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Showing 61 to 80 of 1428 Records
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2015 (3) TMI 1378 - ITAT AHMEDABAD
Validity of assessment order passed u/s 143(3) - assessment made on a dead person - HELD THAT:- Assessee expired on 23.12.2007 and this fact was brought to the notice of the AO during the course of assessment proceedings vide assessees’s authorized representative Chartered Accountant, letter dated 1.9.2009. The Bench had called for the assessment record to verify whether the said letter was filed by the assessee and was forming part of the assessment record or not.
DR confirmed during the course of hearing by producing the assessment record that the said letter of the assessee dated 1.9.2009 was there in the assessment record. This proves that the assessee’s AR had brought to the notice of the AO the factum of the death of the assessee - AO, thereafter, instead of taking steps to bring the legal heirs on record, proceeded to frame the assessment of a dead person.
Thus, this issue is covered by the decision of this Bench of the Tribunal in the case of ITO Vs. Shri Akhter Nooruddinahmed Saiyed [2014 (6) TMI 113 - ITAT AHMEDABAD] DR could not bring any material before us to show that the impugned assessment order was passed after issuing any notice to the legal representative of the deceased individual. Therefore, in our considered view, the appeal filed by the Revenue is not maintainable.
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2015 (3) TMI 1377 - ITAT PUNE
Registration u/s.12A denied - activities carried on by the trust were meant for members of the Jain community and thus it is established for the benefit of specific religious community attracting the provisions of section 13(1)(b) - whether the trust whose objects were religious as well as charitable would be entitled for registration under section 12A? - HELD THAT:- One of the objects of the assessee trust was to build a temple, prayer hall and maintain the same and further object was to set up a religious library, maintain it and propagate Indian culture and inculcate and study all the cultures of all the religion. Further, to take up research on religious, social and educational in order to uplift the public at large. The objects Nos.3 to 5 of the Trust Deed were admittedly for the propagation of philosophy of Shri Jain Shwetamber Murtipujak. However, object No.7 was to create, encourage and propagate inter-se cooperation, co-living and feeling of co-living in the community of entire public at large. The objects of the assessee trust thus, reflect the activities to be carried on for the purpose of Jain religion and also for the purpose of public at large. In view thereof, it could not be held that the same are meant for the benefit of only Jain religious community. We reverse the findings of the Commissioner in this regard.
Hon’ble Supreme Court in CIT Vs. Dawoodi Bohra Jamat [2014 (3) TMI 652 - SUPREME COURT] while holding the trust eligible to claim exemption under section 11 of the Act. In the totality of the above said facts and circumstances, we hold that the assessee is a charitable religious trust and the provisions of section 13(1)(b) of the Act would not be applicable. In view thereof, we direct the Commissioner to grant registration to the assessee under section 12A of the Act as charitable religious trust. The grounds of appeal raised by the assessee are thus, allowed.
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2015 (3) TMI 1376 - ITAT MUMBAI
Revision u/s 263 - Deduction u/s 80IB(10) - HELD THAT:- It is not in dispute that the AO had taken into consideration the revised certificate issued by the Pune Municipal Corporation while granting the benefit of deduction under section 80IB(10) of the Act.
It cannot be disputed that the view taken by the AO is one of the possible views on the matter. As rightly observed in the case Gabrial India Ltd. [1993 (4) TMI 55 - BOMBAY HIGH COURT] as well as case of Sunbeam Auto Ltd. [2008 (11) TMI 348 - RAJASTHAN HIGH COURT] merely because the Commissioner of Income Tax holds a different opinion on the matter an order passed by the AO cannot be considered as erroneous and prejudicial to the interests of Revenue particularly when it cannot be attributed to lack of enquiry by the AO. We are of the firm view that the learned Commissioner has no jurisdiction to invoke provisions of section 263. - Decided in favour of assessee.
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2015 (3) TMI 1375 - MADRAS HIGH COURT
Jurisdiction - power of assessing officer to compound the offence - requirement of petitioner agreeing for compounding - HELD THAT:- Without going into the merits of the matter, this Court allows this revision and sets aside the impugned order. The disposal of the Writ Petition is not a bar for the authority concerned to proceed against the petitioner, if so advised.
