Deduction u/s 54F - as observed that the assessee claimed that the entire sale consideration was deposited in the Nationalized Bank as well as in capital gain account however, no documentary evidence was submitted to the AO - as contended by the assessee that since the investment is made before the due date of filing of return under section 139(4) of the Act and also before the date of filing of return on 21.02.2013, the assessee is eligible for deduction u/s 54B & 54F even if he has not deposited the amount in capital gain account - HELD THAT:- The Coordinate Bench of the Tribunal while deciding the identical issue in the case of Nand Lal Sharma [2015 (6) TMI 482 - ITAT JAIPUR] as relying on ASHOK KAPASIAWALA VERSUS THE ITO WARD-7 (1) , SURAT [2015 (10) TMI 2045 - ITAT AHMEDABAD] ,ASHOK KAPASIAWALA VERSUS THE ITO WARD-7 (1) , SURAT [2015 (10) TMI 2045 - ITAT AHMEDABAD], SMT. VRINDA P. ISSAC [2012 (8) TMI 608 - KARNATAKA HIGH COURT] as decided in favour of assessee.
Reopening of assessment u/s 147 - addition of credit to the current account of the Assessee in the partnership firm - AO noticed that the partnership firm M/S.Salarpuria Soft Zone, of which the assessee company was a partner, had revalued its assets during the year ended with 31.3.2008 and transferred the Revaluation profit to its partners’ current account in their respective profit or loss sharing ratio - CIT-A deleted the addition by quashing reopening notice - HELD THAT:- On a careful perusal of the order of the learned CIT(Appeals), we do not find any legal infirmity or illegality in his order to interfere. Findings of the learned CIT(Appeals) are impeccable, and are in accordance with the law laid down by the Hon’ble Apex Court in Sanjeev Woolen Mills v. CIT, [2005 (11) TMI 26 - SUPREME COURT]. The ratio of decision in the case of M/s. Orchid Griha Nirman Pvt. Ltd. [2016 (11) TMI 247 - ITAT KOLKATA] is applicable to the facts of this case on all fours, inasmuch as the facts of both the cases emanate from the same transaction. We, therefore, while respectfully following the established judicial reasoning referred to above, hold that the facts of the case do not warrant any interference with the impugned order of the learned CIT(Appeals) on the aspect of proceedings under section 147 of the Act, and accordingly, uphold the same. Ground No 1 of the Revenue stands dismissed.
Dishonor of cheque - insufficiency of funds - rebuttal of presumption - existence of debt/liability or not - HELD THAT:- It is a settled position of law that the presumption under section 139 of the N.I. Act postulates that whenever a cheque or negotiable instrument is issued in favour of the other side, then the Court can presume that it was issued in discharge of existing liability. It is true that there is no presumption as to the existence of debt or liability and it is to be proved by the complainant before the floor of the Court.
This Court on scrutiny of the evidence on record both oral and documentary, considering the judgment of the Trial Court and the First Appellate Court and also the agreement advanced is satisfied that the approach of the First Appellate Court to reverse the order of conviction was not in conformity with the legal position as decided by this Court in NITA KANOI VERSUS PARIDHI AND ORS. [2015 (1) TMI 1471 - CALCUTTA HIGH COURT]. This Court is not willing to answer the point as to whether the interest or damages claimed was usurious as it was not a point either before the Trial Court or before the First Appellate Court.
Assessment u/s 153C - proof of seized documents as belonging to assessee - HELD THAT:- From the material seized, though there was a reference to the name of the assessee-firm, equally there are names of other parties on the same documents. There is nothing to indicate that these documents were disclaimed by NKG in whose case search was conducted. The AO has not referred to any material to indicate that the assessee is the owner of those seized documents. Therefore, we hold that the AO was not justified in exercising jurisdiction u/s 153C of the Act. Hence, the assessments made pursuant to issue of notice u/s 153C are hereby cancelled.
