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Case Laws
Showing 61 to 80 of 1962 Records
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2017 (3) TMI 1905
Maintainability of petition - availability of alternative remedy of appeal - renewal of lease in mining area - Violation of principles of natural justice - HELD THAT:- In the facts of the present case, it cannot be said that by grant of approval vide order dated 18.11.2011 no right had accrued in favour of the petitioner. From the perusal of the order dated 22.11.2012 by the Divisional Forest Officer, whereby the mining operation of the petitioner had been stopped, it is very clear that after grant of approval on 10.11.2011, the petitioner had commenced mining operation, and once the right of commencement of mining operation had accrued in favour of the petitioner after passing of the approval order dated 18.11.2011, it cannot be said that the grant of approval was mere formality by which the petitioner had acquired no right. As such, we are of the opinion that by passing of the order of approval dated 18.11.2011, a substantive right had accrued in favour of the petitioner, and for revocation of the said order, the authority ought to have complied with the principles of natural justice.
In the present case, from the mere reading of the impugned order dated 08.01.2015, it is clear that the same has been passed on the basis of the communication of the State Government dated 25.01.2014, and no reason whatsoever has been assigned in the order dated 08.01.2015 for revoking the approval granted on 18.11.2011. A perusal of the communication dated 25.01.2014 would also make it clear that though the request was made by the State Government for revoking the forest clearance granted on 18.11.2011 for the use of forest land for an area of 173.039 hectares, in the said letter it was mentioned that the petitioner may be advised to apply for approval of reduced approved lease area of 134.733 hectares, meaning thereby that the objection of the State Government was for an area beyond 134.733 hectares and not for the entire area.
Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority - since in the present case, neither the principle of natural justice has been complied, nor any reason whatsoever has been assigned in the impugned order for revocation of the earlier approval granted on 18.11.2011, we hold that the said order of revocation deserves to be quashed.
The impugned order has been passed in violation of the principles of natural justice, the alternative remedy, even if available, would not come in the way of this Court entertaining this writ petition.
Petition allowed.
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2017 (3) TMI 1904
Addition of income from shareholder’s funds credited directly to the shareholder’s Account - Whether CIT-A erred in his interpretation of Act, the Insurance Act 1938, the IRDA Act and the IRDA (preparation of Financial Statements and Auditor’s Report of Insurance Companies) Regulations 2002, the IRDA (Assets, Liabilities and Solvency Margin of Insurers) Regulations 2000? - HELD THAT:- Issue decided against the assessee by the decision of this Tribunal in assessment year 2009-10 [2013 (6) TMI 377 - ITAT MUMBAI] basic question to be decided in that appeal was whether the assessee could be said to be in default u/s.115-Q of the Act on account of non-payment of tax on distributed profits u/s.115-O of the Act in respect of payment made to central government out of the surplus profit.
After discussing facts of the case and the provisions of the sections 115-O and 115-Q of the Act, Tribunal held that payment made by the assessee to the Central Government could not be treated as dividend within the ambit of definition clause 2(22) of the Act, that provisions of section 115-O of the Act were not applicable, that assessee could not be declared as assessee in default u/s.115 Q of the Act. In our opinion, in the case relied upon by the AR of the assessee, question of taxability of particular items of income under the head income from other sources was not before the Tribunal. Therefore, upholding the order of the FAA we decide Ground of appeal against the assessee.
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2017 (3) TMI 1903
Depreciation on FSI - CIT-A restricting the claim of depreciation on FSI to 10% as against that claimed by the assessee at 25% - HELD THAT:- As respectfully following the decision of the coordinate bench in assessee’s own case[2016 (10) TMI 490 - ITAT MUMBAI] and in order to maintain judicial consistency which is applicable mutatis mutandis in the case of the assesse, we also hold that assesse entitled to depreciation @ 10% on the whole of the consideration towards FSI. In the result, this ground of appeal is dismissed.
Depreciation on intangible assets - running business which. was acquired "slump sale basis" - HELD THAT:- We have considered the aforementioned order in assessee’s own case wherein we found similar ground raised in the aforementioned appeals and identical question involved in the present case has already been decided by the coordinate bench of ITAT Mumbai in assessee’s own case.
