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2013 (7) TMI 1189
Issues Involved:
1. Disallowance of commission expenses.
2. Disallowance of Batav expenses.
3. Addition for estimating the closing stock.
4. Addition for double claim of VAT.
Summary:
1. Disallowance of Commission Expenses:
The CIT(A) deleted the disallowance of Rs. 27,34,612/- made by the Assessing Officer (AO) regarding commission expenses claimed by the assessee. The AO disallowed the commission expenses due to lack of evidence for services rendered by commission agents. The CIT(A) observed that the assessee's business involved various activities facilitated by commission agents and payments were made through bank cheques, with agents reflecting these in their tax returns. The CIT(A) cited precedents and the rule of consistency, noting that similar expenses were allowed in previous years. However, the tribunal found that the CIT(A) did not adequately address the AO's findings and restored the matter to the AO for fresh consideration.
2. Disallowance of Batav Expenses:
The AO disallowed Rs. 1,95,170/- out of Batav expenses, which was reduced by the CIT(A) to Rs. 25,398/-. The CIT(A) found that the commission rate, including service tax, was 2.7575%, resulting in a commission amount of Rs. 9,04,622/-. The tribunal confirmed the CIT(A)'s findings and upheld the allowance of Rs. 9,04,622/- in commission expenses.
3. Addition for Estimating the Closing Stock:
The AO added Rs. 17,65,385/- to the income of the assessee for showing nil closing stock instead of the calculated closing stock. The CIT(A) reduced this addition to Rs. 2,79,801/- after verifying that some purchase bills were incorrectly categorized. The tribunal upheld the CIT(A)'s verification and findings, confirming the addition of Rs. 2,79,801/-.
4. Addition for Double Claim of VAT:
The AO disallowed Rs. 14,57,800/- for the double claim of VAT. The CIT(A) restricted this disallowance to Rs. 66,249/- after verifying the VAT figures and noting that this amount remained unpaid. The tribunal found no reason to interfere with the CIT(A)'s detailed findings and upheld the disallowance of Rs. 66,249/-.
Conclusion:
The tribunal allowed the appeal of the Revenue in part and dismissed the cross objection filed by the assessee. The order was pronounced in the open court on 19th July, 2013.
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2013 (7) TMI 1188
Issues Involved:
1. Whether the offences allegedly committed by the detenu affected "public order".
2. Whether the detention order was validly passed and approved within the statutory time limits.
3. Whether the grounds for detention were extraneous, invalid, or vague.
4. Whether there was delay in forwarding the detenu's representation to the Government.
5. Whether all documents relied on by the detaining authority were served on the detenu.
6. Whether the detention order was vitiated due to the time gap between the last prejudicial act and the detention order.
Summary:
1. Public Order vs. Law and Order:
The court examined whether the offences allegedly committed by the detenu affected "public order" or merely "law and order". The detenu was involved in multiple criminal cases, including serious offences under various sections of IPC. The court referred to the principles laid down by the Apex Court, stating that "public order" is distinct from "law and order" and involves acts that disturb public tranquility. The court concluded that the detenu's acts, committed in public places and daylight, terrorized the locality and disturbed the even tempo of life, thereby affecting public order.
2. Validity and Timeliness of Detention Order:
The petitioner contended that the detention order was not approved within the time specified u/s 3(3) of the Act. The court noted that the detention order was issued on 16.2.2013, and the Government approved it on 7.3.2013, within the 12-day period specified. The court found no requirement for the Government to communicate the approval within 12 days and dismissed the contention of delay.
3. Grounds for Detention:
The petitioner argued that the grounds for detention were extraneous, invalid, and vague. The court referred to the definitions of "known rowdy" and "rowdy" u/s 2(p) and 2(t) of the Act, respectively. The court held that once the offences satisfied the legislative specifications, the detenu could not argue that the offences were not grave enough to render his detention illegal.
4. Delay in Forwarding Representation:
The petitioner claimed there was a delay in forwarding his representation to the Government. The court observed that the detenu submitted the representation on 2.4.2013, which was received by the Government on 9.4.2013, after the Advisory Board had already considered the matter. The court concluded that the representation was belated and lacked statutory flavor u/s 7(2) of the Act, and thus, any delay in its communication did not invalidate the detention order.