Additional depreciation u/s. 32(1)(iia) - assessee as engaged in manufacturing or production of coal which is production activity - AO held that assessee is not engaged in any production / manufacturing activity and therefore the additional depreciation is not available for the deduction u/s 32(1)(iia) - whether the activity of extraction of coal amounts to the production? - CIT-A allowed deduction - HELD THAT:- As decided in GS. ATWAL AND CO. (GUA). [2001 (2) TMI 32 - CALCUTTA HIGH COURT] the point that the assessee is still not an industrial undertaking even though it might be engaged in production of coal is, in our opinion, also to be decided against the Revenue. Under the definition of an industrial undertaking given under s. 33B, Explanation mining activity would bring in the assessee within the definition of an industrial undertaking. But we need not import the definition of another section to the present one, although ordinarily the definition given in one section in an Act can be used for the purposes of another section unless the context indicates otherwise.
So far as the assessee is concerned, an undertaking it certainly is. We have found no facts from which we can opine that the assessee is not an industrial undertaking. Ordinarily speaking if a manufacturing activity or an article producing activity is carried on, an undertaking carrying on such activity is to be classed as an industrial one. It might be small scale or large scale, that does not matter much. Even if an undertaking is manufacturing or producing articles, but is still not to be classed as an industrial one for this, clear indications have to be given as to why this difference should be made in case of the undertaking in question, so that it stands out from the general category. - Decided against revenue.
Excess depreciation claim - AO opined that the machine has been used in the year under consideration for less than 180 days - HELD THAT:- We find that the machine was put to use with effect from 02.10.2009 as evident from the Delivery Inspection Report, the Service Report of Volvo India Pvt. Ltd. and also from the report of Heavy earth moving machine. In the background of the above discussion and precedent we do not find any infirmity in the order of Ld. CIT(A) and according we uphold the same. This ground of Revenue is dismissed.
Addition on account of festival celebration expense - allowable business expenses or not? - assessee has claimed festival celebration expense on its completion of 50 years of existence - HELD THAT:- The assessee celebrated its Golden Jubilee in Maysore where all the stockholder of the assessee-company, such as principals, founders, suppliers, banners, employees were also invited - the Golden Jubilee festival was celebrated on the completion of its flagship Ravi Udyog it came into existence in 1972 to 1973 and the flagship company was the strategic partners of the assessee-company. The expenses were incurred wholly and exclusively for the purpose of business of assessee.
There is no denial that expenditure was incurred by the appellant. The AO has brought no evidence on record to show that any part of the expenditure under consideration was bogus or of capital nature or incurred for the purpose other than wholly and exclusively for the purposes of the business of the appellant. Under the circumstances no justification of disallowance made by the AO especially, when the expenditure was supported by bills and vouchers - Decided against revenue.
Non prosecution of appeal - HELD THAT:- When the matter was called up for hearing today, no one has appeared on behalf of the assessee. The assessee has not filed any adjournment application also. The notice of hearing sent to the assessee has not been returned unserved. The matter was earlier adjourned a couple of times at the request of the assessee. In these circumstances, it appears that the assessee is not interested in prosecuting his appeal. The appeal filed by the assessee is, therefore, liable to be dismissed, for non-prosecution.
The appeal filed by the assessee is dismissed for non-prosecution.
Cancellation of cash credit facility under which the loan was obtained - default in repayment of loan - privity of contract between the respondent Bank in carrying on business - insufficiency of stamp duty - HELD THAT:- In the present case, the Company raises a defence that if the creditor was to enforce the corporate guarantee on account of non-payment of dues by the main borrower, in a Civil Court, the creditor could not be relying upon this document which forms the basis of the debt since it is inadequately stamped. If such defence is taken up in a Civil Suit, and if the document in question is insufficiently stamped, probably, such defence may come to the aid of the appellant. At this stage, there are no steps taken by the creditor to enforce its claim against the guarantor based on the documents of corporate guarantee in the State of Maharashtra. Therefore, definitely, in the present Company Petition, the Company Court was not required to consider such plea raised by the appellant. Therefore, such defence will not hold water in aid of appellant's contention.
