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Showing 61 to 80 of 2006 Records
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2018 (4) TMI 1950
Dishonour of Cheque - Defendants contend that by reason of the bar under Section 13 of the Maharashtra MoneyLending (Regulation) Act, 2014, no decree can be passed in the suit - whether the suit relates to any loan or part thereof lent by a money lender? - HELD THAT:- Merely because while narrating the facts of the case the grant of loan by the Plaintiff to the Defendants finds a mention, merely as a historical narration, it cannot be said that the suit is for recovery of loan. The moment payment is made by a cheque or another negotiable instrument of a loan, the liability under the loan is substituted by the liability to honour the cheque or the negotiable instrument, as the case may be. In fact, in a sense, the original liability to pay the loan is discharged by means of execution of the negotiable instrument. If this negotiable instrument is not honoured upon presentation for payment, a distinct and new liability arises under the provisions of the Negotiable Instruments Act. It is no answer then to a suit filed on such negotiable instrument that its holder is a money lender and that he did not hold a valid licence when he lent the original sum. The original loan lent merely forms part of a consideration for the negotiable instrument. There is nothing in law which prevents such consideration coming from a money lender, who does not hold a valid money lending licence. The consideration cannot be termed as an invalid consideration.
Section 30 of the Act merely provides for a bar in passing a decree in favour of a money lender in a suit which relates to money lent and advanced and does not render the loan itself to be either illegal or invalid. Accordingly, there is no merit in this defence offered to the summons for judgment.
In the premises, on the facts of the case, this court would be perfectly justified in making the summons for judgment absolute by passing a decree in favour of the Plaintiff. However, with a view to give one chance, only by way of mercy, to the Defendants to try and make out a case at the trial of the suit, this court is of the view that the Defendants may be allowed to defend the suit but on a condition of deposit of the entire principal amount of the dishonoured cheque into this court.
Defendant No. 1 is granted leave to defend the suit on and subject to the condition of deposit in this court of a sum of Rs. 1,86,78,313/within a period of eight weeks from today - The notice of motion is accordingly dismissed.
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2018 (4) TMI 1949
Addition u/s 41(1) - cessation of liability by the assessee - CIT-A deleted the addition - HELD THAT:- CIT(A) categorically come to the conclusion that the provisions of section 41(1) cannot be invoked at all inasmuch as these liabilities does not cease to exist.
CIT(A) had verified the balance sheet of the assessee and had found the assessee had made certain payments to one party in AY 2013-14 and with regard to other parties, pursuant to the disputes chose not to pay the dues , and had decided to show the balances payable to these parties even as late as on 31.03.2013. Hence, there cannot be any case to invoke the provisions of section 41(1) on the ground of cessation of liability by the assessee.
None of the factual findings given by the Ld. CIT(A) in his order have been controverted by the revenue before us with material contrary evidences. No justifiable reason to interfere in the order of the Ld. CIT(A) in this regard. Accordingly, ground no. 1 raised by the revenue is dismissed.
Proportionate disallowance of interest on borrowed funds - CIT-A deleted the addition - HELD THAT:- As categorical finding given by the CIT(A) that one partner has allowed his credit balance i.e. own funds to be withdrawn by the another partner of the firm. Hence, there cannot be any utilization of borrowed funds for excess withdrawals made by one of the partners and consequentially, there cannot be any disallowance of interest on borrowed funds on a proportionate basis.
There is no provision in the partnership deed to charge interest on the excess withdrawals made by any of the partners from the firm. While this is so, when one partner has accommodated another partner to withdraw the balances, which is only internally made between the two partners without disturbing the borrowed funds of the firm. Hence, it cannot be categorized as withdrawal of the borrowed funds of the assessee firm, so as to warrant disallowance of interest on a proportionate basis. Accordingly, CIT(A) had rightly deleted the disallowance of interest - Decided against revenue.