5. Service of Documents:
The petitioner contended that not all documents relied on by the detaining authority were served on the detenu. The court found that the subsequent reports of the sponsoring authority were indeed supplied to the detenu. Regarding the Section 107 Cr.P.C. proceedings, the court noted that the detaining authority did not rely on these proceedings, and hence, there was no obligation to supply related documents.
6. Time Gap Between Last Prejudicial Act and Detention Order:
The petitioner argued that the time gap between the last prejudicial act (23.10.12) and the detention order (16.2.13) vitiated the detention. The court found that the delay was explained by the time taken for the authority to apply its mind and pass the order. Therefore, this contention was also dismissed.
Conclusion:
The court dismissed the writ petition, finding no merit in any of the contentions raised by the petitioner. The detention order was upheld as valid and in compliance with statutory requirements.
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2013 (7) TMI 1187
Issues Involved:
1. Authority to file the complaint.
2. Proof of documents and evidence.
3. Legally enforceable debt or liability.
4. Parameters for interference in an acquittal judgment.
Summary:
1. Authority to file the complaint:
The complaint was initially filed by Lakhwinder Singh as a partner of M/s. Guru Nanak Tractors. However, during the trial, Jasmer Singh appeared as a witness and claimed to be a partner without providing an authority letter. The court noted, "the complaint has not been pursued by a legally authorized person," and thus, the evidence of CW-2 Jasmer Singh could not be considered valid.
2. Proof of documents and evidence:
The court observed that the complainant failed to prove the documents in the presence of the accused. It was stated, "It was duty of the complainant to prove and to put all these documents in the presence of the accused," which was not done. Additionally, no account statement was produced to show any outstanding amount against the accused, weakening the complainant's case.
3. Legally enforceable debt or liability:
The court referenced the Kerala High Court's principles, stating, "If the negotiable instrument is not supported by consideration, there is no question of the provisions of Section 138 of the Act being attracted." The court found that the complainant could not establish that the cheque was issued in discharge of a legally enforceable debt, especially considering the accused's defense that the tractor was repossessed and a no-due certificate was issued by Mahindra and Mahindra.
4. Parameters for interference in an acquittal judgment:
The court cited several precedents, including 'Allarakha K. Mansuri v. State of Gujarat' and 'State of Rajasthan v. Shera Ram alias Vishnu Dutta,' emphasizing that interference in an acquittal is warranted only for "compelling and substantial reasons." The court concluded that the complainant failed to show any error of law or fact that would justify overturning the acquittal, stating, "Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge."
Conclusion:
The application for leave to appeal was dismissed, upholding the trial court's judgment of acquittal due to the complainant's failure to prove the authority to file the complaint, lack of evidence, and absence of a legally enforceable debt.
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2013 (7) TMI 1186
The Appellate Tribunal CESTAT BANGALORE allowed the appeals filed by the appellant regarding maintenance or repair services provided to Military Engineering Service, as covered by Section 98 of the Finance Act 2012, with retrospective exemption for such services in respect of defence buildings.
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2013 (7) TMI 1185
Issues Involved:
1. Abatement of Appeal
2. Jurisdiction to Proceed Against Relative of Detenu
3. Nexus Between Illegally Acquired Property and Detenu's Income
4. Abatement of Proceedings Upon Death of the Noticee
5. Violation of Principles of Natural Justice
Summary:
1. Abatement of Appeal:
The appeal (A.P.O. No. 107 of 2013) preferred by the Union of India abated due to non-substitution of the legal heirs of the respondent No. 1/writ petitioner, Manilal Jalan. Consequently, this appeal was dismissed.
2. Jurisdiction to Proceed Against Relative of Detenu:
The court held that under section 2 of SAFEMA, the Act applies not only to the detenu but also to their relatives and associates. The initiation of proceedings against Sarbani Devi Jalan, the wife of the detenu, without initiating proceedings against Nathmal Jalan, the detenu, was valid. The properties standing in her name were rightly subjected to a notice u/s 6 of SAFEMA as "illegally acquired property."
3. Nexus Between Illegally Acquired Property and Detenu's Income:
The court examined the resume of materials/reasons and found a reasonable nexus between the properties acquired by Sarbani Devi Jalan and the illegitimate income of her husband, Nathmal Jalan. The court cited Kesar Devi (Smt.) v. Union of India & Ors. and held that there was no requirement to establish a direct link between the detenu's money and the property sought to be forfeited when the relationship is close and direct, as in the case of a spouse.
