passed by learned Single Judge does not seem to suffer from any impropriety or illegality subject to modification that keeping in view the Service Rules in question, rota should be applied by the authorities of direct recruits and promotees appointed in one recruitment year - Appeal allowed in part.
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2014 (9) TMI 1244 - ITAT AHMEDABAD
Deduction u/s.80IB(10) - legal relationship between the assessee and the end user of units was that of “work contract” - HELD THAT:- The undisputed facts in the present case are that the assessee-form sold the plots to various persons and after the sale is complete the assessee constructed residential tenements thereon. It is also not disputed that two separate agreements were executed by the assessee-firm. The case of the assessee is that it has developed the housing project and it has borne all risks and reward arising therefrom. Merely because the land was sold and the houses were constructed would not debar the assessee from claiming the deduction u/s.80IB(10) of the Act in view of the judgement of Hon’ble Jurisdictional High Court rendered in the case of CIT vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT].
Also decided in M/S. SATSANG DEVELOPERS VERSUS ACIT, CIRCLE-2(2), BARODA [2014 (5) TMI 184 - ITAT AHMEDABAD] assessee was entitled to the benefit u/s 80-IB (10) even where the title of the lands had not passed on to the assessee and in some cases, the development permissions may also have been obtained in the name of the original land owner - ownership of land is not a necessary condition for claiming the deduction u/s 80IB(10) - Assessee has acquired dominant control over the land, Assessee is responsible for incurring all the expenses and taking all the risks involved - Assessee is not a contractor - Decided in favour of assessee.
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2014 (9) TMI 1243 - ITAT BANGALORE
Deduction u/s. 80P(2)(a)(i) - assessee is a co-operative society and engaged in banking business also - HELD THAT:- As decided in the case of ACIT, Circle 3(1), Bangalore v. M/s. Bangalore Commercial Transport Credit Cooperative Society Ltd. in [2011 (4) TMI 1222 - ITAT BANGALORE] wherein this Tribunal held that section 80P(4) is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application in the assessee’s case and therefore, it is entitled to deduction u/s 80P(2)(a)(i).
Also in the case of CIT vs. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha [2015 (1) TMI 821 - KARNATAKA HIGH COURT] wherein it was held that where the status of the assessee is a co-operative society, also carrying on the business of lending money for providing credit facilities to its members and not a co-operative bank, the assessee is entitled to the grant of exemption u/s 80P(2)(a)(i) - Decided against revenue.
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2014 (9) TMI 1242 - KERALA HIGH COURT
Levy of penal demurrage charges - period from 2nd May 2011 to 31st July, 2011 - rate Circular No. 74 of 2005 as modified by the rate Circular dated 17.01.2008 including the consequential orders - Whether investment of the powers of the Central Government under the Railway Act, 1890 to the Railway Board by notifications issued under the Railway Board Act comes to an end after the enactment of Act 1989? - Whether the Railway Board can exercise powers of the Central Government after enactment of Act 1989 without there being any further investment of power of Act 1989 by the Central Government? - Whether the Railway Board can exercise the powers of the Central Government and the rate Circular, Ext. P11 issued by the Railway Board can be treated to be the rate Circular issued by the Central Government? - HELD THAT:- Rate Circular which has been signed by the Joint Director Traffic Commercial (Rates), Railway Board is an order merely authenticating the order of the Central Government according to the prescribed procedure. The order is professed to have been issued by the Government of India, Ministry of Railways which was entitled in law to transact the business of Railway. The petitioners in their reply affidavit while replying paragraph 4 of the counter affidavit quoted above has only reiterated that the Railway Board has no authority or jurisdiction to issue orders of the Government of India, Ministry of Railways. The rate Circular having been expressed in the name of the Government of India, Ministry of Railways, Railway Board we have no reason to not take the Circular as it is described as rates issued by the Government of India, Ministry of Railways.
The rate Circular, Ext. P11 issued is to be treated as the Circular issued by the Central Government and cannot be held to be beyond jurisdiction of Sec. 30 or violative of Sec. 30 of Act 1989.
