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Showing 41 to 60 of 1760 Records
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2015 (9) TMI 1730
Dishonor of Cheque - stay on proceeding by forming opinion that the cases under Section 420 I.P.C and Section 138 of the Negotiable Instruments Act - Section 300(1) of the Code of Criminal Procedure - HELD THAT:- The attractability of Section 300 Cr.P.C. was negatived. The facts in the present case are almost similar to the case stated in Sangeetaben Mahendrabhai Patel [2012 (4) TMI 728 - SUPREME COURT], it has been held that Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant.
The attractability of Section 300 Cr.P.C. was negatived. The facts in the present case are almost similar to the case stated in Sangeetaben Mahendrabhai Patel.
The learned Magistrate before whom both the cases are pending, are directed to proceed in accordance with law - appeal disposed off.
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2015 (9) TMI 1729
Addition u/s 68 - Unexplained cash credits - HELD THAT:- We agree with the contention of DR that in view of the peculiar facts of the assessee’s case the decision in the case of Orissa Corporation (P) Ltd (1986 (3) TMI 3 - SUPREME COURT] may not be applicable and recording of the statement of the creditor is essential so as to ascertain whose money was actually deposited in the bank account of the creditor, whether it was unaccounted cash of the assessee or it was the cash in hand of the creditor. Therefore, we set aside the orders of the authorities below and restore the matter back to the file of the AO - We direct the assessee to produce all the 11 creditors before the AO. AO will record their statements and will also consider the explanation/evidences as may be furnished by them and thereafter readjudicate the issue in accordance with law.
Addition of cash credit - Allowance/disallowance of interest would be consequential to the acceptance or otherwise of the cash credit. We, therefore, set aside the orders of the authorities below on this point also and restore the matter back to the file of the Assessing Officer to be re-adjudicated along with the issue of addition for cash credit.
Addition of 20% disallowance out of telephone expenditure - HELD THAT:- Assessee is a partnership firm. The personal use of telephone by the partners cannot be ruled out. However, we deem it proper to reduce the disallowance to ⅙ (one sixth) as against 20% made by the Assessing Officer.
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2015 (9) TMI 1728
Dishonor of Cheque - discharge of existing liability or not - acquittal of accused - there are no endorsement on the postal department on the A.D. cards - evidence of service of notice - HELD THAT:- It is true that the statement made under Section 313 Cr.P.C. is not evidence. It is only the stand of the accused or version by way of explanation when incriminating materials appearing against him are brought to his notice as decided by the Apex Court in Devender Kumar Singla [2004 (2) TMI 705 - SUPREME COURT]. In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C.
Whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant? - HELD THAT:- This court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals.
This court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed.
Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,81,000/- to be paid to the present appellant. Such compensation must be paid within one month from this day - the accused respondent must surrender before the learned trial court to serve out the sentence within 30 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court.
Appeal allowed.
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2015 (9) TMI 1727
Denial of exemption u/s 11 - whether activities of appellant would quality to be charitable activity as under sec 2(15)? - HC held the factual correctness of which is undisputed, we can only endorse the view taken by the statutory authorities that in view of the proviso to Section 2(15), the activities of the assessee do not qualify to be charitable purpose as defined therein - AO was justified in disallowing the exemption claimed and assessing to tax the income of the assessee and the appellate authorities were justified in confirming the same - HELD THAT:- Heard the learned counsel for the petitioner and perused the relevant material.
We do not find any legal and valid ground for interference. The special leave petitions are dismissed.
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2015 (9) TMI 1726
Assessment in the name of company amalgamated - Amalgamation of two companies - Assessment to be made on which entity ? - HELD THAT:- In view of the order passed [2015 (7) TMI 1400 - DELHI HIGH COURT] these appeals are dismissed.