4. Abatement of Proceedings Upon Death of the Noticee:
The court ruled that the forfeiture under SAFEMA is not punitive but reparative, aimed at recovering illegal gains in favor of the State. Therefore, the proceedings do not abate upon the death of the noticee and can be continued against the legal heirs who have an interest in the property. The continuation of the proceedings against the writ petitioner, being the son of the detenu and legal heir of Sarbani Devi Jalan, was deemed lawful.
5. Violation of Principles of Natural Justice:
The court found no violation of natural justice as the writ petitioner and his brother chose not to appear for the oral hearing despite receiving notice. The defense was based on documentary evidence, and the delay in proceedings was due to the constitutional challenge to SAFEMA, not attributable to the authorities. The court upheld the direction allowing the writ petitioner to redeem the house property at Calcutta on payment of fine in lieu of forfeiture u/s 9(a) of SAFEMA.
The appeal (APO No. 297 of 2009) and other connected applications were dismissed, and the order of the learned Single Judge was upheld.
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2013 (7) TMI 1184
Issues involved: Interpretation of the definition of "Capital Asset" under Section 2(14)(iii) of the Act and the classification of land sold by the respondent-assessee as a capital asset.
Summary:
The appeal was filed against the Tribunal's judgment regarding the classification of the land sold by the respondent-assessee as a capital asset. The questions of law raised were whether the land sold qualifies as a "Capital Asset" under Section 2(14)(iii) of the Act and whether the Hyderabad Airport Development Authority (HADA) should be considered a local body.
The Tribunal found that at the time of transfer, the land in question retained its agricultural character and that HADA is not a local body. It was also determined that the land did not meet the definition of a capital asset under Section 2(14)(iii) of the Act.
The relevant section, 2(14)(iii)(a) and (b), specifies conditions for agricultural land not being classified as a capital asset. Since HADA does not fall under the criteria outlined in the section, the Tribunal correctly concluded that the proceeds from the sale of agricultural land do not constitute capital gains.
The Court agreed with the Tribunal's decision, stating that there was no legal issue requiring further consideration. Consequently, the appeal was dismissed.
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2013 (7) TMI 1183
Issues Involved:
1. Legality of conducting the trial as a warrant triable case instead of a summary trial.
2. Applicability of section 16A of the Prevention of Food Adulteration Act (PFA).
3. Impact of procedural irregularities on the validity of the trial.
Summary:
1. Legality of Conducting the Trial as a Warrant Triable Case:
The petitioner challenged the order dated 31.1.2013 by the Additional Chief Judicial Magistrate, Una, and the revisional order by the Additional Sessions Judge, Una, which confirmed the trial as a warrant triable case instead of a summary trial. The petitioner argued that the trial should have been conducted summarily as per section 16A of the PFA. The Magistrate and the Sessions Judge observed that the case had been tried as a warrant triable case with full participation from the accused and his advocate, including examination and cross-examination of witnesses.
2. Applicability of Section 16A of the PFA:
Section 16A of the PFA mandates summary trials for offences under section 16(1), unless the Magistrate, after hearing the parties, records an order to conduct the trial otherwise. The petitioner argued that no such order was passed, making the warrant triable procedure illegal. The court noted that section 16A is an enabling provision and not mandatory, allowing discretion to the Magistrate to opt for a non-summary trial if deemed necessary. The court emphasized that the summary procedure aims for quicker resolution, but a detailed warrant trial provides better defense opportunities for the accused.
3. Impact of Procedural Irregularities on the Validity of the Trial:
The court examined whether the failure to follow summary procedure without recording reasons vitiates the trial. It concluded that such procedural deviations are curable irregularities under section 465 of the Criminal Procedure Code, provided no prejudice is caused to the accused. The court held that the petitioner, who participated in the trial without objection until the end, cannot claim prejudice due to the non-summary procedure. The court also highlighted that the previous Magistrate was not authorized to conduct a summary trial, validating the non-summary procedure adopted.
Conclusion:
The petition was dismissed, affirming that the trial conducted as a warrant triable case, despite procedural deviations from section 16A of the PFA, did not vitiate the proceedings. The court emphasized the curable nature of such irregularities and the absence of prejudice to the accused.
