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Showing 401 to 420 of 1410 Records
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2020 (12) TMI 1013
Levy of Service Tax - Banking and other Financial Services - amounts/value charged by the foreign bankers while delivering their inward remittance in foreign currencies to the Indian Bankers of the Appellant - services received by the appellant from M/s Dada Consultancy and M/s Phara Dr. D.R. Ivan - demand under Scientific or Technical Consultancy Services - time limitation.
Banking and other Financial Services - amounts/value charged by the foreign bankers while delivering their inward remittance in foreign currencies to the Indian Bankers of the Appellant - HELD THAT:- The export sale proceeds from their overseas customers are collected by the Appellant’s Indian Banker. The Indian Banks, who collect the said amount for the appellant, in the process are required to pay certain charges to the foreign banks who transfer the funds to Indian Banks - following the principles laid down in GREENPLY INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I [2015 (12) TMI 80 - CESTAT NEW DELHI] and also in the case of M/S RAJ PETRO SPECIALITIES P LTD VERSUS C.C.E. & S.T. - SILVASA [2018 (8) TMI 1179 - CESTAT AHMEDABAD] in identical facts and circumstances, we do not find merit in confirming the Service Tax demand for the charges deducted by the foreign banks under the category of “Banking and other Financial Services”, where it was held that Any bank charges paid by Indian Bank to the Foreign Banks even though in connection with import and export of the goods and the same was debited to the appellant, the service tax liability does not lie on the appellant.
Scientific or Technical Consultancy Services - services received by the appellant from M/s Dada Consultancy and M/s Phara Dr. D.R. Ivan - HELD THAT:- The learned Commissioner in the impugned order, even though accepted that the overseas firms are providing consultancy services, which meant to be used in obtaining marketing right of the appellant to their manufactured pharmaceutical products, but proceeded to observe that the said consultancy of clinical and non-clinical overviews of the literature were scientific in nature, therefore, the consultancy service provided fall under the category of Scientific and Technical Consultancy Services - Tribunal in the case of M/S IPCA LABORATORIES LTD. VERSUS COMMISSIONER OF CE & ST, LTU, MUMBAI [2018 (5) TMI 34 - CESTAT MUMBAI] on similar circumstances held that when such services are provided for marketing of the product in the overseas market to meet the regulatory requirement, the same cannot fall under the category of Scientific or Technical Consultancy Services - the contention of Revenue that the consultancy charges paid to M/s DADA Consultancy and M/s Pharphe Dr. D.R. Iban be taxable under the category of ‘Scientific or Technical Consultancy Services’ is devoid of merit and cannot be sustained.
Extended period of limitation - HELD THAT:- The demand is barred by limitation as during the course of audit by the Department, specifically the issue of applicability of Service Tax for payments made to M/s DADA Consultancy and M/s Pharphe Dr. D.R. Iban have been examined by the Department to which the appellant filed a reply enclosing the opinion of legal experts on the subject - Also, it is not in dispute that the appellant has started discharging Service Tax on the said services w.e.f. 01.06.2007 under the category of ‘Management and Consultancy Services’ to which the Department did not raise any objection and the ST-3 returns have been assessed from time to time - there are merit in the contention of the learned Advocate that since they would be eligible to avail credit of the Service Tax paid on reverse charge mechanism, hence there could not be any incentive/intention to evade payment of Service Tax - the demand for the period 2006-07 is not sustainable being barred by limitation.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 1012
Renting of immovable property Service - Bundled services - Appellant had entered into agreements with films Distributors under which the theatrical exhibition rights for exhibition of the films were transferred to the Appellant, either for a specified number of shows and period or in perpetuity - HELD THAT:- The agreements entered into between the Appellant and the film Distributors clearly indicate that the film Distributors had granted theatrical exhibition rights to the Appellant and in return of transfer of such rights, the Appellant had agreed to pay certain amount to the Distributors, fixed generally as a percentage of Net Box Office Collection. The Principal Commissioner found that the Appellant had provided ‘renting of immovable property’ services. For an activity to fall under ‘renting of immovable property’ services, the nature of the activity should be that of renting or letting or leasing or licensing or other similar arrangements of immovable property, for use in the course or furtherance of business or commerce - A perusal of the agreements between the Appellant and the Distributors would also make it abundantly clear that it is the Appellant who makes payment to the Distributors for grant of theatrical rights. This clearly indicates the flow of service and the consideration. Thus, as it is the Appellant who pays a fixed consideration to the Distributor, no service tax can be levied on the Appellant - it is not possible to sustain the finding recorded by the Principal Commissioner that ‘renting of immovable property’ service had been rendered by the Appellant to the film distributors.