Want of certificate by an authorized officer of the respondent Bank, in accordance with the terms of corporate guarantee, the certificate referred to in clause 15, is said to be a conclusive proof of the dues. It could be one of the modes of conclusive evidence against the guarantors. However, there could be other evidence of such conclusive evidence of the dues. In other words, it could be proved by other means of evidence. If there is convincing material on record with regard to the dues of the creditor against whom winding up is sought, it is immaterial whether a certificate of the nature was produced or not.
When a statutory notice before lodging Company Petition seeking winding up of the appellant's Company was filed by the respondent Bank, they had made it clear that the respondent bank's debt was over 22 crores, therefore, cannot be said to be disputed with bonafides on the part of the appellant. There is nothing on record to show that in the Company Petition, the respondent Bank has not correctly disclosed the position of the debt as on the date of the petition.
Nature of expenditure - whether the payments made were capital or revenue in nature? - assessee had urged that in the light of the National Telecom Policy 1999, the payments - made on quarterly basis were not capital- that is for depreciation under Section 32 but entitled to be treated as revenue expenditure - HELD THAT:- CIT (A) and ITAT accepted the assessee’s contention and directed that the expenditure should be treated as falling under revenue fee by relying upon Commissioner of Income Tax vs. Fascel Limited [2008 (12) TMI 743 - DELHI HIGH COURT]. There is also a subsequent judgment Commissioner of Income Tax vs. Bharti Hexacom Ltd [2013 (12) TMI 1115 - DELHI HIGH COURT] in which it was held that such payments are in fact revenue and cannot be treated as capital expenditure.
This court is of the opinion that having regard to Bharti Hexacom Ltd (supra), the question of law urged does not arise. No other substantial questions of law have been pleaded.
Maintainability of a cross-objection - Code of Civil Procedure is applicable to an appeal preferred Under Section 37 of the Act - HELD THAT:- In juxtaposition with the provisions contained in 1996 Act, it seems that the legislature has intentionally not kept any provision pertaining to the applicability of the Code of Civil Procedure. On the contrary, Section 5 of 1996 Act lays the postulate, that notwithstanding anything contained in any other law for the time being in force in matters covered by Part I, no judicial authority shall intervene except so provided wherever under this Act.
In International Security & Intelligence Agency Ltd. [2003 (2) TMI 498 - SUPREME COURT], a three-Judge bench was dealing with maintainability of a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. It is apt to mention here that the controversy arose in the context of 1940 Act. While dealing with the same, the three-Judge bench ruled thus a cross objection can be preferred if the applicant could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39(1) of the Act. If the subject-matter of the cross objection is to impugn such an order which does not fall within the purview of any of the categories contemplated by Clauses (i) to (vi) of Sub-section (1) of Section 39 of the Act, the cross objection shall not be maintainable.
As is manifest, a person grieved by the award can file objection Under Section 34 of the 1996 Act, and if aggrieved on the order passed thereon, can prefer an appeal. The court can set aside the award or deal with the award as provided by the 1996 Act. If a corrective measure is thought of, it has to be done in accordance with the provision as contained in Section 37 of the 1996 Act, for Section 37(1) stipulates for an appeal in case of any grievance which would include setting aside of an arbitral award Under Section 34 of the Act.
Section 5 which commences with a non-obstante Clause clearly stipulates that no judicial authority shall interfere except where so provided in Part 1 of the 1996 Act. As we perceive, the 1996 Act is a complete Code and Section 5 in categorical terms along with other provisions, lead to a definite conclusion that no other provision can be attracted. Thus, the application of Code of Civil Procedure is not conceived of and, therefore, as a natural corollary, the cross-objection cannot be entertained.