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2018 (4) TMI 1948
Disallowance u/s. 40(a)(ia) - TDS on reimbursement of charges - assessee made an oral prayer that the assessee can produce necessary evidence to show that the recipient of the amount i.e. the warehousing corporations have offered the amount paid by assessee to tax if, the matter is remitted back - HELD THAT:- We do not find merit in the submissions made by the assessee. There is no document on record that would indicate that it is a case of reimbursement of charges - the plea raised by the assessee that it is a case of reimbursement or expenses is without any merit. We do not find any infirmity in the order of CIT (Appeals) in confirming the addition.
We remit this issue back to the file of Assessing Officer for verification. The assessee shall furnish necessary details before the AO to substantiate that the recipients of the amount i.e. the warehousing corporations have offered the amount to tax. AO shall decide this issue de-novo after considering the necessary documents furnished - Appeal of assessee is partly allowed for statistical purpose.
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2018 (4) TMI 1947
Rectification of mistake u/s 154 - deduction u/s 88E in respect of security transaction tax paid - debatable issue - HELD THAT:- We find merit in the contention of the Ld. A.R. that the provision of section 154 of the Act should be resorted in order to rectify an apparent mistake but not the issues which are debatable one.
We find from the records before us that during the year assessee has paid STT of Rs.Rs.45,18,667/- whereas the rebate was claimed only to the extent of Rs.35,68,713/- on its own. In our opinion, there is no mistake apparent on the face of the order passed by CIT(A) on the basis of which the AO concluded that the rebate under section 88E is wrongly allowed in respect of 4 items of income as have been stated above. In our opinion, the issue sought to be rectified under section 154 was debatable and not apparently wrong.
We are of the view that the order passed by Ld. CIT(A) upholding the order passed by AO under section 154 of the Act is wrong and can not be sustained.
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2018 (4) TMI 1946
Allowability of assessee’s claim of interest expenditure - Commissioner (Appeals) upheld the disallowance of interest expenditure by holding that interest income earned by the assessee has to be treated as business income and the interest expenditure cannot be allowed u/s 36(1)(iii) as it is not for the purpose of business and it cannot be allowed under section 37(1) as it was connected to activities prohibited in law or for infraction of law - HELD THAT:- Commissioner(Appeals) has totally overlooked and ignored the inconsistencies pointed out by the assessing officer with regard to the nature of transactions between the parties in purported violation of various provisions of Companies Act. Commissioner(Appeals) while allowing assessee’s claim in Assessment Year 2010–11 has not at all dealt with a number of factual issues raised by the assessing officer. In as much as, while deciding assessee’s appeal for AY 2011–12 the Commissioner(Appeals) has upheld the disallowance of interest expenditure claimed by the assessee on a altogether different reasoning by changing the head of interest income shown by the assessee under the head ‘income from other sources’ to ‘business income’. Thus, there is inconsistency even in the stand of the department with regard to the head of income.
The most important factor which will have crucial bearing on the disputed issue is the fate of the cases filed by the CBI against the assessee under the Prevention of Corruption Act and Prevention of Money Laundering Act. A reading of the impugned assessment orders as well as the first appellate order for assessment year 2011–12 would leave no room for doubt that the disallowance of interest expenditure stands on the fulcrum of the allegations made by the CBI against the assessee and other persons in the charge sheet/complaint filed under the Prevention of Money Laundering Act, 2002 and Prevention of Corruption Act, 1988.
Undisputedly, these are recent developments much after completion of proceedings before the Departmental Authorities. None of the Departmental Authorities had the benefit of the aforesaid orders passed by the learned Special Judge, CBI (04), New Delhi, which were produced for the first time in course of appeal hearing before us. Rules of natural justice and fair play demand that the Departmental Authorities must be given an opportunity to analyze and examine the impact the orders passed by the learned Special Judge, CBI (04), New Delhi, may have on the disputed issue arising in the present appeals.
Therefore, regard being had to the facts discussed by us herein before and the changed scenario arising due to the orders passed by the learned Special Judge, CBI (04), New Delhi, we are of the considered opinion that the issues raised in the present appeals are required to be restored back to the Assessing Officer for de novo adjudication after considering all incidental facts and material including the orders of the learned Special Judge, CBI (04), New Delhi. Appeals are allowed for statistical purposes.