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2013 (7) TMI 1182
Issues Involved:
The issue involves the permissibility of amending a complaint filed under Section 138 of the Negotiable Instruments Act and the legality of the order passed by the trial Court allowing the amendment.
Summary:
Issue 1: Permissibility of Amendment in Complaint
The petitioner filed a petition under Section 482 of Cr.P.C. to quash the order affirming the amendment in the complaint under Section 138 of the Negotiable Instruments Act. The respondent alleged that the petitioner borrowed money and issued a cheque which was dishonored. The trial Court allowed an amendment to correct a typographical error in the cheque number. The petitioner contended that such an amendment is illegal and prayed for setting aside the order.
Details:
The petitioner argued that the amendment was against the provisions of law as there was inconsistency in the cheque number mentioned by the respondent in the complaint and notice. The trial Court's decision to allow the amendment was challenged on the grounds that there is no provision in the Cr.P.C. for amending a statement already given.
Issue 2: Legal Precedents and Interpretation
The Court considered legal precedents and interpretations regarding the permissibility of amending complaints under Section 138 of the Act. Reference was made to previous cases where it was held that there is no provision in the Code of Criminal Procedure allowing parties to file applications for amendment in pleadings. The Court also highlighted the importance of strict compliance in cases under Section 138 of the Negotiable Instruments Act.
Details:
The petitioner cited cases where it was established that amendments in complaints cannot be allowed, emphasizing the mandatory compliance required in cases under Section 138 of the Act. However, the respondent argued that typographical errors can be amended and supported the trial Court's decision.
Judgment:
The Court analyzed the legal precedents and observed that while there is no provision for amendment in the Code of Criminal Procedure, previous decisions have allowed corrections in certain circumstances. Ultimately, the Court held that the amendment in the complaint, due to a typographical error in the cheque number, was illegal. The orders passed by the lower Courts allowing the amendment were quashed, and the petition was allowed in favor of the petitioner.
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2013 (7) TMI 1181
Conflict of opinion in the decisions of two Two-Judge Benches and Three-Judge Bench - Powers of the Session Court u/s 209 of Crpc - Court of original jurisdiction - issue of summons u/s 193 - committal order passed by the learned Magistrate - This matter was initially directed to be heard by a Bench of Three-Judges in view of the conflict of opinion in the decisions of two Two-Judge Benches, When the matter was taken up for consideration by the Three-Judge Bench, it was brought to the notice of the court that two other decisions had a direct bearing on the question sought to be determined. Ranjit Singh's case disapproved the observations made in Kishun Singh's case, which was to the effect that the Session Court has power under Section 193 of the Code of Criminal Procedure, 1973, Code to take cognizance of an offence and summon other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. According to the decision in Kishun Singh's case, the Session Court has such power under Section 193 of the Code. On the other hand, in Ranjit Singh's case, it was held that from the stage of committal till the Session Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there is no intermediary stage till then enabling the Session Court to add any other person to the array of the accused.
HELD THAT:- the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein. Consequent upon our aforesaid decision, the view taken by the Referring Court is accepted and it is held that the decision in the case of Kishun Singh v. State of Bihar [1993 (1) TMI 304 - SUPREME COURT] and not the decision in Ranjit Singh v. State of Punjab [1998 (9) TMI 696 - SUPREME COURT]and lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Crpc.
The matter is remitted to the Three-Judge Bench to dispose of the pending Criminal Appeals in accordance with the views expressed by the court in this judgment.
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2013 (7) TMI 1180
Issues Involved:
1. Assessment of income at the rate of 7% of gross receipts.
2. Deletion of addition on account of unconfirmed creditors.
Summary:
1. Assessment of Income at the Rate of 7% of Gross Receipts:
The Revenue challenged the order of the CIT(A) directing that income be assessed at the rate of 7% of the gross receipts, thereby allowing relief of Rs. 8,01,99,322/-. The assessee, a firm, filed a return of income declaring Rs. 1,63,89,430/-. The case was selected for scrutiny due to the application of section 44AB. The AO issued a show cause notice for the addition of unconfirmed creditors and disallowance of 50% of expenses due to the non-production of books of account. The AO disallowed 50% of expenses amounting to Rs. 9,16,55,092/- and added Rs. 1,25,33,911/- as unconfirmed creditors. The CIT(A) considered the submissions, remand report, and material on record, and directed to compute the income by applying a net profit rate of 7%. The CIT(A) noted that the AO made an unreasonable basis of assessment by adding entire sundry creditors' balances and disallowing 50% of various expenses, resulting in a high profit margin of around 50%. The CIT(A) found that the NP rate of 7% was justified considering the history of the assessee and the nature of the business.