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2015 (3) TMI 1374 - SC ORDER
Power driven pump - Exemption under Rule 8(i) of the Central Excise Tariff Rules - contravention of the provisions of Rule 173-C and 173-F - it was held by High Court that the column and shaft assembly as well as the discharge head assembly only contribute to the effectiveness of the bowl assembly, which by itself is not sufficient to claim exemption as a machine under entry 84.13 - HELD THAT:- The judgement is upheld - appeal dismissed.
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2015 (3) TMI 1373 - ITAT PUNE
Denial of deduction u/s 10A - HELD THAT:- As following the same parity of reasoning in assessee's own case [2015 (3) TMI 494 - ITAT PUNE] we hold that in the absence of any arrangement having been arrived between the parties which resulted in higher profits, there is no merit in the order of the AO in re-working the profits by invoking the provisions of section 10A(7) r.w.s. 80-IA(10) - Accordingly, we reverse the order of the CIT(A) in restricting the deduction u/s 10A of the Act and direct the AO to delete the addition - Decided in favour of assessee.
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2015 (3) TMI 1372 - DELHI HIGH COURT
Prevention from travelling outside the country - violation of fundamental rights or not - Whether the right to travel abroad is a fundamental right protected by Article 21 of the Constitution? And if so, could the violation of that right impact the freedom of speech and expression of a citizen protected under Article 19(1)(a) of the Constitution? - HELD THAT:- It cannot be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While, it may be true that the right to go abroad is not included the right to freedom of speech and expression - in some cases, the curtailment of right to travel abroad could impact, a citizen's right of free speech and expression.
Whether the 2010 O.M. would constitute a "law" within the meaning of Article 13(3)(a) of the Constitution? - Whether the issuance of an LOC qua Ms Pillai was justified in the given facts and circumstances? - Whether the consequent detention of Ms Pillai on 11.01.2015, at the airport, resulted in violation of her fundamental right, under Article 21, and 19(1)(a) of the Constitution? - HELD THAT:- There is nothing on record to show that Ms Pillai intended to do anything more than this. The argument of the respondents that Greenpeace U.K. and Greenpeace International were fomenting protests in the country with respect to various public projects, especially, in the field of thermal and nuclear power generation, is not backed with actionable material. The record would show that while the respondents may have regulated the inflow of funds to Greenpeace International, by having it put in the "prior approval" category, there is no such directive issued either qua Greenpeace U.K., or Greenpeace India. Ms Pillai, is admittedly, employed with Greenpeace India - The only violation which is brought to fore, in the counter affidavit, qua Greenpeace India, is one concerning certain notices issued by the Income Tax Authorities; which have clearly, some revenue implications. However, the alleged violation of tax laws, which I am informed is contested, would not, in my opinion by itself, be demonstrative of the fact that the activities carried out by Greenpeace India, via its employees, agents and servants, is inimical to the economic interest of the country. While there is no gainsaying that economic security, as against physical security of a nation in today's time and space, is equally vital, if not more - nothing, which is placed before me, in the form of affidavit, or is found in the record, which was shown to me in court, would have me, presently, come to a conclusion that the activities of Ms Pillai, in particular, or those of the organizations, with which she is associated, are activities, which have the potentiality of degrading the economic interest of the country.
The core aspect of democracy is the freedom of an individual to be able to freely operate, within the framework of the laws enacted by the Parliament. The individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent.
There was no basis for the respondents to issue an LOC qua the petitioner. That being so, the decision taken to detain the petitioner at the airport on 11.01.2015, in my opinion, was illegal being violative of the Ms Pillai's right under Article 21 and 19(1)(a) of the Constitution. 13.9 The actions of the respondents do not fall within the ambit of reasonable restriction, as articulated in Clause (2) of Article 19. Clause (2) of Article 19 protects a "law" which imposes reasonable restrictions on the exercise of rights conferred upon a citizen under Article 19(1)(a), in the interest of: sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency, morality or in relation to contempt of court, defamation or incitement to an offence.
Petition disposed off.