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2018 (4) TMI 1945
Interpretation of statute - appointment of the Chairperson - scope of the expression 'Chairperson "may" be a Judge of a High Court for the State Commission, a Judge of the Supreme Court or the Chief Justice of a High Court for the Central Commission' - whether the expression "may" should be read as "shall", i.e., whether it is mandatory to have a judicial mind presiding over these Commissions in the form of a Judge?
HELD THAT:- It is concluded as follows:
i. Section 84(2) of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is not mandatory to do so.
ii. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.
iii. That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench.
iv. The challenge to the appointment of the Chairman and Member of the Tamil Nadu State Commission is rejected as also the suo moto proceedings carried out by the Commission.
v. Our judgment will apply prospectively and would not affect the orders already passed by the Commission from time to time.
vi. In case there is no member from law as a member of the Commission as required aforesaid in para 2 of our conclusion, the next vacancy arising in every State Commission shall be filled in by a Member of law in terms of Clause (ii) above.
Transfer petition allowed.
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2018 (4) TMI 1944
Levy of Service Tax - consideration paid for usage of trademark “AREVA” which is owned and registered by the parent company of the appellants in France - HELD THAT:- The said issue was decided in the appellant’s own case [2013 (3) TMI 82 - CESTAT CHENNAI] where it was held that The expression “tax on the sale or purchase of goods” in Entry 54 in List II of Seventh Schedule when read with the definition clause 29-A of Article 366 includes a tax on the transfer of property in goods whether as goods or in the form other than goods involved in the execution of works contract.
Following the decision, there are no hesitation to hold that the demand cannot sustain. The impugned order is set aside and the appeals are allowed.
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2018 (4) TMI 1943
Seeking to restrain Respondents and/or their nominees from in any manner deleting/amending or NOT giving effect to Clauses (b) & (c) of Article 1V-Appendix A of the Articles of Association - HELD THAT:- In respect of the expenses incurred on account this litigation, the prayer has been made in CA No. 276(PB)/2018. If there is any such provision as sought to be projected by citing Articles of Association, then appropriate application be placed before R-1 by the petitioner or by respondent nos. 9,11,16,17, 18 and 20 and R-1 shall consider the aforesaid representation in accordance with the provisions of Articles of Association, specially Article 80 and pass appropriate order in accordance with law.
We do not wish to proceed with the notice seeking explanation of respondent nos. 2,3, 5,7, 10 and 12 under Section 425 of the Companies Act but feel contended to observe that all the aforesaid respondents shall remain careful in future to conduct the affairs of the company. They should not give further chance to any Forum to go to the extent of issuing contempt notices to them.
Application disposed off.
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2018 (4) TMI 1942
Seeking grant of bail - Money Laundering - It is contended by the counsel for the petitioner that the allegation against the petitioner is that out of money laundered she has purchased residential and agriculture property in Bhilwara - HELD THAT:- Considering the contentions put-forth by the counsel for the petitioner and the fact that complaint has been filed and property had already been attached and the custodial interrogation of petitioner is not required, the anticipatory bail is allowed.
The petitioner is directed to surrender before the concerned Court within two weeks of this order - Anticipatory Bail Application is allowed.
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2018 (4) TMI 1941
Input tax credit - goods or an immovable property - extended period of limitation - HELD THAT:- There is no substantial question of law, which enables us to entertain this Appeal. The matter has been decided in the light of the peculiar facts and circumstances of the present case.
For these reasons, this Appeal cannot be entertained. The view taken by the Tribunal cannot be termed as perverse or vitiated by any error of law apparent on the face of the record.
Appeal dismissed.
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2018 (4) TMI 1940
Maintainability of appeal - non-compliance with the provision of Section 129 E of Customs Act, 1962, by making pre-deposit of the requisite amount - HELD THAT:- The matter has been listed under the category ‘Mention Matter’.
The appeals are non-maintainable on account of non-compliance with the provision of Section 129 E of Customs Act, 1962, by making pre-deposit of the requisite amount.
The appeals are dismissed as non-maintainable.