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2015 (9) TMI 1725
Unexplained jewellery - search and seizure operation - assessee was not being able to reconcile item-wise jewellery which were found at the time of search vis-à-vis the wealth tax and purchases made during the financial year by assessee - HELD THAT:- We are in agreement with the findings of Ld. CIT(A) that items of jewellery are often subjected to remaking on account of changing fashion and designs. In Indian society, the yellow metal and diamond has assumed lot of significance for ladies which is a status symbol and they buy it or convert the jewellery as per the prevailing fashion. There has no gainsaying that fashion keeps on changing and, accordingly, the jewellery is re-modeled from time to time according to the prevailing fashion. Under the facts and circumstances, comparison with the items of jewellery found at the time of search with wealth tax return, which were filed much earlier was putting an onerous task on assessee to prove something impossible, and assessee cannot be as bed to prove something which is beyond its control. We, accordingly, confirm the order of Ld. CIT(A) and this issue of Revenue’s appeals are dismissed.
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2015 (9) TMI 1724
Valuation of service tax - real estate agent service - value of the land is not includible in the assessable value for the purpose of computing the service tax or not - HELD THAT:- The AA has in the order dated 30th September 2013 come to the conclusion, on an analysis of the three MOUs entered into between the Appellant and SI, that the Appellant was working as an agent for SICCL and further that it had rendered two kinds of taxable services: one as a real estate agent/real estate consultant under Section 65 (89) of the FA and the other relating to levelling of soil including filling of gorges/nallah, removing of shrubs, grass and rubbish etc. classifiable under the head 'site formation and clearance excavation and earth moving and demolition services', as defined under Section 65 (97a) of the FA.
The Court is of the view that the Appellant has made out a prima facie case on the aspect whether the entire amount received by it pursuant to the MoUs would be considered to be the 'gross value' for the purposes of computation of service tax liability. Indeed it appears that the AA agreed with the Appellant that the entire sum received by the Appellant for purchase of land could not form the basis for computation of the service tax - It further prima facie appears that the AA overlooked the fact that even as per the SCN no land in Kurukshetra was purchased although the Appellant received money for that purpose. The Appellant's explanation that it returned the said sum to SICCL in the form of shares in 13 of its group companies does not appear to have been considered.
The Court is satisfied that the Appellant has made out a prima facie case and that the balance of convenience at this stage in making a conditional order of pre-deposit is in favour of the Appellant.
Although the Court is not expressing any opinion on the contention of the Appellant that no taxable service has been rendered by it, and that in any event the entire profit earned by it cannot constitute the value of such services, the Court, for the purposes of determining the reasonable amount of pre-deposit to be made by the Appellant, takes note of the fact that the Appellant has after making a loss of ₹ 34,25,435 in regard to the purchase of land at Sriganganagar and a profit of ₹ 4,75,45,069 in respect of the purchase of land at Vadodara, earned a net profit of ₹ 4,41,19,634. If the service tax demand is computed at 10% of the said sum it would work out to ₹ 44,11,963.
The appeal and application are disposed of.
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2015 (9) TMI 1723
Revision u/s 263 - Claim of exemption u/s.80-IB(11A) for Conversion charges AND Income from mango Trade - HELD THAT:- The company is eligible for exemption u/s 801B(11a) of the IT Act for the profit on contract conversion and profit on mango purchased and Sold without physical delivery to contract conversion customers. The above activity is involved processing, preservation and packing of fruits.
On perusing the letter, we find that it is not acknowledged by the Revenue for having received the letter and at the same time there is no dated mentioned in the letter. However, since the Ld.CIT has passed a cryptic order without any reasoning, we are of the considered view that the matter requires to be remitted back to the file of the Ld.CIT in order to pass a reasoned order after giving opportunity to the assessee of being heard. He shall also look into the detailed letter filed by the assessee before us which is supposed to have been filed before the Ld. CIT (A) on the earlier occasion while deciding the issue. Appeal of assessee is allowed for statistical purposes.
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2015 (9) TMI 1722
Dishonor of Cheque - compromise has been arrived between the parties and compromise deed has been placed on record - HELD THAT:- In the present case, petitioners are facing criminal proceedings qua commission of offence punishable under Section 174-A IPC. It is the case of the petitioners that they had not received the summons qua the criminal complaint under Section 138 of the Act pending against them. The moment petitioners came to know about the same, they have paid the cheque amount in question to the complainant and they have been discharged in the complaint under Section 138 of the Act.