Whether the Central Government in exercise of the powers under Sec. 30 of Act 1989 as a delegatee of the power to fix the rate can further delegate the power to fix rate to any other authority, i.e. including the CCM, COM and DRM? - Whether the rate Circular, Ext. P11 sub delegates the power to fix the rate of demurrage charge on CCM, COM and DRM? - HELD THAT:- The powers in the rate circular given to CCM, COM and DRM are not sub-delegation of any power of fixing rate, rather rate circular provides for conditions for implementing the rates fixed by the Central Government - CCM, COM and DRM as authorised under paragraph 3.3 are thus only statutory authorities, which have been indicated in the delegated legislation, i.e., rate circular who are to implement the rate circular as per the conditions therein. Thus, the power given to the above authorities is a statutory power to be exercised on conditions as enumerated in rate circular and is not sub-delegation of any of legislative power of the Central Government under Section 30 of the Act, 1989 - there are no substance in the submission of learned counsel for the writ petitioners that there is sub-delegation of legislative power in favour of CCM, COM and DRM.
Whether the rate Circular Ext. P11 cannot be enforced having not been published in the Gazette of India or by any other accepted mode? - HELD THAT:- The rate circular was issued in 2005 and the demurrage, according to the rate circular, was being paid and it was only when penal demurrage charges were imposed by the Railway authorities, challenge was laid in the Writ Petition. Various notices issued by Station Master and Goods Superintendents, where Exhibits P4 to P10 were under challenge, where three times and six times of normal demurrage rates were levied.
Whether due to the provisions of the Kerala Head Load Workers Act restricting the right of employer in a scheme covered area to engage only registered head load workers the Railway Administration cannot demand penal demurrage charges from the petitioners? - HELD THAT:- The rate circular is uniformly applicable to entire country and making an exception for the State of Kerala in penal demurrage charges has rightly been held not to be acceptable - in the event of consignee, on account of any reason beyond his control, had suffered penal demurrage charges, he is at liberty to move an application for waiver - the submission of writ petitioners that on account of operation of Headload Workers Act in the State of Kerala, penal demurrage charges should not be imposed, cannot be accepted.
Whether increased demurrage charges are not leviable to be charged due to lack of amenities in the various Railway Goods Sheds? - HELD THAT:- The contention of appellant's counsel is that due to lack of amenities, loading and unloading workers of the writ petitioners are unable to perform their duties efficiently and it is incumbent on the authorities to provide for amenities. The learned Single Judge has gone into the said submission and after noticing the pleadings made on behalf of the Railways, had found that on the basis of said submission the challenge to penal demurrage charges cannot be upheld - the respondents have pleaded that amenities have been provided for - the challenge to rate circular cannot be upheld.
Whether levy of increased/penal charges have been made by Station Masters, Goods Shed Superintendents and other Officers of the Railway Administration and the notices Exts. P4 to P10 are illegal and unenforceable? - HELD THAT:- The learned Judge perused the records and was fully satisfied that the order for imposing penal demurrage charges was passed by the designated authority as specified in Exhibit P11. It was held that Exhibits P4 to P10 were consequential proceedings passed pursuant to the orders passed by DRM - there are no good ground to have any different view with regard to above submission.
The writ petitioners are permitted to make an application for waiver before the Station Manager/Goods Supervisor within 30 (thirty) days from today giving all details along with reasons and relevant records as necessary - Station Master/Goods Supervisor shall forward the application for waiver of demurrage charges to the Divisional Officer with his remark within 15 (fifteen) days of receipt of the application - appeal disposed off.