Renting of Immovable Property - amount received by the Appellant under ‘miscellaneous receipts’ and ‘license fee’ from Snack Bar - demand of service tax - HELD THAT:- The confirmation of demand of ₹ 36,000/- covered under “renting of immovable property” service is much below the threshold exemption of ₹ 10,00,000/- provided in the notification dated June 20, 2012 and hence not liable to service tax.
The income received by the Appellant under “Shots and Slides Hire” income is on account of exhibition of advertisement films and slides of vendors, during the showcasing of movies. This income is not taxable w.e.f July 1, 2012 as it covered under the negative list provided under section 66 D(g) of the Finance Act, which relates to “selling of space or time slots for advertisement, other than advertisement broadcast by radio or television. Even for the period prior to July 1, 2012, this service is in the nature of exhibiting shots/graphic films, still slides and cannot be classified as ‘renting of immovable property’ service - interest amount income shown by the Appellant in its books of account represents the income earned by the Appellant from the deposits held in bank account and is not towards the ‘renting of immovable property’ service.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 1011
Provisional attachment of Bank Accounts - Section 45 of the VAT Act, 2003 - HELD THAT:- Sub-clause (2) of the Section 45 of the VAT Act, 2003 makes it very clear that the provisional attachment would cease to have effect after the expiry of period of one year from the date of the order made under sub-section (1). It appears that no fresh order has been passed after the first order dated 15.06.2016 came to be passed. It is very unfortunate that the HDFC Bank also has not permitted the writ applicant to operate her account, despite the fact that the provisional attachment cannot be said to exist on this date.
This writ application succeeds and is hereby allowed.
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2020 (12) TMI 1010
Refund of DVAT - it appears that the petitioner is praying for refund of the DVAT for 4th quarter of the assessment year 2013 - period 01.01.2014 to 31.03.2014 - HELD THAT:- The respondents authorities are directed to decide the claim of refund of the petitioner in accordance with law, rules and regulations and in accordance with the provisions of the Delhi Value Added Tax Act, 2004 as expeditiously as possible and practicable.
Petition disposed off.
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2020 (12) TMI 1009
Principles of Natural Justice - Revision of assessment - revision on the ground that the petitioner has not furnished the certificates in the specified form with regard to the sales effected by them to Government Departments - further contention of the petitioner is that no sufficient opportunity was granted to them by the fourth respondent for production of the required certificates with regard to the sales effected by them to the Government Departments - change of opinion - HELD THAT:- This Court, after giving due consideration to the revision notice dated 31.12.2019 issued by the fourth respondent and the impugned assessment orders dated 28.08.2020 passed by the same fourth respondent, is of the considered view that, no sufficient opportunity has been granted to the petitioner to produce the required certificates, with regard to the sales effected by them to the Government Departments. If the same was intimated to the petitioner in the revision notice dated 31.12.2019 itself, the petitioner might have placed the required certificates before the fourth respondent during the assessment proceedings. However, without any request being made to the petitioner, arbitrarily, the fourth respondent has passed the impugned assessment orders, dated 28.08.2020 revising the assessment on the ground that the petitioner has not produced the required certificates for the sales effected to Government Departments, to enable them to avail concessional rate of tax.
The learned counsel before this Court on instructions has also submitted that the petitioner is willing to produce all the necessary certificates before the fourth respondent, if the matter is remanded back to the fourth respondent for fresh consideration.