The analysis made in ITI Ltd. [2002 (5) TMI 706 - SUPREME COURT] to the effect that merely because the 1996 Act does not provide Code of Civil Procedure to be applicable, it should not be inferred that the Code is inapplicable seems to be incorrect, for the scheme of the 1996 Act clearly envisages otherwise and the legislative intendment also so postulates - As we are unable to follow the view expressed in ITI Ltd. (supra) and we are of the considered opinion that the said decision deserves to be re-considered by a larger Bench.
Let the papers be placed before the Hon'ble the Chief Justice of India for constitution of an appropriate larger Bench.
Revision u/s 263by CIT - reason given in the show-cause notice as different for which revision powers are finally exercised - unexplained investment under section 69B - HELD THAT:- The issue raised by the ld. CIT in the notice issued u/s 263 of the Act was materially different with grounds on which the revision order was passed. It is thus clear that the ground taken in the show-cause notice that there was unexplained investment under section 69B - But upon taking into account the submission made by the assessee, the ld. CIT himself changed the stand. CIT instead of taking the decision on merits based on the show-cause notice has merely referred the matter to the Assessing Officer for verification of certain aspects. It is thus clear that there was a shift in the stand of the ld. CIT as to whether it was a case for revision on the ground of unexplained investment under section 69B of the Act or non-verification of certain aspects. The reason given in the show-cause notice is different for which revision powers are finally exercised in the impugned order.
As in a situation in which the revision order is passed on the ground other than the grounds for which revision proceedings are initiated, the same cannot be sustainable in law. That apart, in the impugned order we have also noticed that the learned Commissioner has not faulted the explanation given by the assessee and has merely remitted the matter to the file of Assessing Officer for verification of factual elements embedded in explanation as given by the assessee. This approach is also not sustainable in law in view of the law laid down by the Hon'ble Bombay High Court in the case of CIT -vs.- Gabriel India Limited [1993 (4) TMI 55 - BOMBAY HIGH COURT]
In the present case, proceedings were not initiated on the grounds that adequate enquiries were not carried out. The Commissioner has not alleged in the show cause notice that adequate enquiries were not carried out, and again, it is elementary that no person can be condemned unheard, and therefore, the assessee not having been heard on the question whether or not adequate enquiries were carried out, learned Commissioner could not have subjected the assessment order to revision proceedings on the ground that adequate enquiries were not carried out. Secondly, there is nothing on record to provoke an enquiry, which has not been carried out in the instant case. Learned Commissioner has not pointed out any reason as to why the Assessing Officer should have made further enquiry, which was apparently left out. In view of this discussion and entirety of the case, we uphold the grievance of the assessee and quash the impugned revision order. AO has conducted the enquiry about the addition of the fixed assets as appearing from the notice issued under section 142(1)
Commissioner of income tax can exercise his jurisdiction u/s 263 of the Act only in cases where no enquiry is made by the Assessing Officer. In the instant case, it is admitted by the Income Tax Department that the Assessing Officer had made some enquiries though according to them it was not a proper enquiry. In view of the above facts that some enquiry was made is sufficient to debar the authorities from exercising the powers u/s 263 of the Act. The Tribunal was accordingly justified in setting aside the order passed u/s 263 of the Act. - Decided in favour of assessee.
Disallowance u/s 14A r.w.r.8D - In the instant case the AO has taken the possible view for making the disallowance under section 14A of the Act. Thus in our considered view the AO has taken a possible view and therefore the order of the AO cannot be held erroneous & prejudicial to the interest of Revenue. Accordingly the ground raised by the assessee is allowed.
Addition of trade discount on the ground that the assessee claim for trade discount was not in order - From the submission of the ld. AR we find that details of the trade discount were duly furnished to the AO at the time of assessment under section 143(3) of the Act. The details of such discount is placed - From the facts we find that the ld. CIT has changed its stand as initiated in the notice and at the time of passing the order under section 263 of the Act. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed.