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2014 (9) TMI 1241 - ITAT KOLKATA
Reopening of assessment u/s 147 - assessee argued that time for issuance of notice u/s 143(2) of the Act was very much available at the time of initiation of re-assessment proceedings for the reason that validly filed return of income is pending assessment and proceedings have not been terminated or come to an end - HELD THAT:- As relevant assessment year involved is 2005-06 and assessee has filed its return of income for A.Yr.2005-06 on 06.10.2005 within the time prescribed u/s 139(1) of the Act. The AO issued notice u/s 148 of the Act dated 24.07.2006. Admittedly there is time left for issuance of notice u/s 143(2) of the Act i.e. 12 months from the date of filing of return of income and in the present case the return was filed on 06.10.2005 and notice u/s 143(2) of the Act can be issued by the Revenue upto 31.10.2006.
We find that the issue is fully covered by the decision of CIT vs Qatalys Software Technologies Ltd [2008 (7) TMI 240 - MADRAS HIGH COURT] as held no action could be initiated under section 147 of the Act, when there is a pendency of the return before the Assessing Officer. The reasons given by the Tribunal are based on valid materials and evidence and we do not find any error or illegality in the order of the Tribunal so as to warrant interference - Decided in favour of assessee.
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2014 (9) TMI 1240 - ITAT KOLKATA
Disallowance of provision of non-performing assets - HELD THAT:- After hearing the rival submissions, we noted that this issue is no more resintegra in view of the decision of Hon’ble Suprme Court in the case of Southern Technologies Ltd [2010 (1) TMI 5 - SUPREME COURT] wherein held in view of the Explanation which keeps such a provision outside the scope of “written off” bad debt,section 37 cannot come in. If an item falls under sections 30 to 36, but is excluded by the Explanation to section 36(1)(vii) then section 37 cannot come in. Section 37 applies only to items which do not fall in sections 30 to 36. If a provision for doubtful debt is expressly excluded from section 36(1)(vii) then such a provision cannot claim deduction under section 37 of the Income-tax Act even on the basis of “real income theory” as explained above.
We therefore confirm the order of the CIT(A) sustaining the disallowance for provision for non-performing assets.
Addition in the computation of the book profit u/s 115JB - Merely the reserve has to be created under a separate statute, it cannot be converted into a provision for ascertained liabilities. Under sub-clause c of explanation 1 to section 115JB(2), the amount / amounts set aside to provisions made for meeting liabilities, other than the ascertained liabilities are also to be added for computing the book profit. No doubt the provisions made for ascertained liabilities has not to be added. The ld. A.R even though vehemently contended that the reserve has to be created as per the provision of RBI Act but could not convince us against what ascertained liability it has been created.
The reserve created as per the RBI in our opinion cannot be converted into a provision unless it is proved it is against a liability. The reserve is always created in order to meet future exigencies. This reserve in our opinion cannot be regarded to have been created against a particular liability. We therefore do not find any illegality or infirmity in the order of the CIT(A) in sustaining the addition u/s 115JB. Thus this ground stands dismissed.
Addition while computing the book profit u/s 115JB being the amount transferred to Debenture Redemption Reserve - HELD THAT:- The amount so transferred therefore cannot be regarded to be the reserve or provision made for meeting the liabilities other than ascertain liabilities. Our aforesaid view is duly supported by the decision of Mumbai High Court in the case of CIT vs Raymond Ltd, [2012 (4) TMI 127 - BOMBAY HIGH COURT] No contrary decision taken by any other High Court was brought to our knowledge by the ld. D.R. The decision of Rayon Corporation vs CIT, [1997 (7) TMI 113 - SUPREME COURT] rather support the case of the assessee that it is a provision for a known liability. We therefore, set aside the order of the CIT(A) on this issue and allow the ground no.3 taken by the assessee.
Provision for NPA added in the computation of book profit - This issue in our opinion is to be decided in favour of the revenue in view of clause (i) inserted to explanation 1 to section 115JB(2) by the Finance Act, 2009 w.e.f. 1.4.2001. Therefore, after hearing the rival submissions and carefully considering the same the addition made by the assessing officer has to be sustained. The provision for NPA account is created for diminution in the value of the asset. This fact cannot be denied. The ld. A.R even though vehemently contended but could not convince us how the provision so made does not represent diminution in the value of the assets. We therefore, dismiss this ground.