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2015 (3) TMI 1371 - CALCUTTA HIGH COURT
Suit for recovery of money lent and advanced against pledge of shares - security of shares pledged by the defendant with the plaintiff - agreement between the plaintiff and the defendant or not - Did the plaintiff lend and advance any amount pursuant to such agreement? - agreement between the parties or not - HELD THAT:- The nature of transactions between the parties is not disputed. The parties agree that the plaintiff had agreed to grant and did in fact grant a loan of ₹ 1,10,00,000/-to the defendant against the pledge of Himachal Futuristic Company Limited (HFCL) shares. The defendant had pledged the HFCL shares belonging to it with the plaintiff. However, the defendant had transferred the HFCL shares to the plaintiff by transferring such shares to the dematerialized account maintained by the plaintiff - The parties differ as to the rate of interest payable by the defendant to the plaintiff and as to whether or not the payment of ₹ 1,68,000/- made on April 20, 2001 by the defendant to the plaintiff was on account of full and final settlement of the claim of the plaintiff against the defendant or whether the same was payment on account of interest for the period up to March 31, 2001 as contended by the plaintiff.
Both the witness in evidence stated that the plaintiff used to lend and advance sums the defendant against pledge of shares and payment of interest. The rate of interest is however disputed. The plaintiff claims varying rates while the defendant contends that the rate of interest was agreed to be 18% per annum - the issue has to be answered by holding that there was an agreement between the parties.
Existence of money lend and advance exists or not - HELD THAT:- The defendant in its written statement as well as in evidence through its witness admits that the receipt of the sum of ₹ 1,10,00,000/- from the plaintiff as loan. The defendant however claims to have repaid the same - has to be answered by holding that the plaintiff did lend and advance of ₹ 1,10,00,000/- to the defendant pursuant to such agreement - Thus, it can be safely concluded that there exists agreement between the parties.
Service of notice - Did the defendant receive the notice dated 14th January, 2002? - HELD THAT:- Exhibit ‘J’ was sought to be served on the defendant both at his residential address as well as at his office address by Speed Post with the acknowledgement due card. The plaintiff has established that the letter being Exhibit ‘J’ was duly despatched by Speed Post to the correct address of the defendant at his residential and office addresses. The defendant did not claim Exhibit ‘J’ at its residential address and the envelope addressed to the office address was not received by the defendant as its office had remained closed. The facts established allows a finding of deemed service of the notice dated January 14, 2002 on the defendant - Issue answered in the affirmative and against the defendant.
Was the plaintiff entitled to sell the shares pledged by the defendant to the plaintiff as security for the loan rendered by the plaintiff to the defendant of a sum of ₹ 1,10,00,000/-? - HELD THAT:- In the present case, the shares pledged were sold in the stock market within the parameters of the quoted prices for the shares prevailing on the date of the sale. The defendant has not questioned the sale of the shares per se. The defendant questions the date of the sale of the shares. Such question has no substance in the facts of this suit as the sale was undertaken after notice to the defendant - issue is answered in the affirmative and in favour of the plaintiff.
Did the plaintiff receive the letters dated 7th February, 2001 and 20th April, 2001? - HELD THAT:- The witness of the defendant claims himself to be the accountant of the defendant. Such witness claims that Mr. Govind Kedia has told the defendant that Exhibits ‘6’ and ‘7’ were handed over by Mr. Govind Kedia to the plaintiff. The defendant claims that Mr. Govind Kedia to be the agent of the plaintiff. No documentary evidence has been placed on record by the parties to establish that Mr. Govind Kedia was the agent of the plaintiff. The witness for the defendant in its oral testimony says that Mr. Govind Kedia has acted as an agent of the plaintiff. Mr. Govind Kedia has not been called as a witness. The whereabouts of Mr. Govind Kedia is not known to the witness of the defendant. The evidence of the witness of the defendant is hearsay and cannot be relied upon - The defendant has therefore failed to establish that the plaintiff had received the letters dated February 7, 2001 and April 20, 2001 being Exhibits ‘7’ and ‘6’ respectively - issue answered in the negative and in favour of the plaintiff.
