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Showing 61 to 80 of 1359 Records
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2015 (4) TMI 1307
Principles of Natural Justice - input tax credit reversed without giving any notice or opportunity to the petitioner - HELD THAT:- A perusal of the five line impugned order does not whisper about the issuance of notice whatsoever to the petitioner. The learned Government Advocate for the respondent was unable to reply literally, as the impugned order does not indicate the issuance of any notice. Therefore the impugned order, which has been passed in violation of the Section 84 of the Tamil Nadu Value Added Tax Act mandating an opportunity of personal hearing, is set aside and the matter is remitted back to the respondent to pass a speaking order after giving an opportunity of personal hearing to the petitioner.
Petition allowed by way of remand.
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2015 (4) TMI 1306
Addition u/s 68 - genuineness of the transactions alleged to have been the basis for the credits claimed had not been proved - Admission of additional evidence - HELD THAT:- It is an established matter of record that in appellate proceedings before the CIT (A), the assessee had produced copies of the balance sheets, profit and loss statements and bank accounts pertaining to the concerned parties, i.e., M/s Alter Investments Pvt. Ltd.& M/s Illac Investments Pvt. Ltd. This was in addition to the extracts of its own ledger records to say that there was regularity in the transaction between those parties and consequently all these credits were through normal banking transactions. In these circumstances, we are of the opinion that the
CIT (A) could not have proceeded to adjudicate on the rights of the parties and return the findings that he did on the basis of the materials which existed. Whilst, the assessee may be within its rights in saying that additions under Section 68 were not sustainable, at least, the CIT (A) should have enquired into the materials placed on the record and should have duly considered them. In the light of the above findings, the impugned order of the ITAT and CIT (A) are set aside. Additional documents produced by the assessee are directed to be taken on the record and duly considered.
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2015 (4) TMI 1305
Search and seizure - survey - It is the contention of the Revenue that since the assessee as well as its directors have a close and live link with Purti Group of companies, therefore, a survey under Section 133 A was carried at the business/factory premises of the assessee at Alwar simultaneously - HELD THAT:- The exercise of power under sub-section (1) and sub-section (2) of Section 127 of the Act comes with certain procedural requirements, namely, of granting a reasonable opportunity of being heard in the matter, of recording of reasons for passing such order and communicating such reasons to the assessee. Subject to fulfillment of such procedural requirements, the authority under Section 127 enjoys considerable discretion while exercising the power contained in sub-section (1) or sub-section (2) thereof. Such discretion, in our view, of-course has to be exercised for achieving the public purpose and not for any arbitrary or irrelevant consideration. On the other hand, it can also be seen that transfer of a pending case from one AO to another AO outside the State is likely to cause considerable inconvenience to an assessee. Therefore, even though an assessee may not have a vested right to insist that his assessment be completed only at one place or by a particular AO, nevertheless, the reasons for transfer must be weighty enough to offset against such personal inconvenience of an assessee.
It is well settled that judicial review against the administrative orders in exercise of writ jurisdiction, the court is concerned with the decision making process and not the final decision itself. Unless the reasons which prompted the competent authority to transfer the case can be stated to be wholly irrelevant or arbitrary, the Court would not interfere with such reasons.
There are no infirmity in the order impugned passed by the ld. Single judge so as to call for interference by this Court in the instant intra-court appeal - appeal dismissed.
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2015 (4) TMI 1304
Penalty u/s 271(1)(c) - addition made on account of estimation of GP rate - Rejection of books of accounts - Amount treated as income in respect of which particulars have been concealed - HELD THAT:- As seen that out of total turnover of 31.22 crores, the export sales is at 31.20 crores. Thus, the major sales is by way of export only. In the quantum proceedings, the assessee has filed the entire quantitative details of purchases, in which no discrepancy has been found and entire purchases stood verified.
Also evident from the fact that the assessee has claimed rebate under the Central Excise, therefore, the said purchases have been verified by the excise department also. There is no discrepancy either in the quantity or in the value of sales made by the assessee - Addition has been made on the ground that there is steep fall in the gross profit rate as compared to the earlier years.
The assessee’s case was that, same was due to decrease in sales realization due to devaluation of foreign exchange along with increased in cost of production. The assessee’s explanation regarding fall in foreign exchange has been not been accepted completely on the ground that the average fall of US $ was not much. This cannot be reason for rejecting the assessee’s books and estimating the gross profit unless no discrepancy has been found either in the quantity in value of purchase and sales. Thus, mere estimation of gross profit at 10% which has been further reduced to 7%, cannot be the basis for levy of penalty for furnishing of inaccurate particulars - Decided against revenue.