This Court is of the considered view that the impugned assessment orders dated 28.08.2020 passed by the fourth respondent are arbitrary and the principles of natural justice has been violated by the fourth respondent while passing the impugned assessment orders - petition allowed by way of remand.
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2020 (12) TMI 1008
Dishonor of Cheque - appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instruments Act, 1881 - legally enforceable debt or liability or not - HELD THAT:- The findings of the learned Trial Court that the complainant has failed to prove the debt and the accused has substantiated his defence by preponderance of probability is totally illegal, perverse and not based on the evidence on record or the settled principles regarding appreciation of evidence.
The accused has failed to rebut statutory presumption in favour of complainant. The Trial Court has not appreciated the principles stated by the Hon'ble Supreme Court and this Court in the cases under Negotiable Instruments Act, particularly cheque bounce case. The Trial Court has failed to appreciate the burden of proof and drawing presumption. Only on untenable contentions and evidence, the Trial Court has acquitted the accused. Therefore, the judgment of the Trial Court is illegal, perverse and needs interference by this Court and liable to be set aside.
It is crystal clear that, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and he needs to be sentenced accordingly - The Section 138 of Negotiable Instruments Act, 1881 provides punishment both imprisonment which may extend two years or with fine which may extend to twice the amount of cheque, or with both.
The offences under Negotiable Instrument Act, are regulatory offences intend to give sanctity to the negotiable instruments. Keeping in mind the settled principles regarding imposition of sentence in cheque bounce case, the accused needs to be imposed the fine double the cheque amount. In this case the cheque amount is ₹ 9,80,000/-. The case of the year 2012. Now we are in the end of the year 2020. So, nearly eight years the case is pending. Therefore, the imposition of double the cheque amount as a fine is a proper sentence.
The Criminal Appeal filed under Section 378 (4) of Code of Criminal Procedure by the appellant / complainant is allowed.
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2020 (12) TMI 1007
Dishonor of Cheque - Funds Insufficient - specific defence was taken that the cheque was given to the brother of the complainant and the same was misused - HELD THAT:- No suggestion was made to P.W.1 that those two letters Exs.D.1 and 3 are served on him. But he categorically admits that Ex.D.1 was not sent through registered post and also admits that the cover was also not returned. But he claims that Ex.D.1 was sent to the office address of the complainant. He also admits that he has not given any reply through his counsel. It is also important to note that he categorically admits that he has not given any stop payment. The complainant disputes the documents Exs.D.1 to 3. When the accused admits the signature on Ex.P.1, he has to rebut the evidence of the complainant. It is also elicited from the mouth of D.W.1 that he has not given any letter to the bank and also not given any notice to Ashok, when he did not return the other cheque. Though he claims that he gave the complaint, he categorically admits that no endorsement was given by the police. It is also important to note that earlier also he had availed loan from Ashok, but while availing the loan earlier, he has not given any cheque to Ashok for security.
There is no dispute that the accused has to place the material of preponderance of probabilities. In the case on hand, I have already pointed out that though an attempt is made by the accused to place the preponderance of probabilities, those documents are not worthwhile to accept the defence and the evidence of D.W.2 is also not worthwhile. The Appellate Court while reversing the findings of the Trial Court has assigned the reasons that the handwriting available in Ex.P.1 are in different ink. P.W.1 in the cross-examination admits the same. But the fact that he has signed the cheque and handed over the same, has not been explained. D.Ws.1 and 2 in their cross- examination categorically admits that they went to the office of the complainant - If no transaction was taken place between them, what made them to go to the house or the office of the complainant, is not explained. On perusal of 313 statement of the accused also, nothing is stated with regard to availing of loan from the brother of the complainant and handing over the cheques to Ashok.