Is the plaintiff entitled to decree as claimed in the plaint? - HELD THAT:- The loan for the sum of ₹ 1,10,00,000/- is admitted. The value of the sale of pledged shares is ₹ 8,55,400/-. The defendant is, therefore, entitled to the adjustment of the value of the pledged shares with the principal amount outstanding. Therefore, the principal amount outstanding is ₹ 1,01,44,600/-. The defendant has paid interest upto March 31, 2001. The nature of transactions between the parties is commercial. The nationalized banks charge interest at rates not less than 12 per cent per annum in respect of commercial transactions. In such circumstances, the plaintiff is entitled to interest at the rate of 12 per cent per annum on and from April 1, 2001 until realization on the sum of ₹ 1,01,44,600/-. The plaintiff is, therefore, entitled to a decree for ₹ 1,01,44,600/- together with interest at the rate of 12 per cent per annum on such sum on and from April 1, 2001 until realization.
Other reliefs? - HELD THAT:- The plaintiff has paid a Court-fees of ₹ 10,000/-. The plaintiff will therefore be entitled to a decree of ₹ 20,000/- as assessed costs from the defendant.
Application disposed off.
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2015 (3) TMI 1370 - MADRAS HIGH COURT
Benefit of payment of taxes at compounded rates - benefit denied on the ground that the petitioner had effected interstate purchases during the assessment year 2009-10 - Section 6(1) of TNVAT Act - HELD THAT:- Petitioner have not effected any inter-state purchases. All the purchases have been effect from local registered dealers upon sufferance of tax. They have also enclosed the purchase list with invoice copies for 2009-10.
Thus, the petitioner has not purchased the goods from other States and there is no need to file separate application under Section 6 of the Act. Admittedly, the respondent has accepted that the petitioner has not made any purchase of the goods outside the country - petition allowed - decided in favor of petitioner.
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2015 (3) TMI 1369 - ITAT AHMEDABAD
Levying penalty u/s. 271C - assessee had not deducted TDS from the payments made to the State Bank of India as MICR charges during the relevant year u/s.194J - HELD THAT:- Since tax has already been paid by the payee, no penalty could be levied on assessee-payer for failure to deduct tax at source as held by the ITAT Bangalore Bench rendered in the case of Wipro GE Medical Systems Ltd. vs. ITO [2005 (1) TMI 609 - ITAT BANGALORE]. In view of the above, penalties levied by the authorities below u/s.271C are directed to be deleted in all the four years as these pertain to same issue.- Decided in favour of assessee.
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2015 (3) TMI 1368 - ITAT MUMBAI
Deduction u/s 80IB(10) - as per revenue the original commencement certificate was issued to the assessee on 06.09.1991 i.e prior to 01st October 1998 - CIT-A allowed the claim - HELD THAT:- The condition for commencement is a primary condition and if the project is found commenced prior to 1.10.1998, it would not be entitled for deduction u/s 80IB(10), at the threshold without going into the other condition prescribed under the other clauses of section 80IB(10)
There was some dispute at the time of original approval granted by the CIDCO on 6.9.1991 on the point of development charges as well as theatre and shops in the development plan. Accordingly, the original owner of the land in question challenged the action of CIDCO rejecting the modified development proposal vide order dated 18.06.1998 by filing the appeal u/s 47 of the Maharashtra Regional and City Planning Act 1966. The appeal was decided by the appellate authority on 8.9.1999. In pursuant to the order of appellate authority, the amended approval certificate dated 3.10.2005 was issued by the CIDCO. From perusal of the order dated 8.9.1999, we find that there was some construction in the project prior to the amendment proposal in the development plan put forward by the owner of the land which was rejected by the CIDCO vide order dated 18.06.1998.
Therefore, the commencement of the project has to be taken into account as per the actual construction work started in respect of the project and not by taking into consideration the original sanction and amended sanction of the plan. Since the actual work of construction and development of the project has not been examined by the authorities below, therefore, in the facts and circumstances of the case, we set aside this issue to the record of AO for proper verification and examination of the fact and then decide the issue as per law. The issue of completion of project within the prescribed time limit is kept open - Decided in favour of revenue for statistical purposes.