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2015 (4) TMI 1303
Grant of anticipatory bail - Maintainability of application before High Court - Whether it is essential that a person/accused before approaching the High Court for grant of anticipatory bail u/s 438 of the CrPC and grant of bail u/s 439 of the CrPC should exhaust his remedies before the Sessions Court and then file application before the High Court?
HELD THAT:- There is great deal of increase in the number of filing of bail application directly before this Court and it is consuming a large chunk of the judicial time for disposal of bail applications. Almost 2-3 benches are regularly constituted to deal with the bail applications. There is huge pendency of criminal appeal before the Division Bench, and criminal appeal, criminal revision and criminal petition(482 of the CrPC) before the Single Judge, besides there is huge pendency of civil appeals. Not usually this High Court has always functioned with full sanctioned strength. There are currently three outlying benches where Judges have to be deputed to deal with the work at the outlying benches - It is therefore necessary that normally a person/accused should file an anticipatory bail application u/s 438 of the CrPC or a bail application u/s 439 of the CrPC before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court.
The following are the circumstances under which a person/accused can directly approach the High Court. However, circumstances are illustrative and not exhaustive. There could be other exceptional circumstances which would always depend upon the facts and circumstances of each case:
(i) When a person/accused from other State has to move an application for grant of anticipatory bail u/s 438 of the CrPC, if it is convenient for him to move such application before the High Court directly, which is nearer from the point of distance, in such a case the application filed before the High Court need not be rejected on the ground that he can approach the Sessions Court unless the Sessions Court is also located in the same place.
(ii) Whenever in a Sessions' jurisdiction a particular incident or crime has attracted a lot of public and media attention with an adverse public opinion having been built up against the person/accused, in such cases the 438-CrPC-applications and 439-CrPC-applications can be filed directly before the High Court.
(iii) When the Sessions Court has already rejected an application for grant of bail u/s 438/439 of the CrPC where one of the persons/accused is similarly placed it is not necessary that the similarly- placed person/accused should approach the Sessions Court for grant of bail, he can file an application before the High Court u/s 438/439 of the CrPC.
Thus in brief, normally a person/accused should exhaust his remedy u/s 438 or 439 of the CrPC before the Sessions Judge before making an application before the High Court u/s 438 or 439 of the CrPC. However in exceptional illustrated circumstances a person/ accused can approach the High Court without exhausting his remedy before the Sessions Judge.
Grant of Bail - offence u/s 387, 507, read with section 34 of the IPC - HELD THAT:- It appears that grave allegations are made in the complaint. The petitioner has filed an application without exhausting his remedy of filing an application before the Sessions Court. For the reasons stated above it is just and necessary that the petitioner should exhaust his remedy before the Sessions Judge and thereafter approach the High Court. Accordingly the petition is disposed of - The fee of the amicus curiae is fixed at ₹ 7000/- each, which will be paid to them by the State.
Petition disposed off.
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2015 (4) TMI 1302
Reopening of assessment - Unexplained cash - non disposal of objections raised by the assessee against the issuance of notice u/s 148 - HELD THAT:- In the instant case, it is not in dispute that the assessee filed his objections against the issuance of notice u/s 148 of the Act vide his letter dated 11.11.2009 which was received by the office of the Assessing Officer on 16.11.2009. AO passed the impugned re-assessment order on 20.11.2009, disposing off the objections to re-assessment proceedings of the assessee in the order itself.
Thus, these facts show that the objections raised by the assessee against the issuance of notice u/s 148 of the Act were not disposed off by the AO by passing a speaking order thereon and allowing reasonable time to the assessee after communicating the fate of the objections before proceeding with the re-assessment.
As relying on General Motors India P. Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT] we are of the considered view that the impugned order of re-assessment passed by the Assessing Officer without disposing off the objections raised by the assessee against the issuance of notice u/s 148 by a separate order is liable to be quashed. We order accordingly. Thus, this ground of appeal of the Revenue is dismissed.