Disallowance u/s 40A(2) - claim of interest to the assessee - Addition on the account that Mr. Ajay Ajit Peter Kerker, Chairman of the assessee company was the Director of M/s Cox & Kind India Ltd during the relevant period - HELD THAT:- We have noticed that the Revenue has not placed on record any material or findings of the AO under the identical facts and circumstances that the rate of interest paid as claimed by the assessee is either excessive or unreasonable as laid out in section 40A(2)(b) of the Act, we therefore, respectfully follow the order of Coordinate bench of Hon’ble ITAT, Jaipur bench [2016 (7) TMI 1657 - ITAT JAIPUR] - Keeping in view the above facts and while considering the facts that the AO has not recorded any finding or collected any material to show that the interest paid by the assessee was in excess of the fair market rate of interest. In the circumstances of the present case, we are of the considered view that the claim of interest to the assessee be allowed and delete the disallowance u/s 40A(2).
Disallowance of proportionate of interest u/s. 36(1)(iii) - interest free loans advanced to various parties - HELD THAT:- We find that interest free funds available with the assessee were more than the interest free loans given by the assessee. Further, even the Assessing Officer has not proved any nexus between the borrowed funds and its utilization for providing interest free loans. Therefore, while following the judgment in the case of CIT V. Reliance Utilities and Power Ltd.. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and considering the facts of the present case, we are of the considered view that the Assessing Officer was not right in making the proportionate disallowance of interest u/s 36(1)(iii) of the Income Tax Act. Accordingly, we delete the disallowance made by the Assessing Officer and allow this ground raised by the assessee.
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2017 (3) TMI 1902
Characterization of receipts - income from sale of Certified Emission Reductions (CERs) - capital receipts or Revenue receipts - Whether Tribunal has erred in law and in facts treating the income from sale of Certified Emission Reductions (CERs) as revenue receipt excisable to taxation instead of treating them as capital receipt? - as alleged taxing event had not taken place during the current year, the Tribunal ought not to have proceeded further to examine the taxability in a future year - HELD THAT:- We are of the opinion that as such the Tribunal has materially erred in proceeding further to examine the taxability of the income from sale of CERs in future year. It is not in dispute that so far as the year under consideration for which the appeal was before the learned Tribunal has confirmed the order passed by the learned CIT(A) deleting the addition by observing that no such income has been received by the assessee in the year under consideration as there was neither any sale nor transfer of the carbon receipts in favour of any foreign companies during the year under consideration. Therefore, as such the issue before the learned Tribunal was as such academic.
Therefore, keeping the said question open to be considered in accordance with law in the year in which the income is derived from sale of CERs, Tribunal ought to have disposed of the appeal. At this stage it is required to be noted that even the learned Tribunal has in the impugned order has specifically observed that the learned Tribunal is making observations on the aforesaid issue to show their understanding on the issue and that they have briefly touched the issue. In any case the learned Tribunal ought not to have decided the issue which as such was academic before it.
While quashing and setting aside the observations made by the learned Tribunal with respect to the income derived from carbon receipts and/or on sale of CERs, we hold the question in favour of the assessee and against the Revenue by keeping the said question open to be considered in accordance with law in the year in which the income from sale of CERs is received. Under the circumstances, we hereby set aside the observations made by the learned Tribunal with respect to the income from sale of CERs, made in the impugned judgment and order, however keeping the said question open to be considered in accordance with law and in the year in which the income from sale of CERs is accrued / received.
Disallowance u/s 14A - Appeal ADMITTED to consider the following substantial question of law.
“Whether ITAT has erred in reversing the order of CIT(A) and confirming the order of the AO to the extent of confirming disallowance under Rule 8D r.w.s. 14A?”
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2017 (3) TMI 1901
Seeking condonation of delay of 441 days in filing restoration application - HELD THAT:- There are enough materials on record requiring this court to condone the delay in preferring the connected restoration application.