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2015 (3) TMI 1367 - KARNATAKA HIGH COURT
Classification of goods - Agricultural tree climbing apparatus-Unipole-manually operated - Agricultural tree climbing apparatus-Bipole-manually operated are to be construed as “agricultural implements manually operated” - whether falls under Serial No.1 of 1st Schedule to the Act? - HELD THAT:- The expression “Agricultural implements” is not defined under the Act. As per New Webster’s Dictionary ‘implement’ means an instrument, tool or utensil; an article assisting in carrying on manual labors. As per Oxford Dictionary, ‘implements’ means tools, instruments. Hence, it can be construed that ‘Agricultural implements’ are apparatus or tools or instruments employed in agriculture.
In the modern technological era, these products are new inventions to suit the present day farming in view of the shortage of skilled agricultural labourers. The product (a) is a kind of commonly used agricultural implement, regarded in common parlance according to the sense of agriculturists, ordinary traders and merchants as agricultural implements - the product Agricultural tree climbing apparatus-Unipole is an agricultural implement falling under Serial No.1 of First Schedule to the Act exempted from tax under Section 5(1) of the Act.
Agricultural tree climbing apparatus-Bipole - HELD THAT:- The Authority for clarification has not applied its mind to examine the product according to common parlance or trade parlance. No reasons are assigned to classify the product under Section 4(1)(b)(iii) of the Act. Photographs of the product produced by the assessee before us also do not disclose the correct description of the product. A detailed examination of the product is required for classifying the commodity. No such exercise is done by the Authority for clarification before giving a finding - Matter remanded back to the ACAR to examine the product in the light of the observations made herein above and to pass a speaking order after providing an opportunity of hearing to the appellant.
Appeal allowed in part - part matter on remand.
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2015 (3) TMI 1366 - ITAT CHANDIGARH
Application u/s 12AA rejected - proof of charitable activity u/s 2(15) - HELD THAT:- It is admitted fact that the receipts of the assessee society are from government departments, sale of tender forms and facilitation charges. The assessee is, therefore, working for the Government of Punjab and as such may not be doing the commercial activity in order to violate the provisions of Section 2(15) of the Act. CIT, at the end of the impugned order noted that since the assessee could not furnish the explanation, therefore, application of the assessee was rejected. The assessee, however, submitted that complete details were filed, therefore there was no justification to reject the application for registration.
We are of the view the matter requires re-consideration at the level of the ld. CIT(Appeals). We, accordingly, set aside the impugned order and restore the matter and issue to the file of Ld. Commissioner of Income TaxII Chandigarh with direction to re-decide registration application in accordance with law - Decided in favour of assessee for statistical purposes.
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2015 (3) TMI 1365 - KARNATAKA HIGH COURT
Interim measure pending resolution of dispute in the pending arbitration proceedings - restraint on appellant herein from bringing or hiring any new machinery, from entering with any other individual or concern for mining, lifting of the iron ore, red oxide or any other mines from the schedule property pending adjudication of the dispute - Section 11(6) of the Arbitration and Conciliation Act.
Whether an injunction in the manner as granted by the Court below is justified or whether the respondent herein can be compensated in terms of money by way of damages andtherefore is the injunction liable to be vacated?
HELD THAT:- Keeping in view Clause 6 contained in the agreement between the parties herein, the attempt made by the appellant to shutout the respondent even before the procedure as indicated in Clause 7 and 8 of the agreement for termination was followed would certainly entitle the respondent for grant of interim measure to protect their right pending the arbitration proceedings. The terms of the agreement and in that regard, the sequence that was followed would indicate that the respondent has made out not only a prima facie case, but the balance of convenience is also in their favour. Though the appellant has contended that the mining lease is sought to be cancelled if the rectification is not made, rectification if any can happen if the respondent is instructed by the appellant to carry out such rectification work. Therefore, in that circumstance, if the appellant is permitted to prevent the respondent from working and as an alternative, the appellant secure any other party to carry out the work, it will cause irreparable injury to the respondent.
A perusal of the order passed by the Court below which is impugned herein would indicate that the Court below in fact has made a detailed consideration of all aspects of the matter relating to grant of interim measure pending consideration of the dispute by the Arbitrator and the decision relied upon by the Court below to arrive at such conclusion is also appropriate - Hence, the order impugned does not call for interference.