2. Deletion of Addition on Account of Unconfirmed Creditors:
The AO added Rs. 1,25,33,911/- as unconfirmed creditors. During the remand proceedings, the assessee produced books of account, vouchers, and confirmations of creditors. The AO verified and confirmed most of the creditors' balances. The CIT(A) deleted the addition on account of creditors' balances, noting that the creditors had provided building material and machinery for the assessee's business activities, and the outstanding amounts were confirmed by the creditors. The CIT(A) held that most of the creditors' balances were verified and confirmed, and the addition was unjustified.
Conclusion:
The ITAT upheld the order of the CIT(A), dismissing the Revenue's appeal. The ITAT found no error in the CIT(A)'s decision to compute the income by applying a net profit rate of 7% and deleting the addition on account of unconfirmed creditors. The ITAT noted that the CIT(A)'s findings were supported by the decisions of various High Courts and the Privy Counsel, emphasizing that the estimate of income should be fair and based on reasonable considerations. The departmental appeal was dismissed, and the order was pronounced in the open court.
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2013 (7) TMI 1179
Issues involved: The judgment involves the interpretation of the Payment of Gratuity Act and Regulations, applicability of income tax on gratuity, and the legality of a demand notice issued to retirees.
Interpretation of Payment of Gratuity Act and Regulations: The petitioners, retired employees of the Punjab School Education Board, were entitled to gratuity under the Payment of Gratuity Act and Regulations. The maximum limit of gratuity was increased from Rs. 3.5 lakhs to Rs. 10 lakhs after the Fifth Pay Commission. The petitioners were paid the remaining amount after deduction of Rs. 3.5 lakhs. The issue was regarding the impugned notice directing the petitioners to pay income tax on the balance amount paid to them. The relevant notification specified Rs. 10 lakhs as the limit for gratuity without addressing the taxable aspect.
Applicability of Income Tax on Gratuity: The Court examined Section 10 of the Income Tax Act, which outlines various exemptions from total income. The provision does not categorize the gratuity paid to the petitioners as taxable income. Despite persistent questioning, the respondent failed to justify the demand for income tax on gratuity. Legal advice obtained by the Board also confirmed that gratuity should not be subject to tax within the specified limits.
Legality of Demand Notice: The Court found that the respondents unjustifiably issued demand notices to retirees for income tax on gratuity without legal authority. Despite clear legal advice against such action, the respondents persisted with their stance. The Court quashed the impugned notices as lacking legal basis and justification. The respondents were burdened with costs of Rs. 1 lakh for causing inconvenience to the petitioners and wasting the Court's time, to be deposited within two months.
Conclusion: The judgment clarified that gratuity paid to the petitioners was not taxable within the specified limits and criticized the respondents for their unwarranted demand for income tax. The Court emphasized the importance of adhering to legal provisions and penalized the respondents for their unjustifiable actions.
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2013 (7) TMI 1178
Whether the Respondent turned hostile under coercion of accused person, can seek an application for re- examination U/s 313 Crpc after five months of his examination in trial court - The trial Court disallowed the applications of the Respondents filed u/s 311 of the Crpc, to re-examine PW-9, the informant. The High Court directed the trial Court to allow the 2nd Respondent to examine himself as a witness on a specified date by its order dated 9.12.2010. HELD THAT:- The appeal, therefore, succeeds. The order impugned dated 9.12.2010, passed by the High Court is set aside. The order of the trial Court stands restored. The trial Court shall proceed with the trial. The stay granted by this Court in the order dated 7.3.2011, stands vacated. The trial Court shall proceed with the trial from the stage it was left and conclude the same expeditiously, preferably within three months from the date of receipt of the copy of this order.
The permission of the Court u/s 311 Code of Crpc for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the Appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the Appellant based on the subsequent incident, which resulted in the registration of the FIR, seem to have weighed with the second Respondent to come forward with the present application u/s 311 Crpc, by way of an afterthought. If really there was a threat to his life at the instance of the Appellant and the other accused, as rightly noted by the Court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the Appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency.