The prayer for condonation of delay is accepted - Application disposed off.
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2017 (3) TMI 1900
Transfer petition - doctrine of forum non conveniens - domestic violence case filed at Hyderabad, while in-law's house is at Jabalpur - whether an order can be passed so as to provide a better alternative to each individual being required to move this Court? - HELD THAT:- Under the doctrine of forum non conveniens, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice.
Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the Plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed.
One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available, In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person.
Thus, it is directed that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the Defendants/Respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of Defendant/Respondent does not result in denial of justice - the transfer petition is disposed off.
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2017 (3) TMI 1899
Allowing the loss in shares as business loss instead of capital loss - assessee had shown the shares as stock in trade and the AO u/s. 143(3) of the Act for AY 2008-09 has accepted it as stock in trade and, therefore, the assessee has shown the scrips in question as opening stock in trade as on 01.04.2008 - HELD THAT:- Since there is no change in facts from the earlier assessment year and when in the earlier year AO is permitting the treatment given by the assessee for the very same shares as stock-in-trade, then in the instant assessment year without change in the facts or law, the AO ought not to have treated the shares as investment and not as stock-in-trade.
The CBDT Circular No. 6 of 2016 on 29.02.2016 has noted the dispute which consistently arose in respect to treatment of trading of shares as business or investment in shares. From a perusal of para 3(a) of the said circular, we note that the CBDT has given clear direction that where the assessee has treated the listed shares and securities as stock-in-trade, irrespective of the period of holding, the income arising from transaction of such shares/securities would be treated as its business income.
The only condition expressed by the CBDT Circular is that once the assessee has taken a stand in an assessment year that he is trading in shares as business, or as investment, then he should not change, which means that the assessee should be consistent. We note that the assessee in AY 2008-09 has treated the said five scrips purchased as stock in trade which was accepted by the AO and the same was the opening stock for the instant assessment year i.e. as on 01.04.2008, therefore, as per the Circular of the CBDT, since the assessee has taken a stand that the shares are stock in trade then irrespective of the time of holding, the income arising from the transaction of such shares needs to be treated as business income. Therefore, the Ld. CIT(A) has rightly treated the same as business income and we do not find any infirmity in the order of the ld. CIT(A) and, therefore, we dismiss this ground of appeal of the revenue.
Interest income as business income in place of income from other sources as held by the AO - HELD THAT:- From the assessment order, we do not find any discussion by the AO on treating the interest income as income from other sources. During the appellate proceedings, it was brought to the knowledge of the CIT(A) that the assessee is also in the business of granting of loans and advances, therefore, the interest income has to be treated as income from business and not from the other sources.
All throughout the earlier years the interest income of the assessee was consistently being accepted by the AO as business income and that only in this year there was a somersault done on this issue and that too without confronting the assessee in case the AO had any reservation on this issue.
CIT(A) also took note of the fact that there is not even a single word or reason in the assessment order to depart from the consistent view followed by the department and to change the view to treat the interest income as income from other sources there should be some change in facts or law, which is admittedly absent in this case. When the fact remains that the assessee is into the business of granting loans and advances, certainly the interest income of the assessee would be business income and the Ld. DR was unable to controvert the said fact before us. Therefore, we do not find any infirmity in the order of Ld. CIT(A) and we dismiss this ground of appeal of the revenue.
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2017 (3) TMI 1898
Seeking removal of trespass committed on the land - Section 4(2) of the Madhya Pradesh Public Premises and Devasthanam (Regulation) Act - HELD THAT:- The need to remand the case is called for because it is found that the High Court while dismissing the Appellant's first appeal recorded a finding that since the Appellant (plaintiff) failed to prove his ownership over the suit land inasmuch as the Plaintiff did not examine his vendor to prove his sale deed, the Trial Court was not justified in decreeing the Appellant's suit and granting declaration of ownership in his favour in relation to the suit land. In other words, the High Court was of the view that it was obligatory upon the Appellant (plaintiff) to prove his title by examining his vendor and since it was not done, the decree passed by the Trial Court in Plaintiff's favour was not legally sustainable. This finding of the High Court resulted in dismissal of the appeal and the suit as well.