Appeal dismissed.
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2015 (3) TMI 1364 - ITAT JABALPUR
Addition by estimating the raw material consumption @ 53% as against 55.22% as per books of account and records - HELD THAT:- As for the AO’s observation that some of the expenditure is supported by self-made vouchers, the mere fact that some expenditure is supported with self-made vouchers can never be reason enough which is sustainable in the eyes of law to reject the books of account as a whole. In case the A.O. was not satisfied about the authenticity of the support for this expenditure, nothing prevented him from exploring the possibilities of disallowance with respect to that expenditure. The course of action he adopted i.e. in rejecting the books of account though only to the extent of consumption of material cannot be given any judicial approval. It is also to be noted that consumption of raw material in year to year even under ideal circumstances can never be the same because there are many variables governing the consumption of raw material. The A.O. was thus clearly in error in resorting to the impugned disallowance.
CIT(A) has also not dealt with any of these aspects but has proceeded with his seemingly erudite discussion on the legal position though without properly establishing the fundamental facts. In view of these discussions and bearing in mind the entirety of the case, we are of the considered view that the authorities below was in error so far as their stand on disallowance of ₹ 33,01,961/- on raw material consumption is concerned. We, therefore, direct the Assessing Officer to delete the impugned disallowance.
Addition of bad debs in respect of NTPC, Rihandnagar - HELD THAT:- The impugned disallowance is devoid of any legally sustainable merit. There is no dispute that this debt was so written off and yet the disallowed is made only because a certificate from the debtor is not produced. The conditions laid down for allowance and bad debt are clearly satisfied in the case and the disallowance, therefore, deserves to be deleted. We direct the A.O. to do so. Ground no.2 is thus allowed.
Disallowance on adhoc basis of various administrative expenses - HELD THAT:- We find that the disallowance is made purely on the basis of surmises and conjectures and without pointing out any specific defects in the vouchers in support of these expenses. We are unable to see any legally sustainable merits in this kind of approach based on sweeping generalisation for making disallowance. We direct the A.O. to delete the same. Ground no.3 is thus allowed.
Disallowance being 5% of the total wages paid as against disallowance being 10% of the total wages paid - HELD THAT:- Disallowance is made purely on the basis of surmises and conjectures and without pointing out any specific defects in the vouchers in support of these expenses. We are unable to see any legally sustainable merits in this kind of approach based on sweeping generalisation for making disallowance. We direct the A.O. to delete the same. Ground no.4 is thus allowed.
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2015 (3) TMI 1363 - PUNJAB AND HARYANA HIGH COURT
Refund of amount seized u/s 226(3) - Administrator of respondent No.4-PUDA was also appointed as the competent authority to recover the regularization dues in respect of the unauthorized colonies on behalf of the State of Punjab - Respondent No.1 contends that it never sought to receive amounts due to the petitioner-State of Punjab towards satisfaction of the fourth respondent’s tax dues - HELD THAT:- The petition is disposed of by setting-aside the order passed by respondent No.1 in so far as the same relates to the dues of the petitioner kept in the escrow or other accounts opened by the Administrator of respondent No.4 but for and on behalf of the petitioner- State of Punjab. The impugned order passed by respondent No.1 will not operate in respect of any other accounts maintained in any name which are for the benefit of the petitioner-State of Punjab. Further, the order passed by respondent No.1 shall also not operate in respect of any accounts, fixed deposits or other investments made out of the accounts which belonged to the petitioner-State of Punjab. The order shall also not operate in respect of any accretion to the amounts.
The amounts shall be refunded by respondent No.1 within 12 weeks from the receipt of a communication by the petitioner specifying the details of the accounts kept by respondent No.4 on behalf of the petitioner and in the name of the petitioner itself.
We would not express any opinion regarding the question of interest including as to whether or not the interest is payable or not to the petitioner and if payable as to which of the respondents is liable to pay the same. The petitioner is given liberty to adopt appropriate proceedings for interest. Mere furnishing of PAN Number of respondent No.4 would not be determinative as to whether the amounts belonged to the petitioner or respondent No.4.