Since in the main case, petitioners have been ordered to be discharged in view of compromise effected between the parties, continuation of criminal proceedings against the petitioners under Section 174-A, IPC would be nothing but an abuse of process of law - Petition allowed.
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2015 (9) TMI 1721
Dishonor of cheque - insufficiency of funds - there was existing liability or not - rebuttal of presumption - preponderance of probability - HELD THAT:- The relationship between the parties was that of cousin brother and naturally the story of advancement of friendly loan to the tune of ₹ 19,000/- cannot be ruled out. This Court on scrutiny of the evidence of this D.W. 1 is not in favour of coming to this conclusion that presumption which the complainant was having under Section 139 was rightly rebutted. It is true that the presumption under Section 139 of the N.I. Act was not that heavy like that of on the prosecution in a criminal trial but it is preponderance of probabilities which is commonly used in civil cases.
The respondent did not discharge the initial liability on him in such a case by stopping the payment of the cheque or intimating the matter to the police and naturally these two lapses will cost him much.
In view of the discussion so long made and keeping in mind the legal position involved, evidence both oral and documentary, this Court is satisfied that the learned trial Court erred in coming to the conclusion that there was no existing liability on the part of the present respondent. This Court reiterates that the cheque was issued in discharge of existing liability which remained unpaid which is definitely covered under Section 138 of the N.I. Act. This cheque was issued on 26.03.2008. i.e., before more than seven years from today and naturally the complainant has suffered both mentally and financially due to the act on the part of the present accused respondent. This act on the part of the accused must be well compensated. Thus, this Court is satisfied that the complainant appellant duly proved the charge against the accused under Section 138 of the N.I Act.
Appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1720
Revision u/s 263 by CIT - period of limitation - disallowance of interest u/s 36(1)(iii) - application of gross profit rate of 24.57% on the turnover of the assessee after rejecting the books of account of the assessee under section 145(3) - HELD THAT:- It is not in dispute that the original assessment order in this case was passed on 26/12/2008 and the same dealt with application of gross profit rate of 24.57% on the turnover of the assessee after rejecting the books of account of the assessee under section 145(3). It is also not in dispute that reassessment proceedings were initiated for making disallowance of interest under section 36(1)(iii) - also not in dispute that the proceeding under section 263 were initiated for applying the GP rate of 24.57%, on a turnover shown in the audited balance sheet filed to the bank as against the GP rate applied by the AO on a turnover shown in the audited balance sheet filed alongwith return of income.
It is evident from the above that the error related to application of G.P. rate and had crept in the order passed u/s 143(3) on 26/12/2008.The order passed u/s 147 had nothing to do with this issue. Therefore the order u/s 143(3) would subsist and would not merge with the order u/s 147.
The limitation for the passing of order under section 263 was to be taken into consideration from the date of passing of order u/s 143(3) i.e. 26/12/2008. The limitation in the present case therefore expired on 31/03/2011. The impugned order under section 263 having been passed on 22/03/2013 it is well beyond the period of limitation. In view of the same we hold that the impugned order is barred by limitation. Accordingly the order of the Ld. CIT u/s 263 is vacated. - Decided in favour of assessee.
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2015 (9) TMI 1719
Addition on account of investment written off - HELD THAT:- Notice is confined to issue A.
Addition on account of notional interest income - HELD THAT:- Issue covered in favour of the Assessee by the judgment of this Court in CIT v. Oriental Insurance Company Ltd. [2002 (9) TMI 44 - DELHI HIGH COURT]. Consequently, no question is framed.
Disallowance u/s 14A - disallowance on account of guest house expenses - HELD THAT:- Issues stands covered by the order of the ITAT in the Assessee’s own case for AYs 2000-01 and 2001-02 which has not been appealed against by the Revenue. Consequently, the Court declines to frame the said questions as well.