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2013 (7) TMI 1177
Issues involved:
The judgment addresses multiple issues including sustaining assessment of income from 'Other Sources', addition of unexplained cash credits u/s 68, assessment of income from 'house property', addition of unexplained cash deposit u/s 69, failure to give credit for certain payments, and levy of interest u/s 234A, 234B, and 234C of the Act.
Assessment of Income from 'Other Sources' and Unexplained Cash Credits:
The assessee declared an income of Rs. 8 lakhs as investment in construction of house property. The AO found rental receipts higher than declared income, leading to an assessed income of Rs. 79,450. Additionally, a bank account in joint names showed credits of Rs. 4,22,000, with withdrawals claimed for construction. The AO added Rs. 71,169 from unaccounted bank account to income. The CIT (A) upheld these actions due to lack of evidence supporting the claims, dismissing the appeal.
Assessment of Income from 'House Property':
The AO calculated income from house property at Rs. 79,450, not allowing deduction under s. 24 due to lack of certificate. The CIT (A) confirmed this. During the appeal, the assessee sought to submit additional evidence regarding interest paid for construction loans. The Tribunal admitted the evidence and remitted the issue back to the AO for fresh consideration.
Conclusion:
The Tribunal partly allowed the assessee's appeal, remitting the issue of income from house property back to the AO for reevaluation based on the additional evidence.
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2013 (7) TMI 1176
Issues Involved:
1. Whether the suit is maintainable in view of the bar of the Benami Transactions (Prohibition) Act, 1988 (Benami Act).
2. Whether the plaintiff has a right to claim co-ownership, partition, and permanent injunction against the defendant.
3. Whether the plaintiff can be dispossessed from the property without due process of law.
Summary:
Issue 1: Maintainability of the Suit in Light of the Benami Act
The plaintiff claimed that the property was acquired by his father using self-acquired funds but in the name of the defendant no. 1. The Benami Act prohibits any suit to enforce rights in respect of property held benami. Section 4 of the Benami Act bars any suit claiming ownership against the person in whose name the property is held. The plaintiff argued that the case falls under the exceptions in Section 4(3) of the Benami Act, which allows claims if the property is held by a coparcener in a Hindu Undivided Family (HUF) or by a trustee in a fiduciary capacity. The court found that the plaintiff did not adequately plead the existence of a coparcenary or fiduciary relationship. The claim of a joint Hindu family without specifying a coparcenary does not meet the exception criteria. Thus, the suit is barred by the Benami Act.
Issue 2: Right to Claim Co-Ownership, Partition, and Permanent Injunction
The plaintiff's claim of co-ownership was based on the assertion that the property was acquired by the father and is thus ancestral property. However, the court found that the property was acquired by the father from his self-acquired funds and not from any joint family funds. The plea of the property being a coparcenary property was not substantiated. The plaintiff's reliance on an affidavit purportedly signed by the defendant no. 1, acknowledging the property as part of a joint Hindu family, was deemed insufficient to overcome the bar of the Benami Act. The court held that the affidavit, even if genuine, would not take the suit out of the prohibition of the Benami Act.
Issue 3: Dispossession Without Due Process of Law
The plaintiff argued that he had been in possession of the first floor of the property and could not be dispossessed without due process. However, the court-appointed commissioner reported that the first floor had not been in use for several years and was in a dilapidated condition. The court found that the plaintiff was living in the property as a licensee of the defendant no. 1 and had not been in possession at the time of the suit. Under Section 65 of the Indian Easement Act, 1882, a dispossessed licensee is entitled to compensation but not repossession. Consequently, the plaintiff's claim for possession was denied.
Conclusion:
The suit was dismissed as barred by the provisions of the Benami Act. All pending applications were also dismissed, and no costs were awarded. The court ordered the decree sheet to be drawn up.
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2013 (7) TMI 1175
The High Court of Gujarat issued an order in a case related to mutation entry for land blocks. The petitioner's land was affected by a mutation entry made in relation to another block. The court issued notice for clarification and ordered maintenance of status quo on revenue entries. The respondent Mamlatdar was directed to explain the circumstances of the order's implementation.
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2013 (7) TMI 1174
Issues involved: Appeal against order confirming addition of income for charitable purposes.