Assuming that the High Court was right in its view, it should have given an opportunity to the Appellant to prove his title by allowing him to adduce proper evidence in support of his case and for that, the High Court should have remanded the case to the Trial Court for retrial of the suit. It was more so because it is found that the Appellant suffered more damage to his case in prosecuting his own appeal. In the absence of any challenge laid by the Defendants to the part of the decree passed in Plaintiff's favour by the Trial Court, the appellate Court virtually passed the order in Respondents' (defendants) favour in Appellant's appeal.
The High Court having held that the Plaintiff was not able to prove his title to the land in the suit due to non-examination of his vendor, all that the High Court, in such circumstances, should have done was to remand the case to the Trial Court by affording an opportunity to the Appellant to prove his case (title to the land) and adduce proper evidence in addition to what he had already adduced. This, the High Court could do by taking recourse to powers under Order 41 Rule 23A of the Code of Civil Procedure.
Since it is found that the case at hand is against the State Government and local bodies, it is the duty of the Court to make, in the first instance, every endeavor to assist the parties to settle in respect of subject matter of the suit and, if for any reason, settlement is not arrived at then proceed to decide the suit on merits in accordance with law.
Appeal allowed.
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2017 (3) TMI 1897
Maintainability of petition - Oppression and Mismanagement - lifting of Corporate Veil - HELD THAT:- The appellant shall have the right to take all points including the point of tearing of the corporate veil so far as the Section 397/398 Petition is concerned.
Further, the subsidiary companies against whom the appellant has not made any allegations in the Petition and no relief has been sought for against need not be added as parties. However, Respondent Nos. 8, 9, 13, 14, 16, 17 and 18 and Respondent Nos. 4 and 7 should be added as parties and the appellant shall be at liberty to argue on the grounds in the said Petition and the prayer regarding the alleged mis-management of the companies in question in case the corporate veil is lifted. The Section 397/398 Petition is maintainable as the appellant holds 10% of the share capital in the holding company.
Appeal disposed off.
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2017 (3) TMI 1896
Deduction u/s 80IA(4) - Claim denied as assessee was not engaged in development of new infrastructure project - whether merely increasing the thickness & widening of an existing road would not qualify as a new infrastructure project ? - HELD THAT:- We do not agree with the authorities below that it is merely work of the maintenance and repairs but in fact it is a work of bringing into existence new infrastructure facility which is in the nature of road. We, therefore, allow the ground taken by the assessee and hold that the assessee is entitled for deduction u/s 80IA(4) of the Act and direct the Assessing Officer to allow deduction to the assessee - As deduction u/s 80IA (4) is liable to be allowed and ground of appeal no. 1 raised by the appellant is allowed.
Disallowance of interest income earned by the appellant-company on account of fixed deposits created as Debt Service Reserve Account against the term loan taken for the purpose of business - HELD THAT:- Revenue has not placed any material on record to point out any distinguishing feature in the facts of the case under consideration and the facts in assessee’s own case for A.Y. 2006-07 nor placed any material on record to demonstrate that the decision of Tribunal in assessee’s own case for A.Y. 2006-07 [2013 (4) TMI 758 - ITAT PUNE] has been set aside by the Higher Judicial Authorities.
With respect to the interest income being eligible for deduction u/s 80IA(4), we find that Ld. CIT(A) has given a finding that the fixed deposit was an essential part for availing the loan whereby assessee was required to maintain Debt Services Reserve account and for that purpose it had to necessarily place fixed deposit and on such fixed deposits the assessee had earned interest. He therefore held it to be connected with the business of the assessee. CIT(A) thereafter relying on the various decisions cited therein has allowed the claim of the assessee. Before us, Revenue has not placed any material on record to demonstrate that as to how the decisions relied upon by Ld. CIT(A) would not applicable to the present facts of the assessee. Considering the totality of the aforesaid facts, we find no reason to interfere with the order of Ld. CIT(A) and thus the grounds of the Revenue are dismissed.