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2015 (9) TMI 1718
Dividend income as exempt u/s.10 (34) - dividend income is considered as part of Income of the life Insurance Business and is included as an income by actuary - HELD THAT:- We find that the impugned order of the ITAT has allowed the respondent-assessee's appeal by following the decision of this Court in General Insurance Corporation of India vs. Deputy Commissioner of Income Tax & anr [2011 (12) TMI 70 - BOMBAY HIGH COURT] and its own decision in the case of ICICI Prudential Insurance [2012 (11) TMI 13 - ITAT MUMBAI]
Revenue very fairly states that the revenue's appeal on this issue from the order of ITAT in ICICI Prudential Insurance Co.Ltd (supra) to this Court [2015 (7) TMI 972 - BOMBAY HIGH COURT] in view of the above, question (A) does not raise any substantial question of law and accordingly dismissed.
Whether negative reserve has an impact of reducing the taxable surplus as per Form-I and therefore, corresponding adjustment for negative reserve need to be made to arrive at taxable surplus? - HELD THAT:- The issue stands covered in favour of the respondent-assessee by the decision of the Apex Court in LIC of India [1963 (12) TMI 5 - SUPREME COURT] wherein it has inter alia been held that the Assessing Officer had no power to modify its accounts after Actuarial valuation is done. Accordingly, question (B) also does not give rise to any substantial question of law. Hence, dismissed.
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2015 (9) TMI 1717
Assessment of trust - “Principle of mutuality" - amount had received as non-occupancy charges by the society from members and not from the occupants - “principle of mutuality‟ to the non-occupancy charges received by the cooperative housing society - HELD THAT:- Similar issue was adjudicated by the Tribunal in the assessee‟s own case for the AY 2003-2004 - After hearing both the parties and on perusal of the said order of the Tribunal (supra), find vide paras 17 and 18, the assessee was given relief on account of non-occupancy charges received by the assessee in that AY 2003-04. Considering the commonality of the issue and binding nature of the coordinate Bench decision, ground no.1 raised by the Revenue is dismissed and to that extent the order of the CIT (A) is fair and reasonable and it does not call for any interference.
“Principle of mutuality" to the interest amount received from the bank on the FDs - HELD THAT:- Heard both the parties and perused the orders of the Revenue Authorities as well as the cited judgment of the Hon‟ble Supreme Court in the case of Bangalore Club [2013 (1) TMI 343 - SUPREME COURT] - On perusal of the said judgment of the Apex Court, we find that the said judgment is relevant in this regard, wherein it was held that “The principle of mutuality relates to the notion that a person cannot make a profit from himself. The concept of mutuality has been extended to defined groups of people who contribute to a common fund, controlled by the group, for a common benefit. Any amount surplus to that needed to pursue the common purpose is said to be simply an increase of the common fund and as such neither considered income nor taxable”. Applying the above ratio to the factual matrix of the present case, there is no dispute on the fact of receiving interest from the “Bank of India‟ and the said “bank is not a member of the club’, so that the “principle of mutuality‟ does not apply. Therefore, considering the same, the decision taken by the CIT (A) in this regard requires to be reversed - Ground no.2 raised by the Revenue is allowed.
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2015 (9) TMI 1716
Deduction u/s 80 P (2) (a) (i) - AO denied deduction as activity of the respondent was covered by Section 2 (24 (vii a) of the IT Act, which requires the inclusion of profits and gains of any business of banking (including providing credit facilities) carried on by a co- operative society - Whether the benefit of deduction, under Section 80 P (2) (a) (i) of the IT Act, could be denied to the assessee on the footing that, though the respondent was said to be a Co- operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act.? - whether Authorities under the IT Act were competent and possessed the jurisdiction to resolve the controversy as to whether the assessee was a co-operative society or co-operative bank, as defined under the provisions of the BR Act? - HELD THAT:- We are in respectful agreement with the general view taken as to the interpretation of the relevant provisions of law, by the co-ordinate bench of this court, in the above and several other judgments adopting the same view. However, it is to be noticed that there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act. Any opinion expressed therefore is tentative and is not final. The view expressed by this court, however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) of the IT Act, shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India. - Decided in favour of assessee.
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2015 (9) TMI 1715
Withdrawal of an admission made, by a defendant in a suit for partition, in the written statement after a pretty long period - HELD THAT:- The principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible Under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions.