Excess depreciation claimed - We do not agree with the view of the ld. CIT as there is change in his stand with regard to the notice and in the revision order. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed. The assessee gets the relief, accordingly - Assessee appeal allowed.
Correct head of income - income earned on share transactions - profit from capital gain or business income - HELD THAT:- DR has not brought any material to demonstrate that the facts are not identical to the case decided by the Tribunal for the AY 2007-2008. Therefore, we are of the opinion, the decision of the CIT (A) to rely on the said Tribunal's decision (supra) for the AY 2007-08 is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.
Disallowance of fuel cost for the period FY 2014-15 and FY 2015-16 - Whether the Appellant is entitled to claim the fuel costs incurred by it due to delay in execution of Fuel Supply Agreement (FSA) with Coal India Limited (CIL) and its subsidiaries for reasons not attributable to the Appellant in its tariff to Respondent No.2, with whom there is a valid, duly approved Power Purchase Agreement, in accordance with the applicable Tariff Regulations of State Commission? - HELD THAT:- This issue is answered in favour of the Appellant for allowing cost of coal for Unit-I limiting to the extent of what has been allowed/is being allowed by the State Commission for the corresponding period for the supply under FSA arrangement for the generation from Unit-II of the Appellant to Respondent No.2.
Approval of Auxiliary Energy Consumption of 9.05% for FY 2014-15 in paragraphs 2.5.9 to 2.5.19 of the Impugned Order as against 9.61% as proposed by the Appellant - HELD THAT:- Considering the actual Auxiliary Energy Consumption as 9.61%, the availability for the year works out to be 85.40% which is more than the Target Availability and consequently, the Appellant is entitled for recovery of entire Annual Fixed Charges for FY 2014-15.
The consequent computation of Availability in paragraph 2.3 of the Impugned Order of 84.83% as against 85.40% as proposed by the Appellant - HELD THAT:- The compensation as per IEGC amendments are described under Sub Regulation 6.3 B. Further as per Notification dated 6.4.2016, the IEGC fourth amendment Regulations shall come into force with effect from date of publication in Official Gazette except subregulation 6.3B which shall come into force on such date as the Commission may appoint by notification in the Official Gazette - Hence these Amendments related to APC have not come into effect. Hence the State Commission cannot allow such increase in Auxiliary Power Consumption due to part load compensation due to backing down instructions by SLDC. Consequent to this, there can be no change in the availability of the Power Station for the period FY 2014-15. This issue is decided against the Appellant.
Approval of Gross Station Heat Rate of 2401 kcal/kwh as against 2457 kcal/kwh for FY 2014-15 as proposed by the Appellant - HELD THAT:- In view of the fact that the Appellant's Generating Station was in the 1st and 2nd year of operations after its Commercial Date and the Appellant had produced sufficient material before Respondent No.1 for exercise of such powers, is decided against the Appellant.
Consideration of actual Interest on Working Capital (IWC) of ₹ 33.43 Crore for computing efficiency gain on the purported basis - HELD THAT:- Once having recognized that there is a requirement of funds to manage operations in business, it cannot be implied that the same has been met through operational efficiency as has been held by the State Commission in the Impugned Order.
Interest on Working Capital - HELD THAT:- The State Commission had sought the month-wise cash flow statement from VIPLG to substantiate that the internal accruals were utilised to meet the working capital requirement. However, in the present matter, the Interest on Working Capital as per audited accounts was ₹ 33 Crore. Therefore, the State Commission considered ₹ 33 Crore as the actual Interest on Working Capital.