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2018 (4) TMI 1939
Validity of order of dismissal from the service - punishment of forfeiture of seniority of 24 months, also passed - It was observed that when the Respondent had been awarded the punishment of dismissal from service, second punishment, namely, forfeiture of seniority for 24 months did not make any sense - HELD THAT:- From the evidence discussed above, it stands established that calls were made from Cell Phone No. 9564784782. However, some controversy has arisen in respect of CDRs produced from the service provider, namely, Vodafone South Mumbai and the Respondent is trying to take advantage thereof. In this behalf, it may be mentioned that in the NOFRA records, though Cell Phone No. 9564784782 is rightly mentioned, the said phone number is displayed as belonging to Idea network. On that basis, it was argued that NOFRA CDRs could not have been relied upon. However, it needs to be recorded that the Appellants had given satisfactory explanations for the aforesaid mistake. It was explained before the AFT that the mobile number of the Respondent had been erroneously shown as an Idea Cell Number due to feeding of Code "95" as that of Idea Cell in the system of NOFRA. This was also clarified by Mr. Fernandes who appeared as CW-2. He was the Programmer of the NOFRA system. It is significant to point out that there is no cross-examination by the Respondent on this point - It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the Respondent. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the Appellants. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone.
Learned Counsel for the Appellants rightly argued that non-production of the certificate Under Section 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana [2017 (7) TMI 1366 - SUPREME COURT].
In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all - there are no merit in the appeal preferred by the Officer.
Quantum of sentence given by the AFT - HELD THAT:- After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal.
The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, the order of the Tribunal on sentence, need not be interfered, inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.
The Respondent herein shall be reinstated in service within 2 weeks from the date of passing of this order and he shall not be entitled to any salary for the intervening period, i.e., from the date of dismissal till the date of reinstatement - appeal dismissed.
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2018 (4) TMI 1938
Unexplained cash credit - addition u/s.68 - advance received against sale of shares unexpalined - assessee failed to prove the identity, genuineness and creditworthiness of the creditors - HELD THAT:- Assessees had duly disclosed the receipt of advance which is under appeal in their regular books of account. The assessees claimed to have sold shares against these advances in the immediately succeeding assessment year i.e. 2009-2010 and have also paid capital gains tax on the gains derived on sale of such shares. It is not in dispute that the related long-term capital gains have been also accepted as genuine by the department in the assessment for the assessment year 2009-2010.
D.R. could not point out any material which was unearthed because of the search and which shows that the advances in question were not genuine in respect of which addition was made by the Assessing Officer and confirmed by the CIT(A). Thus, it is observed that the additions in question were not based on any search material. Additions so made de hors search material is unsustainable - Decided in favour of assessee.
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2018 (4) TMI 1937
Demand of interest on differential duty - Whether the appellant is liable to pay interest on differential duty even though the differential duty, if any, was paid, prior to the date of the passing of the final assessment order - HELD THAT:- In view of order passed in M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (12) TMI 594 - SUPREME COURT], the matter is referred to 3 Judges' Bench subject to orders of Hon'ble the Chief Justice.
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2018 (4) TMI 1936
Benefit of treaty - recipients satisfied conditions of the treaty and can be treated as resident of respective countries as per the DTAA - whether the learned CIT(A) was justified in holding that section 206AA of the Income Tax Act, 1961 do not override the provisions of Double Taxation Avoidance Agreement entered into by the Government of India under section 90? - HELD THAT:- We find that, in the case of DDIT Vs Serum Institute of India Pvt. Ltd. [2015 (6) TMI 26 - ITAT PUNE] section 206AA of the Act does not override the provisions of section 90(2) of the Act and that in the impugned cases of payments made to non-residents, assessee correctly applied the rate of tax prescribed under the DTAAs and not as per section 206AA of the Act because the provisions of the DTAAs was more beneficial. Thus, we hereby affirm the ultimate conclusion of the CIT(A) in deleting the tax demand relatable to difference between 20% and the actual tax rate on which tax was deducted by the assessee in terms of the relevant DTAAs. As a consequence, Revenue fails in its appeals.