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2017 (3) TMI 1895
Imposition of travel restrictions on a defaulting borrower/guarantor - whether the Tribunal constituted under the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 has the power in terms of the provisions of the said Act to impose travel restrictions on a defaulting borrower/guarantor ? - HELD THAT:- Supreme Court in the case of Allahabad Bank, Calcutta [1999 (9) TMI 767 - SUPREME COURT], referring to Sections 19(6) (as existed) [presently Section 19(12)] and 22(1) has held that the Tribunal is not bound by the procedure laid by the Code of Civil Procedure. The Tribunal can travel beyond the Code of Civil Procedure and the only pre-condition is that it has to observe the principles of natural justice. The power of the Tribunal under sub- section 6 of Section 19 to pass injunction or stay orders is not exhaustive but the width and amplitude of the powers can be gathered from Section 22(1). The Supreme Court also observed Rule 18 of the Tribunal enables the Tribunal to pass orders to secure ends of justice.
The Tribunal has in the penultimate para held that there is no material to show to the Tribunal that if the respondents 1 and 2 are permitted to travel abroad, they are not likely to return back. The same is a finding of fact and nothing has been shown to us nor any material placed in support of this stand of the petitioner Bank.
There are no merit in the present petition. The same is dismissed.
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2017 (3) TMI 1894
Revision u/s 263 - Credit for tax deducted at source for the purposes of section 199 - Revenue has primarily relied on the findings of the Commissioner of Income Tax and stated that ld CIT has rightly exercised the jurisdiction u/s 263 and also submitted that as per section 199 read with Rule 37BA (3)(i), the TDS claimed by the assessee should not be allowed, that is, only those TDS should be allowed which pertain to the income declared by the assessee for the assessment year under consideration - HELD THAT:- We are of the view that there is merit in the submissions of ld DR for the Revenue, as his propositions are supported by the provisions of section 199 of the I.T. Act, read with Rule 37BA (3) of the Income Tax Rules,1962 - as per Rule 37BA(3) (i) the Credit for tax deducted at source(TDS) and paid to the Central Government, shall be given for the assessment year for which such income is assessable. The TDS pertains to advances should not be claimed by the assessee or may be claimed by the assessee in the assessment year in which said advances get converted into income.
Considering the factual position explained above, we are of the view that order passed by the ld CIT U/s 263 does not contain any infirmity and accordingly, we confirm the order passed by the ld CIT u/s 263 of the Act - Decided against assessee.
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2017 (3) TMI 1893
Time Limitation - actual infringement for a right to sue to accrue - Section 9A of the Code of Civil Procedure, 1908 - HELD THAT:- The evidence of Dhar on this is entirely unconvincing. He claims to have known nothing of this till he was told about these filings by Madhukar, whose evidence was not led. We do not know why. This is surely no basis on which to proceed on a mixed question of fact and law. The plaint says that the 2002 filings were ones that Messer Holdings saw on 26th April 2005. There is nothing at all to support this. There is nothing to explain why from 2002 to 2005 with all these litigations at various stages Messer Holdings did not check these filings. In 2003 Messer Holdings filed Appeal No. 855 of 2003 and demanded disclosure of the Settlement Agreement.
Messer Holdings is a stranger to the Settlement Agreement. It is of no consequence to Messer Holdings whether that document is cancelled or not; it must get a declaration that it is not bound by that document (to which it is not a party). The case cannot, therefore, fall under Article 59 at all.
Even after holding that the prayers as time barred, the present suit have to be numbered as a Commercial suit. Registry is directed to have that done. All the requirements of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 will apply. Ordinarily, this would mean the application of the amended provisions of Sections 35 and 35A of the CPC (as amended by the Commercial Courts Act) and that, in turn, would mean that costs must follow the event. The proviso inserted by the amendment requires me to give reasons for not imposing costs.
Application disposed off.