The defence in the cross-examination got elicited that loan was given on 05.10.2006 and though in the complaint and legal notice, the complainant has not stated the date of loan transaction, the answers elicited from the mouth of P.W.1 is clear that loan was given on 05.10.2006. P.W.1 categorically says that in the early morning, the accused and his brother came to his office and took the money. The accused did not dispute the signature found on Ex.P.1 and notice issued against him. Though he claims that he gave reply in terms of Exs.D.1 and 3, the same cannot be accepted - The judgment of the Hon'ble Apex Court in the case of RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], is clear that if the accused has not given any reply to the notice and not disputed the signature found in Ex.P.1, the Court must draw the presumption under Section 139 of the N.I. Act. Hence, the very contention of the accused counsel cannot be accepted.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 1006
Dishonor of Cheque - funds insufficient - rebuttal of presumption - acquittal of the accused - Section 118 and Section 139 of Negotiable Instrument Act - HELD THAT:- The accused contended that cheque in question was a post dated cheque issued for security purposes. Which means accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant as per KISHAN RAO VERSUS SHANKARGOUDA [2018 (7) TMI 101 - SUPREME COURT] and RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT]. As accused failed to substantiate his contention by cogent evidence, it has to be held that he failed to rebut presumption in favour of complainant.
The reasons assigned by the trial Court firstly that complainant has failed to prove passing of consideration amount to accused for issuing cheque. The trial court observed that no man of ordinary prudence would lend huge amount of rupees two lakhs, without obtaining any document for security of said amount. The said reason is ex-facie perverse. When there is no dispute about signature on cheque and its issuance, the complainant is entitled for presumption about the same being issued towards discharge of existing debt, and therefore, the complainant is not required by law to prove the said fact. Further, it is the complainant's case that the money was lent against receipt of cheque in question, which was a post dated cheque.
The impugned judgment passed by trial Court is set aside, accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act, 1881 - appeal allowed - decided in favor of appellant.
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2020 (12) TMI 1005
Dishonor of Cheque - acquittal of the accused - maintainability of complaint filed by a power of attorney without making specific assertion about his knowledge about transaction with accused - HELD THAT:- From a perusal of examination-in-chief of PW1, it is seen that deponent has clearly averred that he is working as Assistant Manager of complainant- company and knows facts of the case. During cross- examination, there are no elicitations or admissions that deponent is not aware of transactions between complainant and accused.
In this case, accused contended that cheque in question was a post dated cheque issued for security purposes only. Which means that accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant as per KISHAN RAO VERSUS SHANKARGOUDA [2018 (7) TMI 101 - SUPREME COURT] and RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT]. As accused failed to substantiate his contention by cogent evidence, it has to be held that he failed to rebut presumption in favour of complainant.
The accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act, 1881 - Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 1004
Dishonor of cheque - petitioners are said to have misused the cheques representing that the said cheques belong to the account of Kiran @ Kirankumar and those cheques were issued to the 2nd respondent herein by the present petitioners - HELD THAT:- The charge sheet, which are almost identical in both the cases would go to show that the Investigating Officer during the course of investigation is said to have recorded statements of some of the material witnesses. Among them, the more pertinent and material witness is CW4 - Shashikant Dharmanna Mopagar. According to the complainant, the place of offence is said to be the office of the said CW4, who claims himself to be the bond writer. He is shown to have given his statement before the police, wherein he shown to have stated that, on the alleged date of incident, all the three petitioners/accused came to his office and the complainant was also there, where the accused are claimed to have received the loan amount from the complainant. He has stated that, for the said transaction as a bond writer, he was requested by the petitioners to prepare documentation in the form of two promissory notes.
As such, when the Investigating Officer is said to have collected certain materials to proceed against all the three accused in the charge sheets for the alleged offences, I do not consider that it is a fit case where the Court can interfere by exercising its power under Section 482 Cr.P.C - Petition dismissed.