The views so expressed by the coordinate bench now stand approved by Hon’ble Delhi High Court’s judgment in the case of Dansico India Pvt. Ltd. [2018 (2) TMI 1289 - DELHI HIGH COURT] No judicial precedent to the contrary has been brought to our notice. In this view of the matter, and respectfully following the binding judicial precedents, we approve the conclusions arrived at by the CIT(A) and decline to interfere in the matter.
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2018 (4) TMI 1935
Money Laundering - proceeds of crime - scheduled offences - forged documents - illegal money by making calls on certain pre-fixed international numbers and putting on hold such calls in the manner described in the complaint - offences punishable under Sections 419, 420, 467, 468, 471 and 120-B I.P.C. - HELD THAT:- By the amending Act of 2009, the provisions of PML Act were amended and Scheduled offences under Sections 419, 420, 467, 468, 471 and 120B IPC which were in Part B of the Schedule were brought in Part A of the Schedule. Further, Part B of the Schedule was omitted.
Thus the offence alleged to have been committed by the petitioners in acquiring or processing etc., of proceeds of crime were always part of the Schedule appended to the PML Act. The arguments of the counsel for the petitioners that these offences were not part of the Schedule at the time when the offence is alleged to have been committed by them, does not hold good in view of expressed provisions of the Act and the Schedule.
There are no merit in the petitions and the same are therefore, dismissed.
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2018 (4) TMI 1934
TP Adjustment - Comparability - HELD THAT:- Since the assessee has furnished the required particulars and relying on the decisions of Tribunal / High Court, we remit the issues in connection with the above comparables to the TPO/A O for a fresh examination. In respect of the comparables, Caliber Point Business Solutions Limited & R Systems International Limited, the assessee shall furnish comparables data for the verification of the TPO. TPO shall decide as to whether the above comparables are to be included or to be excluded, as the case may be, in accordance with law.
Disallowance made u/s. 14A r.w.r. 8D - HELD THAT:- Since, the assessee has not earned any dividend (exempt) income during the year, following the jurisdictional High Court decisions in the cases of Redington (India) Limited [2017 (1) TMI 318 - MADRAS HIGH COURT] and CIT, Central(1), Chennai vs Chettinad Logistics Pvt. Ltd [2017 (4) TMI 298 - MADRAS HIGH COURT] the addition made by the AO is deleted and the assessee’s grounds in this regard is allowed.
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2018 (4) TMI 1933
Principle of mutuality - Club or Association services - appellant being a registered club is providing various services to its members - HELD THAT:- On perusal of material available on record, it appears that the Hon’ble Jurisdictional High Court in the case of SPORTS CLUB OF GUJARAT LTD VERSUS UNION OF INDIA & 3 [2013 (7) TMI 510 - GUJARAT HIGH COURT] observed that Section 65 (25a), 65 (105)(zzze) and 66 are not applicable to the appellant as per the ratio laid down in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT] where it was observed that the relationship between the club members and club based on the principle of mutuality which attracts no service tax.
There are no reason to interfere with the impugned order, the same is sustained along with the reasons mentioned therein - appeal dismissed - decided against Revenue.
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2018 (4) TMI 1932
Reopening of assessment u/s 147 - HELD THAT:- During the course of hearing, it has been brought to our notice that the Central Board of Direct Taxes has issued a letter directing for withdrawal of these appeals.
In view of the above, these appeals are dismissed as withdrawn. Question of law is kept open.
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2018 (4) TMI 1931
Exemption u/s 80P(2)(a)(vi) - interest earned on fixed deposits on accrual basis - CIT(A) had restricted the addition to 50% of interest earned on the ground that some fixed deposits were required to be kept by the assessee co-operative society being bank guarantee to procure the business - HELD THAT:- Applying the principle laid down by the Tribunal in assessee’s own case [2016 (12) TMI 297 - ITAT PUNE], which in turn, has been given effect to by the Assessing Officer in assessment year 2011-12 also, it is held that interest earned by the assessee on fixed deposits is entitled to deduction claimed under section 80P(2)(a)(vii) of the Act. Accordingly, the Assessing Officer is directed to allow the same. The grounds of appeal raised by the assessee are thus, allowed.
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9911796707