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2017 (3) TMI 1892
Nature of land sold - agricultural land or capital asset - distance of agricultural land from the nearby municipality - Addition of amount received from sale of agricultural land under the head “capital gain” - On the basis of information obtained from MMRDA, the Assessing Officer concluded that the assessee’s claim that the agricultural land cannot be treated as capital asset under section 2(14)(iii) is not acceptable - whether the distance between the agricultural land sold by the assessee is within the prescribed limit of 8 kms. of municipal limit as provided under section 2(14)(iii)? - HELD THAT:- Distance measured by the competent authority is by the method of shortest road distance. On a reading of section 2(14)(iii) of the Act, we have noted that the distance as per sub–clause (b) is to be measured aerially. However, such amendment brought to the statute is effective from 1st April 2014. By way of further clarification, the CBDT has issued Circular no.17 of 2015 dated 6th October 2015, wherein, it has been clarified that the measurement of the distance aerially is to be applied from the assessment year 2014–15 and not to the prior assessment years.
Thus keeping in view the letter dated 2nd February 2016 of the competent authority and the CBDT circular referred to above, prima–facie it appears that the agricultural land situated at Village Vardoli may not be coming within the definition of capital asset in terms of section 2(14)(iii) of the Act. Therefore, the assessee’s claim of exemption, at least, in respect of the agricultural land situated at Village Vardoli appears to be valid. However, since the certificate issued by the competent authority specifying the distance have not been examined keeping in view the CBDT circular referred to above, we are inclined to set aside the impugned order of the learned Commissioner (Appeals) and restore the matter back to the file of the AO to verify assessee’s claim on the basis of the certificate issued by the competent authority as well as CBDT Circular no.17 of 2015. We must observe, the Assessing Officer should afford reasonable opportunity of being heard to the assessee and pass a speaking order dealing with the objections / submissions of the assessee on the issue. Assessee’s appeal allowed for statistical purposes.
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2017 (3) TMI 1891
Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - cheque issued as a security for performance of agreement or not - cross examination of the witnesses or not - HELD THAT:- This Court was unable to find out any record adduced by accused/petitioner suggestive of the fact that sale deed, if any, was executed between the parties pursuant to agreement Ext.D1. Hence defence as taken by accused/petitioner under Section 313 Cr.P.C. was rightly not taken into consideration by learned Courts below while holding petitioner guilty of having committed an offence punishable under Section 138 of the Act - Conjoint reading of evidence and documents placed on record clearly establish on record that complainant had advanced an amount of Rs. four lacs to accused on understanding that he would return the same within stipulated period. Similarly this Court after carefully examining the cheques Ext.CW2/A and Ext.CW2/B is convinced that these were issued by accused/petitioner towards his liability to repay the amount. Careful perusal of Ext.D1, leaves no doubt in the mind of Court, that amount as referred was paid by complainant to accused and he in discharge of his liability issued cheques, which were ultimately dishonoured.
This Court with a view to ascertain the genuineness and correctness of argument having been advanced by learned counsel for the accused/petitioner that there was no lawful consideration, carefully examined the entire evidence, which clearly suggests that there is no merit in aforesaid argument of learned counsel representing the petitioner - Bare perusal of Ext.D1, which was tendered in evidence by petitioner himself, proves on record that he had taken amount from the complainant and had issued two cheques for discharging his liability.
There are no illegality and infirmity in judgments of conviction recorded by learned Courts below, which are certainly based upon correct appreciation of evidence adduced by parties and as such, present petition is dismissed - petition dismissed.
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2017 (3) TMI 1890
Maintainability of revision petition - summoning of accused - order of intermediatory or quasi-final in nature and not interlocutory in nature - Whether the impugned orders passed by the learned Magistrate taking cognizance of the offences mentioned in the complaints filed by the Labour Department against the petitioner as an individual without making the Company, in which he is a member on Board, are maintainable? - HELD THAT:- A perusal of the complaints shows that the petitioner is arraigned as an accused in his individual capacity, although his position as a Director in the Company is mentioned. It is one thing to say that the Company is the accused represented by its Director and it is another to say that an individual being described as a Director in a particular Company satisfies the requirement of law. An individual can be a member on the Board of several Companies. Unless a Company, which is a juristic person, is arraigned as a party, the Labour Department could not have initiated prosecution only against an individual.