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2020 (12) TMI 1003
Dishonor of Cheque - funds insufficient - acquittal of accused - rebuttal of presumption - Whether the Trial Court has committed an error in acquitting the accused? - HELD THAT:- It is clear that though P.W.1 was examined in the month of March 2009, the complainant had not appeared before the Magistrate. Hence, taken as 'no cross'. Subsequently, an application was filed and the same was considered by the Trial Court and passed an order on 29.05.2010. In spite of the Magistrate being lenient in considering the application filed under Section 311 of Cr.P.C, again the complainant did not choose to appear before the Magistrate. However, an opportunity was given till October 2010. No application was filed to recall the earlier order and the Magistrate proceeded to pass an order on merits and acquitted the accused.
The main contention of the learned counsel for the complainant is that the Magistrate ought to have dismissed the complaint for non-prosecution ought not to have proceeded to pass an order. The fact that P.W.1 has been examined before the Trial Court is not in dispute and documents-Exs.P1 to P8 are also marked - On perusal of the order sheet, it shows that the trial Judge has taken as 'no cross' when P.W.1 did not appear before the Trial Court and there is no order for expunging the evidence of P.W.1 and the same is only the submission made by the learned counsel for the accused before the Trial Court that the evidence was expunged. In spite of sufficient opportunity was given to the complainant for about two years, the complainant did not make any efforts to recall the earlier order and even though once the order was recalled and again, an opportunity was given, she did not appear before the Trial Court.
The Trial Court proceeded to pass an order since the evidence of P.W.1 remains but only not rendered for cross- examination. The matter has not been decided on merits and the complainant has filed the complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. When the matter is not decided on merits, the reason assigned by the complainant is also that her son due to fall he has sustained the injuries and she was taking care of her son.
This Court can set aside the order and remand the matter for fresh consideration and to decide the matter on merits - Appeal allowed by way of remand.
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2020 (12) TMI 1002
Dishonor of Cheque - discharge of the legally enforceable liability - Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- The complainant in support of her cases, she examined herself as PW.1 and got marked the documents as Exs.P1 to P5. The accused did not choose to lead any defense evidence rebutting the evidence of the complainant. Before re-appreciating the material available on record both oral and documentary evidence, firstly, this Court would like to consider the evidence of the complainant, who has been examined as PW.1.
No explanation on the part of the complainant regarding what made the accused to demand her to return those cheques if the amount has not been paid. It is also important to note that PW.1 categorically admits that when the amount of ₹ 2,04,000/- was lent to the accused and not collected either the cheques or any documents and this transaction is the only one transaction without any document of cheque or any documentary proof for lending the money also cannot be accepted and the same is also un-natural - This Court has already held that the case of the complainant can be rebutted by two modes i.e., by effective cross-examination and also entering into the witness box. Though, the accused did not choose to enter into the witness box and in the cross-examination of PW.1 effectively cross-examined with regard to creating a doubt with regard to lending money to the tune of ₹ 2,04,000/-.
There are no grounds to interfere with the findings of the Trial Court and there is no material to reverse the finding of the Trial Court - appeal dismissed.
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2020 (12) TMI 1001
Maintainability of appeal - appeal was dismissed for not paying process fee - whether this is legal and proper or not - HELD THAT:- The First Appellate Court had admitted the appeal for hearing. In such cases, Section 385 of Cr.P.C., requires that the appeal shall be disposed of by notifying the date of hearing. Since in this case the appellant was the convicted accused, if his advocate failed to appear, the trial Court should have secured the presence of the appellant by following due process of law and proceeded with the appeal. Therefore, the impugned order of dismissal of the appeal is contrary to Section 385 of Cr.P.C., and unsustainable.
Learned counsel for the complainant submits that the complainant is fighting a litigation since 2012. Therefore, if at all the matter is to be remanded, the complainant may be permitted to withdraw the amount deposited by the accused and time may be fixed for disposal of the appeal.The matter is remanded to the First Appellate Court for fresh consideration - Appeal allowed by way of remand.