Levy of the interest u/s 234B and 234C - HELD THAT:- The interest u/s 234B and 234C is leviable even though automatic only when the liability to pay the advance tax u/s 208, 209 or 210 arise. This addition could have not been subject to advance tax at the time when the liability to pay the advance tax arise. The impugned assessment year is assessment 2008-09 and therefore due to the retrospective amendment in our opinion interest u/s 234B and 234C cannot be imposed due to the non-addition of ₹ 3,66,00,000/- in the book profit of the assessee while estimating the liability for advance tax. To that extent, we set aside the order of the CIT(A) and direct the assessing officer not to include provision for NPA for the purpose of calculation of the interest u/s 234B and 234C. Thus this ground is partly allowed.
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2014 (9) TMI 1239 - TELANGANA HIGH COURT
Validity of Arbitral Award - of the property for construction of child and maternity hospital - it is contended by the petitioner as well as the learned counsel for the third respondent that by playing fraud on the Lok Adalat and by impersonation, the Award was passed and therefore it is liable to be set aside - whether the impugned Award passed by the Lok Adalat is an 'Award' within the meaning of Section 21 of the Legal Services Authorities Act, 1987? - HELD THAT:- From the material on record, it is clear that the petitioner was not the Secretary of the third respondent society as on the date of settlement in the Lok Adalat i.e. on 29.09.2011. The reason for his giving resignation has been clearly stated by him and the resolution of the Society has been accepted by the Commissioner of Collegiate Education, Andhra Pradesh, Hyderabad. Except disputing about the documents and the resolutions passed by the society, nothing has been brought to our notice that the resolutions passed by the society and the proceedings issued by the Commissioner of Collegiate Education are brought into existence for the purpose of this case.
Section 24 of the Andhra Pradesh Education Act, 1982 deals with appointment and removal of manager of private institution. Sub-section (1) of Section 24 of the Act, 1982 provides that the management of every private institution shall be constituted in such manner and shall consist of such number of members as may be prescribed. It is not in dispute that the third respondent is running educational institutions. Sub-section (2) of Section 24 provides that the management shall, for the purposes of this Act, nominate a person to manage the affairs of the institution, whether called by the name of secretary, correspondent or by any other name, and intimate such nomination within 30 days thereof to the competent authority - Under Section 114(e) of the Indian Evidence Act, 1872, the Court may presume that judicial and official acts have been regularly performed, unless contrary is proved. When the party proved the fact that judicial or official act has been, in effect, done or performed, then the presumption would come to the aid of the party to the effect that the said act was performed in accordance with law. As seen from the counter affidavit filed by the respondents, there is no specific denial with regard to this document by raising a ground that it was fake or fabricated document. Therefore, the said document can be acted upon.
Settlement is an act of deciding the dispute between the parties to the suit. An agreement is an arrangement or understanding between two or more persons, to avoid the law suit, amicably settle their differences on such terms as they can agree upon. In other words, it is an adjustment between the parties to a dispute ending in a settlement. There is no source of legal power in writing given to the Secretary of the third respondent society to do an act or to enter into settlement or compromise - any act done by such person cannot be said to be legal or proper and would not bind on the society. The society of third respondent is governed by the Rules and Regulations and they have to be acted upon. Any deviation in this regard would not have any effect on the rights and liabilities of the society.
When a statute, rule or regulation provides that an authority is conferred with certain liabilities or duties cast on him, they should be performed in accordance with the provisions of the statute, rule or regulation. It means a decision according to the principles of law applicable. When a statutory duty is conferred on the Lok Adalat, it has to exercise that duty in accordance with law especially when the Award passed by the Lok Adalat shall be come final and no appeal shall lie to any Court against the Award - The impugned Award is not signed by the parties to the appeal and therefore it is not binding on any one of the parties to the appeal.
Locus standi of the petitioner - HELD THAT:- The petitioner to dispel the cloud of legal action against him, he can file the Writ Petition in his individual capacity so as to challenge the Award especially when the Award does not contain that the settlement was arrived at for and on behalf of the society. Therefore, the petitioner is an aggrieved party and he can challenge the Award.