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2015 (3) TMI 1361 - KARNATAKA HIGH COURT
Partition and separate possession of suit property - time limitation - HELD THAT:- An 'ostensible owner' would be a person in whose favour the title deed stands. The real owner may be another. An example would be a benami transaction. If a dispute arises in such cases, the presumption would be that the ostensible owner is the owner. The real owner would have to prove otherwise. If the property is transferred by the ostensible owner with the implied consent or to the knowledge of the real owner, then the real owner would be precluded from questioning the transfer.
But on the facts of this case, the purchasers of the dispute property were Dhanram Modaliar and Venugopal Modaliar. It was the claim of Defendant No. 7 that they were ostensible owners. And the real owner was M/s. Standard Tile and Clay Works Limited. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. Hence, the application of Section 41 of the TP Act does not arise.
Time Limitation - HELD THAT:- There is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence - the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable.
Appeal allowed.
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2015 (3) TMI 1360 - ITAT BANGALORE
Calculation of deduction u/s 36(1)(viia) - as per AR set off of bad debt could be done only against provisions and not vice-versa - HELD THAT:- Similar issue was considered in ING VYSYA BANK LTD. [2014 (9) TMI 44 - ITAT BANGALORE] - All the arguments now raised by the learned DR including the effect of explanation2 to section 36(1)(vii) by Finance Act 2013, were considered in the above order. Accordingly, in the case of assessee also we set aside the orders of the authorities below and direct the AO to examine the claim of the assessee in the light of the discussion of the Tribunal in the case of M/s ING Vysa Bank Ltd (Supra). Ground of the assessee is therefore allowed for statistical purposes.
Disallowance u/s 14A - sufficiency of own funds - HELD THAT:- It is not disputed that assessee had interest free funds of ₹ 21,280.59 Crores with it. Against this, investments that could give rise to tax free income was ₹ 1444.02 Crores. This has not been disputed. Assessee had itself made a disallowance of ₹ 52,88,281.90 being 5% of the exempt income for covering the over head expenditure in relation to earning of the exempt income. In assessee’s own case for assessment year 2010-11 a similar issue had come up before this Tribunal wherein as held there can be no dispute that the interest-free funds far exceeded the investment in tax free securities. Therefore, one has to come to a conclusion that investments in tax-free securities was made out of own funds and therefore, no disallowance in terms of Rule 8D(2)(i) or (ii) of the Rules can be made on account of interest expenditure. AO has completely ignored the submissions made by the assessee in this regard and has blindly applied Rule 8D(2)(iii) of the rules and made disallowance u/s.14A
Deduction u/s 36(1)(viii) being income earned by it on long term finance - HELD THAT:- Whether assessee had indeed made a further creation of special reserve in the succeeding year and also whether such reserves were created before finalization of the grant of deduction u/s 36(1)(viii) had not been verified by any of the authorities below. We therefore, set aside the orders of the authorities below and remand the issue to the file of the AO for fresh consideration in accordance with law.
TDS u/s 194H - payments which were made to National Financial Switch and Cash tree (NFS in short) consortium - Non deduction of tds - Disallowance u/s 40a(ia) - HELD THAT:- We are of the opinion, that the payments made by the assessee to M/s NFS could not be considered as commission or brokerage, in any sense all these terms. Assessee was therefore,not bound to deduct tax on such payments u/s 194H of the Act. Disallowance u/s 40a(ia) of the Act is not warranted. Such disallowance stands deleted.
Depreciation on investment portfolio by treating the investment as stock in trade - HELD THAT:- As decided in assessee's own case for assessment year 2010-11 Preparation of the balancesheet in accordance with the statutory provision would not disentitle the assessee in submitting the Income-tax return on the real taxable income in accordance with the method of accounting adopted by the assessee consistently and regularly. That cannot be discarded by the departmental authorities on the ground that the assessee was maintaining the balance-sheet in the statutory form on the basis of the cost of the investments. No question of following two different methods for valuing its stock-in-trade (investments) because the bank was required to prepare the balance-sheet in the prescribed form and it had no option to change it. For the purpose of income tax as stated earlier, what is to be taxed is the real income which is to be deduced on the basis of the accounting system regularly maintained by the assessee and that was done by the assessee in the present case - method adopted by the banks valuing stock-in-trade (investments) at cost in balance sheet in accordance with the Banking Regulation Act and valuing the same at cost or market value, whichever was lower for income-tax purposes. - Decided in favour of assessee.