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2020 (12) TMI 1000
Dishonor of Cheque - insufficiency of funds - difference between a "firm" and a proprietary concern - HELD THAT:- In this case, A1 M/s.Varshini Traders is a Proprietorship concern, A2 N.Jai Ganeshen is the Proprietor of A1 and A3 is the wife of A2. A proprietary concern is not a firm. A firm is a partnership concern consisting of partners. In this case, the first accused is not a firm. It is only a proprietary concern. Only the drawer of the cheque can be prosecuted. In this case, the drawer of the cheques is A2 - Further, there is a basic and fundamental difference between a "firm" and a proprietary concern. The first accused is only a Proprietary concern, its proprietor being A2 N.Jai Ganeshen. A1 and A2 are one and the same person. The issuance of the cheque by A2 as Proprietor of A1 M/s.Varshini Traders would amount to issuance of the cheque by A2.
The complaint of the respondent is not maintainable against A3. On the ground that A1 and A2 are same persons and that A1 is not a "firm" as per Section 141 of the Negotiable Instruments Act - Petition allowed.
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2020 (12) TMI 999
Dishonor of Cheque - accused not paid the cheque amounts within 15 days from the date of receipt of the notice and thereby, committed the offence under Section 138 r/w 141, 142 of the Negotiable Instruments Act, 1881 - petitioner submitted that the petitioner is A3, since being a Director of A1 company and wife of A2, she is roped in this case as accused and she is not incharge of the management and affairs of A1 company - HELD THAT:- It is not in dispute that the petitioner/A3 is the Director of A1 company. In order to discharge the liability, the said two cheques were issued to the respondent, which were returned in the Bank viz., HSBC Bank, Rajaji Salai, Chennai and the same were returned as 'Payment Stopped by Drawer' - On an overall reading of the complaint, it is seen from the complaint that except the bald averments that the the petitioner/A3 was in charge of and responsible to A1 company at the relevant point of time, nothing has been stated as to what part was played and how she was responsible regarding the issuance of cheque.
This Court finds that there is no factual averments to show how the petitioner is responsible for the business and conduct of A1 company to invoke provision under Section 141 of the Negotiable Instruments Act. Admittedly, the petitioner is not a signatory to the cheque in issue.
Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 998
Dishonor of Cheque - Insufficient Funds - case of appellant is that the alleged cheques were never issued by the petitioner for any legally enforcible debt - Sections 138 and 142 of NI Act - HELD THAT:- The petitioner is an accused on the complaint lodged by the respondent herein for the offences punishable under Sections 138 and 142 of NI Act. According to the respondent, the petitioner borrowed a sum of ₹ 3 lakhs and towards repayment of the same, the petitioner issued two cheques for a sum of ₹ 1.5 lakhs each. Both the cheques were presented for collection and initially both the cheques were returned for the reason "Insufficient Funds". Again on the instruction given by the petitioner, the cheques were presented for collection and again and it was dishonored for the reason that "Code-5:Kindly contact Drawer/Drawee Bank". After issuing statutory notice, the respondent initiated proceedings for the offence under Sections 138 and 142 of NI Act.
On receipt of the statutory notice dated 21.03.2019, the petitioner issued reply notices on 03.04.2019 and 05.04.2019. In the reply notice, she stated that the respondent's father, who was practicing advocate at Pondicherry, is well acquainted with the husband of the petitioner herein. Therefore, in the year 2008, the petitioner borrowed a sum of ₹ 5 lakhs by mortgaging her property to the respondent's father for monthly interest. Thereafter on 12.03.2009 the entire loan amount was discharged by the petitioner with interest. The respondent's father also issued receipt for discharging the entire loan amount - After discharging the loan amount, the respondent's father also issued acknowledgment that entire loan amount settled by the petitioner. Thereafter the respondent's father failed to return the two cheques, which were received from the petitioner as security.
It is also evident from the endorsement made by the respondent's bank while returning the cheques, it is mentioned as "Code- 5:Kindly contact Drawer/Drawee Bank". Since the alleged cheques are non-CTS cheques and as such, it cannot be cleared by the banker as per the Reserve Bank of India guidelines from 01.01.2019 onwards. It is also evident from the letter issued by the petitioner's banker dated 21.02.2020, stating that the cheques were issued to the petitioner herein on 06.06.2008. Now, after a period of 11 years the cheques were presented for collection and both the cheques were returned dishonored and directed the respondent to contact Drawer/Drawee Bank.