Computation of Income Tax as proposed by the Appellant instead of restatement of the same based on the Impugned Order for the period F.Y. 2014-15 onwards - HELD THAT:- The State Commission has allowed the Income Tax for FY 2015-16 in accordance with the Regulation 34.1 of the MYT Regulations, 2011. The State Commission has considered the Income Tax for FY 2015-16 in the Impugned Order on provisional basis - Further the Regulation 34.2 of the MYT Regulation provides for the the reimbursement of difference between the actual and approved Income Tax at the time of final True –up. Therefore, the provisionally approved Income Tax for FY 2015-16 and the subsequent 3rd Control Period shall be subject to final truing up. Hence we are in agreement with the decision of the State Commission in this issue - the issue is decided against the Appellant.
Disallowance of Ash Utilization and Disposal Expenses and the findings - HELD THAT:- The State Commission has not allowed the Ash disposal expenses on the ground of inappropriate design. The Ash disposal area is even not in accordance with the CEA guidelines. Therefore the Appellant was held fully responsible for this lapse and the impact of such disposal difficulties was not allowed to be passed on to the Beneficiaries - the impact of any such lapse in planning/ design of the Ash Utilization facilities should not be passed on to the Beneficiaries. Hence this issue is decided against the Appellant.
Disallowance of Additional O&M expenses towards RO Plant - HELD THAT:- The State Commission in its Impugned Order has detailed out the issue related to additional O&M expenses for RO Plant as well as normative O&M expenses allowed in the Impugned Order - We have perused the findings of the State Commission and do not find any infirmity.
Jurisdiction of the State Commission to order refund of the excess amount - HELD THAT:- As in the case of FY 2014-15, the State Commission directed the Appellant to refund the Revenue Surplus of FY 2015-16, determined as ₹ 405.89 crore upon provisional truing up, to Rlnfra-D in 6 monthly instalments.
Whether Respondent No.1 has the power, authority or jurisdiction to pass an order of refund as has been done in the present case? - HELD THAT:- The Tariff can be determined by the State Commission with either upward revision resulting in increase in charges payable by the Consumer or have the downward revision with reduction in charges payable. Hence we decide this issue against the Appellant.
Unabsorbed depreciation set off against the long term capital gain - HELD THAT:- By placing reliance on the judgment of the Gujarat High Court in General Motors P Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT], this Tribunal in the assessee’s own case for the assessment year 2007-08 [2014 (1) TMI 1908 - ITAT CHENNAI] allowed the claim of the assessee. The only contention of the department representative is that the decision of the Mumbai Special Bench of this Tribunal is against the assessee.
This Tribunal is of the considered opinion that the judgment of the Gujarat High Court has to be preferred rather than the decision of the Mumbai Special Bench of this Tribunal. Therefore, the CIT(A) has rightly placed his reliance on the judgment of the Gujarat High Court in General Motors P Ltd. (supra) rather than the decision of Mumbai Special Bench of this Tribunal in Times Guarantee Ltd. (supra). - Decided against revenue.
Disallowance u/s 14A r.w.r. 8D - sufficiency of own funds - suo moto disallowance - ITAT deleted the addition - satisfactory explanation - HELD THAT:- Considering the fact that while making the addition made by the Assessing Officer under Section 14A of the Income Tax Act read with Rule 8D of the Income Tax Rules, 1962, the Assessing Officer did not record as to how the expenditure as claimed by the assessee was not satisfactory, and considering the fact that the assessee had sufficient interest free fund, out of which the concerned investment had been made, it cannot be said that the learned Tribunal has committed any error in deleting the addition made by the Assessing Officer made under Section 14A r.w.r. 8D of the Income Tax Rules, 1962. Under the circumstances and considering the direct decision of the Division Bench of this Court in the case of India Gelatine and Chemicals Limited .[2015 (11) TMI 392 - GUJARAT HIGH COURT]
No substantial question of law arise in the present appeal.