The impugned Award is liable to be set aside as it is not an 'Award' within the meaning of Section 21 of the Act, 1987 and the Regulations made thereunder - Petition allowed.
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2014 (9) TMI 1238 - ANDHRA PRADESH HIGH COURT
Seeking directions to permit the petitioner to leave the Country and for that to return the passport lying in deposit as one of the conditions of the bail order - petitioner wants to leave the Country on his business purposes - power of investigating officials to impound the passports - HELD THAT:- As per the Apex Courts guidelines in Mhetre's case [2010 (12) TMI 1085 - SUPREME COURT] as part of the conditions of the bail besides property title deeds required to be deposited including bank accounts and deposit of even the passport of accused before the learned Magistrate though there are expressions in Sure Nanda v. Central Bureau of Investigation [2008 (1) TMI 876 - SUPREME COURT] and in GIAN SINGH VERSUS STATE OF RAJASTHAN [1999 (5) TMI 629 - SUPREME COURT] saying that the investigating officials have no right of their own to impound the passport, but for the passport officials under the provisions of the Indian Passport Act, 1967.
Here, the impounding the passport by investigating officers is entirely different from seeking to deposit the passport by the Court as one of the conditions of the bail to see that the accused shall not jump the bail or form the clutches of the Justice by using or misusing the passport even there is a bar under Section 6(2)(f) of the Indian Passport Act, 1967 of any person who is accused of crime in India, passport cannot be obtained and travel beyond the country without prior permission and there is a circular of the Central Government in GSR 570E, dated 25.08.1993 as per Section 22 of the Passport Act issued by the Ministry of External Affairs in the public interest that by said notification exempting the citizens of India against whom criminal proceedings are pending in India without facing any hardship for their requirement to travel abroad, a permission of the concerned Magistrate, where the case is pending for travel abroad.
There is nothing to modify the condition imposed in the bail order passed by the learned Sessions Judge for return of passport but for a direction to the learned IV Additional Chief Metropolitan Magistrate, Hyderabad, before whom the passport is in deposit, in the event of the petitioners application as contemplated by the Circular instructions of the Union of India in GSR 570E dated 25.08.1993 relaxing and modifying to some extent, the bar under Section 6(2)(f) of the Indian Passport Act within its power under Section 22 of the Indian Passport Act to permit to have travel document pursuant to passport from the authorities concerned for integram period till end of December, 2014 - when the passport is required for such travel permit to return the passport subject to undertaking to re-deposit and subject to execution of a bond for ₹ 2,00,000/- with affidavit undertaking of re-deposit the passport and return back to India and on failure to forfeit the said bond amount as one of the modes of penalty contemplated by section 53(5) of Indian Penal Code.
The Criminal Petition is disposed of.
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2014 (9) TMI 1237 - ITAT
Lease rental income - treated as business income OR Income from house property - HELD THAT:- In the case of Shambhu Investments Ltd. [2003 (1) TMI 99 - SC ORDER] what was let out to the tenant is ‘table space’ and in such circumstance the Hon’ble Apex Court has held that it was a case of letting out the property.
In the case of Chennai Properties & Investments Ltd. [2003 (3) TMI 28 - MADRAS HIGH COURT] the assessee was owning two buildings and was receiving rental income from them. As rightly held by the CIT(Appeals), the cases relied on by the Revenue are not applicable to the facts of the present case.
In the present case, the assessee is running an industrial park as a business proposition with a lot of functional facilities necessary for the smooth working of the software, who are the tenants. As pointed out by the assessee, the IT parks are recognized for the purpose of deduction under sec.80IA and the statute itself has considered these types of ventures as a ‘business activity’. We agree that the Commissioner of Income-tax(Appeals) has arrived at a proper finding on this issue. The appeal filed by the Revenue is liable to be dismissed.