The offence under Section 138 of the Negotiable Instruments Act is attracted for whatever reason the cheques are returned. In the case on hand, other circumstances are proved that the impugned cheques were issued by the petitioner for security purpose while borrowing the loan, in the year 2008. Therefore, the impugned complaint is nothing but clear abuse of process of Court and it cannot be sustained as against the petitioner - Petition allowed.
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2020 (12) TMI 997
Permission to allow the petitioners', their employees / representatives to have presence of their Advocate at a visible but not audible distance during the course of interrogation and / or recording of their statement - petitioners are apprehensive that coercive attempts may be made to extort confession from them - HELD THAT:- This Court, in light of the order passed by Hon'ble Supreme Court from time to time, as in similar circumstances the apex Court directed that the advocate of the petitioner should be allowed to be present during the interrogation of the petitioner, is of the opinion that the advocate of the petitioners are to be allowed to be present during the interrogation of the petitioners. It is further clarified that he/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation.
Petition allowed in part.
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2020 (12) TMI 996
Condonation of delay - Validity of order of Settlement Commission - full and true disclosure or not - additional income offered during section 245D(4) - HELD THAT:- As there is delay of 214 days in filing the Special Leave Petitions and the explanation offered in support of the prayer for condonation is far from being satisfactory, we refuse to condone delay. Consequently, the SLPs stand dismissed on the ground of delay.
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2020 (12) TMI 995
Rectification u/s 254 - Period of limitation - HELD THAT:- In the present case, the order was passed on September 09, 2018, and the copy of order was admittedly served upon the assessee on December 05, 2018. Tribunal should have excluded the time period between September 09, 2018, to December 05, 2018, in computing the period of limitation.Tribunal was wrong in not applying the exclusion period in computing the period of limitation and rejecting the application being barred by limitation.
If Section 254(2) is read with Sections 254(3) and 268 of the Act and no hardship or unreasonableness can be found in the scheme of the Act. The Court need not make a violence to the words of Section 254(2) by substituting the word within “the end of the month in which the order was passed” by the word “the date on which the order was served”. Such interpretation is absolutely uncalled for when the application has been served upon an assessee in terms of Section 254(3) of the Act.
Since it is not necessary to interpret Section 254(2) differently to avoid hardship or absurdity or uncertainty, the judgment in D. Saibaba case has no applicability to the present case.
The controversy with regard to whether pronouncement of a judgment in open court amounts to communication of the order is much ado about nothing since the order complained of in this case was served upon the assessee in terms of Section 254(3) of the Act.
The appeal is, accordingly, allowed. The Tribunal below is directed to hear out the application under Section 254(2) taken out by the assessee on merit.
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2020 (12) TMI 994
Characterization of interest income from the partnership firm as business income - Presumptive income @8% u/s 44AD - Interest and salary received by the assessee from firms in which he was a partner - Tribunal held that only remuneration and salary, received from a firm, to the extent of eligible under clause (b) of Section 40 of the Act, would be considered as profits and gains of business or profession of the recipient partner? - HELD THAT:- As already seen in Section 44AD, the words used are 'total turnover' or 'gross receipts' and it pre-supposes that it pertains to a sales turnover and no other meaning can be given to the said words and if done so, the purpose of introducing Section 44AD would stand defeated. That apart, the position becomes much clearer if we take note of sub-Section (2) of Section 44AD which states that any deduction allowable under the provision of Section 30 to 38 for the purpose of sub-section (1) be deemed to have been already given full effect to and no further deduction under those sections shall be allowed. Thus, conspicuously section 28(v) has not been included in sub-section (2) of Section 44AD which deals with any interest, salary, bonus, commission or remuneration by whatever name called, due to or received by, a partner of a firm from such firm.
We find that the Tribunal rightly rejected the plea raised by the assessee and confirmed the order passed by the CIT(A) and the Assessing Officer.
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9911796707