Bogus purchases - Addition u/s 69C - HELD THAT:- Considering the law declared by the Supreme Court in the case of Vijay Proteins Ltd. [2015 (4) TMI 1146 - SC ORDER] whereby the Supreme Court has dismissed the SLP and confirmed the order passed by the Gujarat High Court [2008 (3) TMI 323 - GUJARAT HIGH COURT] and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax [2008 (3) TMI 323 - GUJARAT HIGH COURT] and N.K. Industries Ltd. Vs. Dy. C.I.T., [2016 (6) TMI 1139 - GUJARAT HIGH COURT] the parties are bound by the principle of law pronounced in the aforesaid three judgments.
We remit back the case to the Assessing Officer for deciding afresh on the factual matrix. The authority will accept the law but the transaction whether it is genuine or not will be verified by the Assessing Officer on the basis of the aforesaid three judgments.
Oppression and mismanagement - transfer of shares - holding of Extraordinary General Meeting - whether the R1/petitioner is entitled to maintain the C.P. under Section 397 and 398 alleging oppression and mismanagement? - HELD THAT:- The applicant NSS Karayogam is neither a shareholder in Rl company, nor any relief has been claimed against the same. Moreover, the petitioner is not a secretary of NSS Karayogam as has been held by the Subordinate court. Kozhicode. dated. 28.6.20 12. He is neither a necessary party nor a proper party in the matter relating to C.P. filed under Sections 397 and 398 of the Companies Act. 1956. because no relief is claimed against the applicant, nor any transfer of shares pertaining to NSS Karayogam is under challenge. There is no concern whatsoever of NSS Karayogam with the Company petition.
Deduction u/s 80IA(4) - profit from infrastructure development and their operation and maintenance activities - assessee-company is engaged in the business of development of various infrastructure facilities relating to water and sewage treatment and its operation and maintenance - HELD THAT:- As decided in own case [2013 (4) TMI 969 - ITAT AHMEDABAD] relying on decision of Hon’ble Bombay High Court in the case of ABG Heavy Industries [2010 (2) TMI 108 - BOMBAY HIGH COURT] as directly applicable on the assessee, wherein it was opined that the said assessee entered into a contract for supply, installation, testing, commissioning and maintenance of container handling cranes at JNPT for a term of 10 years whereafter the same would vest in the letter, is entitled for deduction u/s.80IA(4). This decision of the Hon’ble Court is directly applicable on the facts of the case.
Thus as Respected Coordinate Bench has already granted the deduction claimed by the assessee, therefore for the years under consideration the assessee is entitled for the deduction u/s.80IA(4) - Decided in favour of assessee.
CENVAT Credit - Input services - output transportation - scope of input services - Rule 2(l) of CCR - It was held by High Court that Credit of service tax paid on outward transportation allowed prior to 1.4.2008 - HELD THAT:- Appeal admitted.
Extension of Interim Order - HELD THAT:- Let this matter appear in the list on 1st December, 2016 under the same heading as "Extension of Interim Order" at the top.
The interim order which was passed earlier, will continue till 15th December, 2016 or until further order whichever is earlier.
Application for vacating the interim order - agreement for sale transcribed on sufficient Stamp Paper or not - HELD THAT:- The agreement for sale which was allegedly entered into between the parties, has also annexed to the injunction application. The agreement was typed out on ten rupee Non-Judicial Stamp Paper - it is found that the agreement itself was typed out on insufficient Stamp Paper. Such an agreement for sale parse cannot be enforced unless the document is impounded. Impounding can be done only when the original agreement is tendered into evidence.
The plaintiff claims that he has paid a sum of ₹ 65,00,000/- on account of earnest money in cash. The agreement does not contain any receipt clause. No separate receipt is also forth-coming from the side of the plaintiff showing payment of ₹ 65,00,000/- to the defendants; even the agreement does not contain any description of the notes by which such payment was tendered to the plaintiff - It cannot be held that a prima facie case has been made out by the plaintiff for going for trial.
The learned Trial Judge did not commit any illegality by refusing to pass any ad interim order of injunction in such a suit - Appeal dismissed.
9911796707