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2014 (9) TMI 1236 - SUPREME COURT
Dishonor of Cheque - Signing of power of Attorney holder - eligibility criteria prescribed by Section 142(a) of NI Act - verification of Power of Attorney holder on oath Under Section 200 of the Code - knowledge of the Power of Attorney holder in the impugned transaction - presumption of knowledge - proceedings contemplated Under Section 200 of the Code can be dispensed with in the light of Section 145 of the N.I. Act or not - HELD THAT:- This power of attorney in light of the statement made by the Appellant in the complaint that because she was not keeping good health and was unable to come to the court and because the whole transaction was within the knowledge of her husband, who is her power of attorney holder, her husband represented her. We have no reason to doubt the submission of learned Counsel for the Appellant that it was very much on record. In any case, the fact that this submission which is factual in nature was first time raised in the High Court casts a shadow of doubt on its truthfulness.
The complaint Under Section 138 of the NI Act can be filed through the power of attorney holder. In this case, Sudhir Gulvady is the power of attorney holder of the Appellant and he has filed the complaint on her behalf. The learned Magistrate recorded the statement of the power of attorney holder Under Section 200 of the Code on 5/3/2004 and issued summons - There can be no dispute about the fact that in this case, the power of attorney holder being the husband of the Appellant has witnessed all transactions and he possesses due knowledge about them.
While holding in favour of the Appellant that the complaint can be filed by a power of attorney holder and on that ground complaint cannot be held not maintainable and that the power of attorney was very much on record, the matter is remanded to the High Court with a request that the High Court should hear both sides and decide whether the cheques in question were issued as a security or for the purpose of repayment of legally recoverable debt.
Appeal allowed by way of remand.
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2014 (9) TMI 1235 - ITAT JAIPUR
Grant of registration u/s 80G denied - 12A certificate not submitted alongwith the application - assessee's application was defective and hence rejected for want of statutory compliance - HELD THAT:- CIT in last para itself has mentioned that assessee's 80G certificate was renewed upto 31-03-2003. This could not have been granted upto 31-03-2003 without a valid 12A certificate. We find merit in the arguments of the ld. Counsel for the assessee that if assessee 12A certificate is misplaced then in that case the certified copy is provided to the assessee on payment of requisite fee. Besides when the record of 80G registration is available with the Department upto 31-03-2003 then it will have the copy of 12A Certificate also.
Assessee contends that 12A certificate is granted without date of expiry. In this eventuality, the department has to verify its records and make the certified copy available to the assessee. The copy may be lying with earlier 80G registration. It is a trite law that if any application is found defective then the assessee should be given adequate opportunity to rectify the procedural defect. In consideration of the above, we are inclined to set aside the matter back to the ld. CIT to reconsider the same, trace 12A certificate granted to the assessee, provide a copy thereof in accordance with law and then decide the issue relating to 80G registration. Appeal of the assessee is allowed for statistical purposes .
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2014 (9) TMI 1234 - CESTAT, NEW DELHI
Condonation of delay of 262 days in filing of the appeal - HELD THAT:- The order dated 30th July, 2013 was admittedly received by the appellant on 04/08/13. The appellant admittedly is a proprietorship concern owned by Shri R.P. Pandhi. It is seen that the appellant took about 70 days time in handing over the case papers to their Consultant Shri Vinod Jain and when there was no response from the Consultant, for about one month, no alternate arrangement by engaging other Counsel was made - The Apex Court in another case of OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] has held that the law of limitation binds everybody including the Government and refused to condone 427 days delay in filing of the appeal by the Postal Department.
In this case for delay of about three months from 04/08/13 to end of October, 2013 there is absolutely no explanation as to why the appeal was not filed during this period. The conduct of the appellant indicates as if filing of appeal before the Tribunal was the last priority - the delay in filing of appeal is not condonable - Appeal dismissed.
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2014 (9) TMI 1233 - ITAT DELHI
Capital gain on sale of land - assessment in hands of HUF or assessee - Whether assessee received the consideration in individual capacity and not in HUF status? - HELD THAT:- We find that the ld CIT(A) has clearly made a finding that the land in question belong to the HUF and therefore tax on capital gain can be levied only on HUF and not the individual assessee. It has been brought to our notice by the ld AR that the capital gain in respect to the land in question has been brought to tax in the hands of HUF.