In the circumstances, respectfully following the Authority in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT], the complaints filed by the Senior Labour Inspector qua an individual without the Corporate entity being made as a member, were not maintainable.
Petition allowed.
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2017 (3) TMI 1889
Grant of stay against recovery - HELD THAT:- The interim order shall continue till the Tribunal considers the petitioner’s application for interim reliefs and for a period of two weeks thereafter in the event of the order being adverse to the petitioner. This, however, is provided that the petitioner files the appeal and takes out an application for interim reliefs before the Tribunal by 31.03.2017. The Tribunal shall consider whether to permit the petitioner to rely upon the pleadings in this petition which includes the replies of the respondents as well.
Petition disposed off.
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2017 (3) TMI 1888
TDS u/s 195 - Disallowing software purchased by way of imports 40(a)(i) on account of non deduction of TDS - Whether payments made for software purchased by the assessee amounted to “royalty’ as envisaged in Explanation 3 to section 9(1)(vi)? - CIT-A deleted the addition - HELD THAT:- Perusal of the agreement suggests that neither there was any transfer of copyright nor the vendor has given any permission for commercial exploitation of the copyright of the software. No source codes etc have been supplied by the vendor to the assessee. There is no permission given to the assessee to make any modification or re-engineering of the software, which was supplied for the limited purpose of internal use of the assessee. Ownership with regard to title and interest in the licensed software is retained by the supplier.
It is noted that in the case of Shinhan Bank vs DDIT [2016 (7) TMI 1432 - ITAT MUMBAI] similar situations arose before the Mumbai bench of the Tribunal wherein the AO had disallowed the deductions claimed by the assessee on account of payment made for purchase of software u/s 40(a)(i) for non deduction of tax at source u/s 195 by the said assessee. Hon’ble Bench examined latest legal position in this regard and held that impugned payments were not liable to the taxed as ‘royalty’ in the hands of payees (i.e. suppliers) and therefore, no tax was required to be deducted at source and thus no disallowance could have been made u/s 40(a)(i).
Identical situation came up in the case of CIT vs Vinzas Solutions India (P) ltd [2017 (1) TMI 1102 - MADRAS HIGH COURT] wherein the department invoked provisions of section 40(a)(i) by treating the amount of purchase of software as ‘royalty’ under Explanations 4 and 5 of section 9(1)(vi) of the Act and the assessee in the said case was a dealer engaged in buying and selling of software products in the open market. It was contended on behalf of the assessee before the Hon’ble High Court that the transaction in question was one of purchase and sale of product and nothing more.
Thus we find that it was rightly held by Ld. CIT(A) that TDS was not required to be deducted in this case. Therefore, disallowance made by AO by invoking provisions of section 40(a)(i) has been rightly deleted by Ld. CIT(A). No interference is called for in his order and therefore, the same is upheld. - Decided against revenue.
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2017 (3) TMI 1887
Levying penalty u/s 271(1)(c) - assessee has concealed its income and has furnished inaccurate particulars thereof - AO estimated the profit at the flat rate of 8% and determined the assessment - HELD THAT:- We find, there is no dispute on the fact that the additions made by the AO certainly involves estimations. It is a settled legal proposition in such matters the penalty u/s 271(1)(c) of the Act is not excisable in respect of the ad-hoc additions involving estimations. Accordingly, we are of the considered opinion that this is not a fit case for levy of penalty. Accordingly we order. Thus, grounds raised by the assessee are allowed.
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2017 (3) TMI 1886
Acquiring of assets disproportionate to the source of income - cause of action has arisen within the territorial jurisdiction of this Court - whether the two Preliminary Enquiries registered in the present case pertain to the same incident or form part of the same transaction? - HELD THAT:- There is absolutely no basis for entertainment of the apprehension expressed by the petitioners to decide the present petition entirely on its merits, and merits alone. There is no justification for, or reasonableness in entertainment of any such belief by the petitioners.