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2015 (4) TMI 1301
Validity of N/N. 8(RE 2006)/2004-2009, dated 12th June, 2006 of the Directorate General of Foreign Trade, Government of India - HELD THAT:- This petition is disposed off in accordance with the judgment aforesaid of the High Court of Punjab and Haryana in ESCORTS LIMITED VERSUS UNION OF INDIA [2009 (5) TMI 999 - PUNJAB AND HARYANA HIGH COURT], where it was held that the notification impugned in this petition to be ultra vires so far as it gives retrospective effect, and with a direction to the respondents to, within three months herefrom, assess the impact thereof vis-à-vis the petitioner and to communicate the same in writing to the petitioner and to, if the petitioner in terms thereof is found entitled to any further relief, grant the same to the petitioner.
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2015 (4) TMI 1300
Stay petition - Requirement of depositing ₹ 50 crores as a condition for the stay - HELD THAT:- Application afresh and pass an order with regard to the condition for stay. To enable the Tribunal to do so, the impugned order is set aside. The stay application is restored and the same be listed before the Tribunal in the first instance on 01.05.2015. We make it clear that the revenue shall be permitted to make its stand clear with regard to the demand that is outstanding and they shall be entitled to raise their objections to oppose the grant of stay. WP allowed.
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2015 (4) TMI 1299
Oppression and mismanagement - siphoning of funds - invocation of Section 237(b) of the Companies Act - dismissal of the petition sought contending that no case for passing an order to the Central Government to appoint an Inspector for investigation into affairs of the Company is made out as contemplated in Section 237(b) of the Act - time limitation - HELD THAT:- There is apparent delay in filing the petition, which has not been explained by the petitioner. It is a settled proposition of law that the doctrine of delay and laches is applicable to the proceedings under the Companies Act filed before the CLB - thus, the petition also suffers from delay and laches and deserves to be dismissed on this ground also.
Whether a case is made out under section 237(b) of the Act to pass an order for investigation into affairs of the Respondent No. 1 Company? - HELD THAT:- The provisions contained in Section 237(2) of the Act do not permit a fishing expedition into the affairs of a company. The allegations of the petitioner primarily rest on an isolated transaction of 2008 appearing in the balance-sheet of the Respondent No. 1 Company and in my judgment, this is not a sufficient ground to warrant an order for investigation into the affairs of the Company. Further, taking into consideration the most pertinent fact that the Respondent No. 4 has not come forward to file its reply, nor rebutted the fact of having received back the amount-in-question, it is established that the Respondent No. 1 Company has paid back the amount to the Respondent No. 4 as shown in its Books of Accounts - It has been held in various decisions that the powers conferred on the CLB under Section 237 of the Act are ought to be exercised carefully on proper facts and circumstances considering its far-reaching consequences. Therefore, no case as alleged by the Petitioner, is made out.
There are no merits in the petition - petition dismissed.
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2015 (4) TMI 1298
Sale of property - what is essentially urged is the property to be sold to the applicant on applicants ready and willing to purchase the same at the price mentioned thereunder - HELD THAT:- The grounds for such a prayer are that despite repeated attempts, the property is not being sold and even the value of the property offered which is commensurate with the existing Jantri rate, Court be appropriate for granting relief prayed in this application.
This Court is of the considered view that the order of such nature would ordinarily be not rejected straightway, as there cannot be any objection to treat such offer to be an offer, which would give fair and appropriate valuation for seeking further valuation and setting up appropriate upset price based whereupon the bids can be invited from the open market and in such an eventuality, it is always open for the applicant to put forward its offer. Therefore, at this stage, while rejecting this application, Court is inclined to issue following direction to the official liquidator.
Application disposed off.
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2015 (4) TMI 1297
Rectification of Mistake - error apparent on the face of record - Valuation of goods - extended period of limitation - HELD THAT:- On the time bar issue and invocation of extended period, it is observed that this Bench has given detailed findings in Para 7 of the order dated 24-7-2014, after perusal of records which also included the judgments relived upon by the appellant in Para 2 of the order dated 24-7-2014, passed by this Bench. The time bar aspect and invocation of extended period is a mixed question of Law and facts which has to be seen with respect to the facts of each case - There does not seem to be any mistake apparent from the case records with respect to this aspect and ROM filed on this account needs rejection.
Valuation of goods - HELD THAT:- It is observed from Paras 37, 38 and 38.1 of the Order-in-Original No. 18/Commissioner/2010, dated 8-4-2010 - 27-4-2010, that adjudicating authority has given detailed findings as to why the data furnished by the appellant is not acceptable. The order passed by the adjudicating authority on this aspect is well reasoned, feasible and legal and is upheld.