In the light of the aforesaid submission of the ld AR, it would be fair and reasonable to direct the AO to verify the said claim of the ld AR. And in case it is found that the HUF has been taxed for the capital gain on the land in question, then the AO shall delete the same levied on the individual assessee. Therefore we set-aside the order of the ld CIT(A) and remit the matter back to the file of the AO and direct him to verify whether the HUF has been taxed on the capital gain on the land in question, and if so, the addition made on the individual assessee’s need to be deleted. Appeals of the revenue is allowed for statistical purposes.
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2014 (9) TMI 1232 - CESTAT NEW DELHI
Maintainability of appeal - non-compliance with the requirement of the pre-deposit - HELD THAT:- It is noticed that Shree Nakoda Ispat Ltd. and Anant Dave have deposited the amounts directed by the order dated 22-1-2014 within the further time granted by the Supreme Court vide its order dated 13-8-2014. Shri Kailash Agarwal, appellant in Excise Appeal No. 56500/2013 has however not deposited the amount of Rs. One lakh as directed. No proof of deposit or report of compliance by this appellant is on record.
The appeal preferred by Shri Kailash Agarwal, commission agent is however rejected for failure of pre-deposit, under Section 35F of the Central Excise Act, 1944 - rest is allowed.
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2014 (9) TMI 1231 - KARNATAKA HIGH COURT
Maintainability of petition - Territorial Jurisdiction to entertain the petition - HELD THAT:- If the High Court has no territorial jurisdiction to entertain the petition, it has no jurisdiction to decide the case on merits also. It is well settled that the question of territorial jurisdiction should be decided at the threshold specially when the objections is taken at the earliest point of time.
When the question of jurisdiction was raised in the case of UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], the Supreme Court has held that they would decide the jurisdiction first and then only, they proceed to go into the question of merits under Order XIV Rule 2 of Civil Procedure Code.
It is a settled law that, if an objection regarding territorial jurisdiction of the Court is raised at the earliest point of time, the said issue being purely question of law ought to be decided as a preliminary issue. If it is found that the petitioner has approached the Court having jurisdiction, then only the Court can go into the merits. If the Court has no jurisdiction, the matter ends there. The approach of the learned Single Judge is not in accordance with law - Appeal allowed - decided in favor of appellant.
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2014 (9) TMI 1230 - ITAT MUMBAI
Appeal memo before the Ld. CIT(A) not verified by a competent person as defined u/s. 140 r.w.r. 45 of the Income Tax Rules - HELD THAT:- As carefully perused the contents of the affidavit. Undoubtedly under Rule 45(2), the form of appeal to Ld. CIT(A) is to be signed and verified by the person who is authorized to sign the return of income. However, u/s. 140(c) of the Act “ if for any unavoidable reason such Managing Director is not able to sign and verify the return, then the same can be signed any Director thereof”. As the Managing Director was travelling, the appeal memo was signed and verified by the Executive Director (Finance), the same is in accordance with law. We, therefore, do not find any merit in the additional ground taken by the Revenue and is dismissed accordingly.
Disallowance u/s. 14A - HELD THAT:- It is the claim of the assessee that the assessee has received dividend from Union Bank of India. The dividend was directly credited to the bank account of the assessee without any effort on the part of t he assessee and therefore the assessee has incurred Nil expenses for earning this dividend income. We find that this issue has been decided by the Hon’ble Bombay High Court in the case of Reliance Industries Ltd. [2009 (4) TMI 516 - BOMBAY HIGH COURT]. Considering all we direct the AO to delete the addition-. Ground No. 3 is accordingly allowed.