There are no control over the thought process through which the petitioners may be going through. The issue is, whether there is any reasonable basis for the apprehension entertained and expressed by the petitioners with regard to the independence, nothing at all was found. Moreover, the said prayer has been made highly belatedly i.e. after the close of the hearing, even though the stated reasons for making his prayer were very much available even before the start of the hearing of the case. Accordingly, the prayer made by the petitioners that the case is rescued, is rejected.
In SUPERINTENDENT OF POLICE, C.B.I. AND ORS VERSUS TAPAN KR. SINGH [2003 (4) TMI 593 - SUPREME COURT], before the High Court of Calcutta, the accused successfully assailed the search & seizure carried out by the CBI, on the premise that the GD entry contained vague allegations and did not disclose commission of any cognizable offence. While holding that a General Diary Entry may also be considered as a FIR if it discloses the commission of a cognizable offence, the High Court held that in the said case before it the GD entry, could not be considered to be a First Information Report. It further held that subsequent registration of the First Information Report could not validate the search & seizure undertaken prior to such registration.
The First PE, the Second PE and the RC need to be examined as also the status reports filed by the CBI in the Common Cause PIL may be looked at. The petitioners have sought the disclosure of the contents of the Status reports filed by the CBI from time to time during the hearing of the Common Cause PIL. The CBI has not opposed the said prayer of the petitioners - so far as perusal of the said status reports by this Court, is concerned.
What the Status Reports in the Common Cause PIL say - HELD THAT:- There is a final status report in relation to the First PE dated 29.08.2014 placed on record. This final status report also narrates the findings of the preliminary enquiry premised on the complaint made by Mr. Prashant Bhushan, Advocate against the petitioner no.1 herein, which was also included within the ambit of the First PE. This status report also records that the Manager - Accounts of M/s IIL admitted to have made entries in the excel sheets on the instructions of Director, Corporate Affairs and ED, Finance of M/s IIL and other persons as recorded against the entries. However, the same had been denied by the mentioned individuals - the status reports filed by the CBI during the proceedings of the common cause PIL are no different from the factual narration contained in the Second PE. During the course of the First PE, the complaint of Mr. Prashant Bhushan, Advocate – followed by the common cause PIL, surfaced. Both of them sought to link the disclosure of the abbreviation “VBS” in the Excel Sheets recovered by the Income-Tax authorities during raid on the premises of M/s IIL with the petitioner no.1, and also contained other allegations to suggest the trail of the money, allegedly received by petitioner no.1 herein from M/s IIL, to the purchase/ acquisition of LIC policies in the names of the petitioners and their family members by showing the source of the funds as horticultural income.
The submission with regard to lack of territorial jurisdiction of the learned Special Judge to deal with the regular case registered at Delhi is concerned, the same has no merit at all. This is for the reason that, firstly, the check period relates to the service rendered to petitioner No.1 at Delhi as a Union Minister i.e. when the offence was allegedly committed. The allegation against the petitioner No.1 is that he was possessed of assets disproportionate to his known sources of income while serving as a Union Minister during the check period at Delhi. Secondly, one of the known sources of income – which is an essential ingredient of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act, was undisputedly at Delhi, since the petitioner No.1 drew his salary as a Union Minister during the check period at Delhi.
The issue is not whether the FIR/RC in the case could have been registered within the jurisdiction of the Special Judge in Himachal Pradesh. The issue under examination is, whether the same has, in fact, been registered within the jurisdiction of the competent Special Judge. An accused cannot dictate to the prosecution that the case should be registered at a police station that he desires. The case may be registered at any one of the police stations within whose jurisdiction the same can be legally instituted.
The present is not a writ petition preferred by the State of Himachal Pradesh. The State of Himachal Pradesh cannot seek to advance submissions which have not even been raised by the petitioners. This Court is not obliged to deal with them, since the contesting respondent i.e. the CBI has not been called upon to meet the submissions of the State of Himachal Pradesh. Even otherwise, the present is not a petition raising a Centre-State dispute, which can be adjudicated only by the Supreme Court under Article 131 of the Constitution.
Petition dismissed.
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