So far as contention raised at Para 2(iii) is concerned, it is observed from Para 35 of the Order-in-Original passed by the adjudicating authority that Brass Rods are classifiable under Tariff Heading 7407 21 20 of the Central Excise Tariff Act, 1985. Further as par Clause (xxiv)(A)(C) of the Annexure to Notification No. 8/2003-C.E., dated 1-3-2003 Tariff Headings 7407 21 20 has not been excluded from the list of specified goods exempted under Notification No. 8/2003-Central Excise. Therefore, this is a mistake apparent from the face of facts available on record and appellant will be eligible to exemption to Brass Rods falling under Tariff Heading 7407 21 20 when used captively. ROM on this aspect is allowed.
Adjudicating authority will re-quantify the demand after allowing benefit of exemption to the Brass Rods falling under Tariff Heading 7407 21 20 - ROM application allowed in part.
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2015 (4) TMI 1296
Disallowance of Mark to Market loss in trading of derivates - HELD THAT:- Respectfully following the decision of the Tribunal in the case of Edelweiss Capital Ltd. [2012 (10) TMI 223 - ITAT, MUMBAI] which view has further been followed by another co-ordinate Bench of this Tribunal in the case of Shri Ramesh Kumar Damani vs. The Addl. CIT. [2010 (11) TMI 851 - ITAT MUMBAI], it can be safely held that it is not only the actual stock but derivatives can also be held as stock in trade and the principle "cost or market price whichever is lower" has been rightly followed by the assessee in valuing the derivatives and further when the derivates are held as stock in trade then whatever rules apply to the stock in trade will have to apply to their valuation also.
While anticipated loss is taken into account while valuation of closing stock, anticipated profit in the shape of appreciated value of the closing stock is not brought into account, as not prudent trader would care to show increased profits before actual realization. Respectfully following the law laid down by the authorities as mentioned above, we hold that the assessee has rightly claimed mark- to-market loss which is liable to be allowed. The learned CIT(A) has rightly allowed the claim of the assessee, his order is hereby upheld. - Decided in favour of assessee.
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2015 (4) TMI 1295
Reversal of input tax credit even before closure of the assessment year 2014-2015 - period from April, 2014 to October, 2014 - HELD THAT:- No doubt, it was the claim of the petitioner that at the time of purchase, they filed returns. Therefore, they claimed input tax credit. But even before the closure of assessment year 2014-2015, the assessing authority has passed the original assessment order and the notice was served on the petitioner only on 07.04.2015. In identical circumstances, this Court, while considering the almost similar issue, has come to the conclusion that the respondent cannot deny the benefit of input tax credit to the petitioner therein as it is contrary to the law laid down by the Apex Court in State of Maharashtra Vs. Suresh Trading Company [1996 (2) TMI 451 - SUPREME COURT].
Following the ratio laid down by the Apex Court, this Court is left with no other option except to direct the respondent not to deny the benefit of input tax credit to the petitioner as it is contrary to the law laid down by the Apex Court - petition allowed.
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2015 (4) TMI 1294
The High Court of Madras admitted civil miscellaneous appeals on substantial questions of law regarding the availment of CENVAT credit by M/s.SISCOL, which merged with M/s.JSWPL and M/s.JSWSL. The Tribunal's decision and compliance with CENVAT Credit Rules, 2004 were questioned.
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2015 (4) TMI 1293
Netting off interest received u/s 244A - Interest received on refund of taxes u/s 244A - taxable income as against an amount offered by the assessee which was after netting of the interest paid to the Department u/S 220(2) and 234B - HELD THAT:- As decided in case of Bank of America NT and SA [2014 (12) TMI 551 - BOMBAY HIGH COURT] The Assessee sought to set off the interest paid against the interest received and offered the net interest received to tax - in the case of the Assessee simply because the exercise carried out by it does not result in loss of revenue and there could not be any prohibition for the same, allowed it - assessee claimed that this was business expenditure and this should have been allowed - the Tribunal in permitting this exercise not violated any of the provisions of the Income Tax Act, 1961 - the Tribunal has followed the similar exercise in the case of very Assessee on the prior occasion as well – thus, as such no substantial question of law. - Decided in favour of the assessee
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2015 (4) TMI 1291
Possession of mortgaged property - Section 14 of the SARFAESI Act - recovery by banks of amount due - existence of valid lease agreement or not - HELD THAT:- Learned Magistrate has not granted the protection to the Petitioners, pursuant to the directions given by the Apex Court in the case of HARSHAD GOVARDHAN SONDAGAR VERSUS INTERNATIONAL ASSETS RECONSTRUCTION CO. LTD & ORS [2015 (11) TMI 1315 - SUPREME COURT] and thereafter passed an order under Section 14 of the said Act, where it was held that there is no provision in Section 13 of the SARFAESI Act that a lease in respect of a secured asset shall stand determined when the secured creditor decides to take the measures mentioned in Section 13 of the said Act. Without the determination of a valid lease, the possession of the lessee is lawful and such lawful possession of a lessee has to be protected by all courts and tribunals.