The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected - However in the facts and circumstances of the case, the Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement - appeal allowed in part.
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2015 (9) TMI 1714
Seeking grant of anticipatory bail - transfer of investments made or not - offences under Sections 406, 420 and 120B of the Indian Penal Code read with Section 5 of the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 - HELD THAT:- Since the application for convening a meeting of the debenture holders for considering a scheme of arrangement was filed on 19.9.2013 and also since the police registered the first information report on 21.10.2013, the Company Court, even while ordering the convening of the meeting, granted protective orders preventing the police from arresting the petitioner herein, with the object of seeing as to whether the debenture holders were with the petitioner herein or not. Eventually, the report of the Chairman of the meeting of the debenture holders indicated that more than 93% of the debenture holders supported the scheme of arrangement - A group of debenture holders also filed objections. After considering those objections, the Company Court passed an order dated 30.4.2014 in C.P.No.15 of 2014 sanctioning the scheme of arrangement.
All other accused (except the petitioner herein) were granted bail (or anticipatory bail in the case of one) on account of the fundamental fact that the petitioner herein is the kingpin. Both in the scheme of arrangement in C.P.No.15 of 2014 as well as before the Criminal Court, the petitioner herein has made an unequivocal statement that he alone is responsible for repayment of the dues to the debenture holders. Therefore, the case of the petitioner herein cannot be treated on the same footing as the case of the other accused, who were let off on bail (anticipatory bail).
The Scheme sanctioned by this Court in C.P.No.15 of 2014 is also not working out as per the time schedule - Petition dismissed.
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2015 (9) TMI 1713
Deduction u/s 11 – violation of section 13(1)(d) - interest free loan to another society - HELD THAT:- Considering the fact that the issue raised in these appeals is already considered by the Delhi High Court in the case of Director of Income-Tax (Exemption) v. Acme Educational Society, [2010 (7) TMI 159 - DELHI HIGH COURT] and another decision of Division Bench of our High Court in the case of Commissioner of Income-tax, Bhopal v. Maa Vaishnav Education Society, [2013 (7) TMI 225 - MADHYA PRADESH HIGH COURT], both the appeals are disposed of on the same terms.
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2015 (9) TMI 1712
Expenditure incurred on account of non-compete fee paid to sellers of bottling business - revenue or capital expenditure - depreciation on the non-compete fee expenditure - Whether expenditure incurred towards ice boxes and dealer sign boards provided to hawkers/ dealers, carrying the brand name of the appellant, was capital in nature? - HELD THAT:- Appeal admitted for substantial question of law. Liberty is granted to the parties to file all the relevant documents which form part of the record of the case before the Assessing Officer, the CIT (A) and ITAT.
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2015 (9) TMI 1711
Summon Order as additional accused to face trial in FIR, even if not named in FIR - HELD THAT:- The complainant - Tara Chand while appearing as PW-1 has mentioned the names of the petitioners, who have caused injuries to his son Sonu with kick and fist blows. He has stated that Sonu was in love with Suman and the accused Rajender, Ram Piari, Ravi, Ravinder and Suman did not like this. Thus, there are specific allegations against the petitioners not only in the FIR but in the statement of the complainant as well.
In the case of HARDEEP SINGH, MANJIT PAL SINGH, BABUBHAI BHIMABHAI BOKHIRIA, RAJENDRA SHARMA, RAVINDER KUMAR, TEJ PAL, JUNED PAHALWAN, RAJESH @ SANJAI, RAMDHAN MALI, TEJ SINGH VERSUS STATE OF PUNJAB, STATE OF GUJARAT, STATE OF M.P., STATE OF HARYANA, STATE OF U.P., STATE OF RAJASTHAN. [2014 (1) TMI 1878 - SUPREME COURT], Hon'ble Supreme Court has held that a person can be summoned, as an additional accused, even if he is not named in the FIR or if named in the FIR but not chargesheeted or even if he has been discharged.
The trial Court while taking into consideration the evidence on record, has rightly summoned the petitioners as additional accused, to face trial along with other co-accused - The present petition, being devoid of any merit, is dismissed.
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