Summary:
The appellant, a registered society u/s 12A of the Income Tax Act, appealed against the addition of &8377; 1,16,68,688/- for non-application of income for charitable purposes to the extent of 85% of income derived during the year. The Assessing Officer held that grants directly credited in the balance sheet were not used for charitable purposes, leading to the addition. The appellant argued that the accounting procedure followed was correct and in line with government-prescribed practices. The Ld CIT(A) upheld the addition, prompting the appeal before the ITAT.
The ITAT observed that the appellant had received grants for charitable purposes and had disbursed amounts to other charitable societies. The dispute centered around the treatment of such donations, which were shown as advances in the balance sheet. Referring to CBDT Instruction No.1132, the ITAT held that the appellant's accounting practice of crediting grants to the Income & Expenditure A/c only upon receipt of utilization certificates was valid. The ITAT concluded that the appellant had indeed utilized the funds for charitable purposes, overturning the addition made by the Assessing Officer.
Therefore, the ITAT allowed the appeal filed by the appellant, emphasizing that the funds were properly utilized for charitable purposes as per government directives and accounting practices.
Judges' Names: SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
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2013 (7) TMI 1173
Issues Involved:
1. Legality of rejection of NOC for change of land use.
2. Interpretation of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
3. Validity of exemption orders under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
Summary:
1. Legality of rejection of NOC for change of land use:
The petitioner challenged the respondents' rejection of their request for a No-Objection Certificate (NOC) for using the subject land for a different purpose, citing proceedings dated 04.03.2013 and memo dated 24.06.2011, which relied on an earlier memo dated 24.04.2008. The petitioner sought to set aside these orders and direct the respondents to grant the NOC without reference to previous restrictions imposed while granting exemption u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
2. Interpretation of the Urban Land (Ceiling and Regulation) Repeal Act, 1999:
The Repeal Act was adopted by the Andhra Pradesh State Legislative Assembly on 27.03.2008. Circular instructions issued thereafter stated that all cases with orders passed u/s 20(1) of the Act would be saved and further action should continue as if the Principal Act had not been repealed. The petitioner argued that the respondents acted illegally in rejecting their request for change of land use based on an erroneous interpretation of the Repeal Act.
3. Validity of exemption orders under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976:
The court examined whether the failure to file a statement u/s 15 of the Act justified the rejection of the NOC request. It was noted that unless an order was passed by the State Government withdrawing the exemption granted earlier, the provisions of Chapter III of the Act would not apply. The court observed that the exemption order continued to remain in force despite the petitioner's failure to comply with Section 15 of the Act. The court also referenced the judgment in Surender Raj Jaiswal v. Government of A.P. 2011(6) ALD 198, which held that conditions imposed in the order granting exemption became unenforceable and non-est after the Repeal Act came into force.
Conclusion:
The court set aside the impugned proceedings dated 24.06.2011 and 04.03.2013, directing the first respondent to reconsider the petitioner's representation for grant of NOC afresh in accordance with the law and the observations made in the judgment, within four months from the date of receipt of the order. The writ petition was disposed of accordingly, with no order as to costs.
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2013 (7) TMI 1172
Issues Involved:
The issues involved in this case are the interpretation of lease agreements for agricultural lands, determination of the purpose of lease, and the applicability of Section 43A of the Bombay Tenancy Act to single-person leases.
Interpretation of Lease Agreements:
The appeal arose from a proceeding u/s 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, regarding the determination of the price of land leased for growing sugarcane. The Additional Tahsildar initially dropped the proceeding, but it was remitted back for fresh inquiry. The Sub-Divisional Officer set aside the Additional Tahsildar's order, stating that the landlord failed to prove the specific purpose of the lease. The Maharashtra Revenue Tribunal later restored the Additional Tahsildar's order, emphasizing the evidence of sugarcane cultivation on the land since 1946.
Judicial Review of Tribunal's Decision:
The tenant challenged the Tribunal's decision in a writ petition before the High Court. The High Court overturned the Tribunal's finding, stating that the Sub-Divisional Officer's original finding was consistent with the evidence on record. The High Court emphasized that the revisional authority cannot dislodge findings consistent with evidence and law.
Applicability of Section 43A:
The High Court ruled that Section 43A of the Act does not apply to single-person leases, as it exempts leases granted to "any bodies or persons" for specific agricultural purposes. The Court highlighted that the plural expression in the provision should not be interpreted to cover singular leases.