The ratio of the judgment in the case of HARSHAD GOVARDHAN SONDAGAR VERSUS INTERNATIONAL ASSETS RECONSTRUCTION CO. LTD & ORS, more particularly law laid down, in paragraph 36 is binding on this Court. Therefore, the learned Magistrate, in our view, has rightly passed order under Section 14 of the said Act.
The total amount due is more than ₹ 200 Crores. Amount due to the consortium banks is ₹ 1,000 Crores, out of which 60% amount may be adjusted, according to the Petitioners. Be that as it may. We are of the view that no case is made out for interference with the impugned order - Petition dismissed.
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2015 (4) TMI 1290
The Supreme Court of India heard arguments from both the petitioner and respondent. The case was listed for further hearing on 24.04.2015, with the status quo granted on 15.04.2015 to continue until then.
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2015 (4) TMI 1289
Grant of Bail - Advancing of Gold Loans - accepting Illegal gratification - HELD THAT:- Hon'ble Supreme Court in the case of SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT] makes it clear that the object of bail is to secure the appearance of the accused person at his trial. It is further observed that the object of bail is neither punitive nor preventative and that deprivation of liberty must be considered a punishment unless it is required to ensure that the accused person will stand his trial when called upon. The Supreme Court further observed that when a person is punished by denial of bail in respect of any matter upon which he has not been convicted it would be contrary to the concept of personal liberty enshrined in the Constitution except in cases where there is reason to believe that he will tamper with the witnesses.
In the present case there is no gainsaying the fact that the applicant is charged of an economic offence of some magnitude. However, the fact that the investigating agency has already completed investigation and the charge sheet has already been filed cannot be lost sight of. Furthermore there is no hint or allegation that the accused is a flight risk; nor is there any material to suggest that he will tamper with the evidence - therefore the presence of the applicant in further custody is not necessary. The applicant has already been in custody for more than five months.
The applicant is entitled to grant of bail pending trial on stringent conditions - application disposed off.
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2015 (4) TMI 1288
Exemption u/s 11 - DIT(E) not allowing registration u/s 12AA on ground that the assessee is not carrying on genuine activity of charitable nature and assessee’s activity will be benefited to members and not public at large - HELD THAT:- As noted by the Director of Income Tax (Exemptions), Ahmedabad, the object of the assessee was to encourage, protect, promote interest of manufacturers of the icecream and frozen dessert and to promote expansion of market for icecream and frozen dessert and to promote and improve quality and variety of ice-cream and frozen dessert and to take all such steps as may be considered expedient for that purpose including provision of legal, technical and other professional advice and assistance.
The object of the assessee was of general public utility and hence charitable in nature. Therefore, the following the decision of the Hon’ble Gujarat High Court in the case of Gujarat State Plastic Manufacturers’ Association [1998 (7) TMI 715 - GUJARAT HIGH COURT] we set aside the order of the Director of Incometax (Exemptions), Ahmedabad and direct him to grant registration to the assessee under section 12AA of the Act. Thus, this ground of the appeal of the assessee is allowed.
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2015 (4) TMI 1287
Penalty us 271(1)(c) - assessee company had claimed depreciation @ 100% on the crockery, cutlery, blankets, linen and dresses and @ 10% on furnishings and decorations - Bonafide claim - HELD THAT:- The issue whether the depreciation on crockery and cutlery is allowed 100% and 80% in case of blanket and linen is debatable. This claim of the assessee was accepted by the Assessing Officer in A.Y. 2007-08. The assessee’s claim is bonafide during the year under consideration but in A.Y. 2008-09, the assessee revised the depreciation claimed during the assessment proceedings. The assets had been disclosed by the assessee, therefore, no inaccurate particulars of income has been furnished. We, therefore, uphold the order of the ld. CIT(A). - Decided against revenue.
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