Disallowance on upgradation of application software - HELD THAT:- As carefully perused the orders of the authorities below. Hon’ble Madras High Court in the case of CIT Vs Sundaram Clayton Ltd. [2008 (6) TMI 327 - MADRAS HIGH COURT], following the decision in the case of Southern Roadways [2006 (10) TMI 82 - MADRAS HIGH COURT] has held that “upgradation of computers thereby enhancing the configuration of the computers for improving their efficiency, but without making any structural alterations is not change of an enduring nature. The expenditure incurred by the assessee had to be treated as revenue expenditure”. In the case in hand, it is the upgradation of software already installed for the smooth and efficient working therefore following the ratio laid down by the Hon’ble Madras High Court (supra), we direct the AO to delete the addition and allow the claim of upgradation of software as revenue expenditure. The AO is also directed to withdraw the depreciation allowed by him while treating the expenditure as capital expenditure. Ground No. 4 with its sub-grounds are accordingly allowed.
Disallowance of interest being attributable to capital work-in-progress - HELD THAT:- AO has gone by the presumption that the assessee must have utilized some part of the borrowed capital towards capital work-in-progress. A perusal of the balance sheet of the assessee shows that the assessee has generated cash to the tune of ₹ 34.50 crores as is evident from the cash flow statement appearing on 43 of the Annual statement of account. The total expenditure incurred towards capital work-in-progress is only ₹ 6.45 crores. This clearly show that the assessee was having sufficient own funds. We, therefore, do not find any merit in attributing the interest towards capital work-in-progress. We, accordingly direct the AO to delete the addition.
Nature of expenditure - Expenditure on on current repairs of buildings - revenue or capital expenditure - HELD THAT:- The object and purpose of every repair is to improve the bad condition of the building to prevent its further deterioration as far as possible and to keep it wind and water-tight. So long the repair does not bring into existence, an additional advantage or benefit of an enduring nature or change the nature, character or the identity of the building itself, the expenditure has to be considered as revenue expenditure.
A perusal of the detail shows that no structural alteration was made to the building and the assessee carried out only repairs which were absolutely necessary to preserve and maintain the building and to prevent its further deterioration. The plastering process may have extended the life of the building, it has not extended the original life of the building nor the original condition of the building. The quantum of expenditure by itself cannot be a determining factor for finding out an expenditure as revenue or capital. Considering the facts in totality, in our considered opinion, the expenditure incurred by the assessee have to be allowed as revenue expenditure, we, accordingly, direct the AO. However, the AO is directed to withdraw depreciation which was allowed by him while treating the expenditure as capital in nature
Deduction u/s. 10(B) - disallowance of Power and Fuel expenses - reallocating the expenditure and estimated the disallowance - HELD THAT:- We find that the assessee has filed complete details of unit-wise power consumption for every unit. The assessee has also filed complete month-wise consumption of power for every unit. This is also evident from the reply filed by the assessee during the course of the assessment proceedings which is exhibited hereinabove. The AO has not pointed out any defect in the independent records nor he has given any adverse findings in the details of the power consumption filed by the assessee. It is also not a case of the revenue that the assessee has shown exorbitant profit from the units which are eligible for deduction u/s. 10(B) of the Act. It is also not the case of the Revenue that there is a diversion of expenditure from exempt unit to taxable unit. The reallocation has been made purely on surmises and conjectures. The reallocation has been made on the basis of respective turnovers of eligible and non eligible units which, in our considered opinion, is unwarranted. We, accordingly set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition
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2014 (9) TMI 1229 - SUPREME COURT
Bail application - it is the case of the prosecution that the Purchase Committee which was headed by the petitioner purchased Iron Folic Acid tablets at ₹ 26 paise per tablet, which was available in the open market at ₹ 6 paise per tablet, which resulted in the loss of ₹ 11,07,692/- to the Government - HELD THAT:- Inasmuch as the similarly situated persons have been released on bail, we think that the petitioner shall also be released on bail. It is also necessary to note that the charge sheet is already filed in the case and the petitioner is in jail for about 11 months.
The petitioner Dr. Prem Prakash Verma is directed to be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the conditions imposed - SLP disposed off.
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