Court's Decision:
Upon review, the Supreme Court found that the Sub-Divisional Officer's finding was erroneous and upheld the Tribunal's decision that the land was leased for sugarcane cultivation. The Court criticized the High Court's interpretation of Section 43A, stating that the plural expression should include the singular to serve the Act's purpose. Consequently, the Court allowed the appeal, set aside the High Court's judgment, and restored the Tribunal's decision without costs.
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2013 (7) TMI 1171
Issues Involved:
1. Treatment of share premium account as accumulated profits for deemed dividend u/s 2(22)(e).
2. Eligibility to claim deduction u/s 24(b) for interest on term loan.
Summary:
Issue 1: Treatment of Share Premium Account as Accumulated Profits for Deemed Dividend u/s 2(22)(e)
The Revenue appealed against the order of the CIT(A) which held that the amount available in the share premium account cannot be treated as accumulated profits for the purpose of applying the provisions of section 2(22)(e) of the Income Tax Act. The Assessing Officer (AO) had added Rs. 1,50,27,847/- received as an unsecured loan by the assessee as deemed dividend, considering the share premium account as accumulated profits. The CIT(A) ruled in favor of the assessee, citing that share premium accounts are capital in nature and cannot be considered profits. The CIT(A) relied on the ITAT Delhi Bench decision in DCIT Vs. MIAPO India Limited, which held that section 78 of the Companies Act, 1956, prohibits the use of the share premium account for dividend distribution, thus excluding it from the deeming provisions of section 2(22)(e). The Tribunal confirmed the CIT(A)'s order, dismissing the Revenue's appeal.
Issue 2: Eligibility to Claim Deduction u/s 24(b) for Interest on Term Loan
The Revenue contested the CIT(A)'s decision allowing the assessee to claim deduction u/s 24(b) for Rs. 5,05,52,618/- towards interest on term loan, arguing that only penal interest can be disallowed. The AO had restricted the deduction to Rs. 4,02,14,848/-, excluding interest on interest. The CIT(A) found that the AO did not consider the appellant's submissions and had made assumptions without verifying the actual borrowings and interest rates. The CIT(A) directed the AO to allow the claim after verification, disallowing only penal interest. The Tribunal upheld the CIT(A)'s order, noting the AO had not identified any penal interest payments, thus dismissing the Revenue's appeal.
Conclusion:
The Tribunal dismissed the Revenue's appeal on both grounds, confirming the CIT(A)'s orders regarding the treatment of the share premium account and the eligibility for deduction u/s 24(b). The judgment emphasized the importance of adhering to statutory provisions and proper verification of facts by the AO.
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2013 (7) TMI 1170
Issues Involved:
1. Whether the candidature of individuals acquitted in criminal cases can be canceled by the Screening Committee for police recruitment.
2. The impact of past criminal cases on eligibility for police service.
3. The relevance of the nature of acquittal (honourable vs. benefit of doubt) in determining suitability for police service.
Summary:
Issue 1: Candidature Cancellation by Screening Committee
The Supreme Court examined whether the Screening Committee of the Delhi Police could cancel the candidature of individuals who disclosed their involvement in criminal cases and were subsequently acquitted. The Court upheld the Screening Committee's decision, emphasizing that even acquitted candidates could be deemed unsuitable if the acquittal was not honourable or if the charges involved serious offenses or moral turpitude. The Screening Committee's role is to ensure only individuals with impeccable character join the police force.
Issue 2: Impact of Past Criminal Cases on Eligibility
The Court noted that past involvement in criminal cases is not explicitly listed as a disqualification in the Delhi Police Rules. However, Standing Order No. 398/2010 allows the Screening Committee to assess the suitability of candidates acquitted or discharged in criminal cases. The policy aims to maintain high standards within the police force by excluding individuals with dubious backgrounds, even if they were acquitted due to technicalities or witness hostility.
Issue 3: Nature of Acquittal
The Court differentiated between honourable acquittals and those based on benefit of doubt or technical grounds. It stated that acquittals resulting from serious flaws in prosecution or witness hostility do not equate to honourable acquittals. The Screening Committee is justified in rejecting candidates whose acquittals fall into these categories, as their involvement in serious crimes poses a threat to the integrity of the police force.
Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's orders and upholding the cancellation of the respondents' candidature. The Court emphasized the importance of maintaining high standards and integrity within the police force, supporting the Screening Committee's discretion in assessing the suitability of candidates with past criminal involvement.
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