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2015 (3) TMI 1359 - ITAT MUMBAI
Shortfall in premium for issuance of equity shares by the assessee to its holding company - deemed loan - computation of fair market value of shares issued by the Indian subsidiary to its holding company and shortfall in premium - HELD THAT:- In the case of M/s Shell India Markets Pvt. Ltd. [2014 (11) TMI 897 - BOMBAY HIGH COURT] has again decided the identical issue by following the Judgment in case of Vodafone India Services Pvt. Ltd. [2014 (11) TMI 897 - BOMBAY HIGH COURT] . Accordingly, following the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd. (supra), we delete the addition made by the authorities below on account of shortfall in premium for issuance of equity shares by the assessee to its holding company has been treated as deemed loan.
Credit of TDS - assessee has already filed a petition u/s 154 for grant of credit for tax deducted at source - HELD THAT:- Since the assessee has already filed a petition u/s 154 for grant of credit for tax deducted at source accordingly, we direct AO to verify the claim of assessed and then pass the appropriate order.
Revision u/s 263 - HELD THAT:- The assessee objected to the proposed enhancement u/s 263 by the Commissioner. Commissioner passed the impugned order holding that the AO failed to make the adjustment towards the benefit of loan advanced by the assessee to its holding company as income in the hands of the assessee and the order passed by the AO is erroneous and prejudicial to the interest of revenue. Commissioner set aside the assessment order and directed the AO to frame the assessment as per the the directions given in the impugned revision order.
AR as well as Ld. DR and considered the relevant material on record. The issue is directly covered by the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd [2014 (10) TMI 278 - BOMBAY HIGH COURT] the relevant finding of the Hon’ble High Court has been produced in the foregoing paras of this order. Accordingly, following the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd. (Supra), we set aside/quash the impugned revision order passed u/s 263 of the Act.
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2015 (3) TMI 1358 - BOMBAY HIGH COURT
Maintainability of appeal u/s 18(1) of SARFAESI Act - non-compliance with the pre-deposit - waiver of statutory requirement - HELD THAT:- When the debtor or guarantor as the case may be, if he prefers the statutory appeal under Section 18 of the SARFAESI Act, he cannot be allowed to shirk his statutory liability as he must be ready and willing to obey and comply with the order as to pre-deposit of the amount as a pre-condition to maintain the appeal - We find in the impugned order that the first respondent/Appellate Tribunal has misguided itself on clear mandate of the law while it wrongly granted complete waiver of the pre-deposit amount to the appellants/respondent, which has not been contemplated under law.
In the interpretation of statutes, the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have obedient effect. The legislature is deemed not to waste its words or to say anything in vain. By an interpretative process, the Court cannot reach a conclusion which makes it impossible for faster remedies provided for under the law to be worked out. The purposive interpretation requires that any interpretation which is unjust or absurd must be eschewed and the Court must adopt principles of reasonable and harmonious construction in consonance with the avowed statutory purpose. The SARFAESI Act was enacted to curb the menace of growing nonperforming assets (NPAs). It affects the banks and financial institutions which is ultimately against the public interest.
Normally there should be a presumption in favour of validity of legislative provision more so in regard to the mandatory provision of law aiming to facilitate the economic and financial matters and a few instances here and there of any harsh results would not be a valid consideration to invalidate or disregard the mandate of law. Hence, the impugned order passed by the first respondent/Appellate Tribunal is absolutely bereft of any statutory power granted to it and therefore, the same needs to be set aside.
Impugned order set aside - Parties shall appear on 15.4.2015 before the Debt Recovery Appellate Tribunal for redressal of their grievance as to non-deposit of the portion of the debt as a pre-condition to lodge a statutory appeal under Section 18(1) of the SARFAESI Act and to invite appropriate reasoned order as to pre-deposit of sum in accordance with law as a mandatory pre-condition to maintain the appeal.
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