|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1760 Records
-
2015 (9) TMI 1710
Seeking winding of the respondent-company - inability to pay the admitted debt - HELD THAT:- It is evident that now the stand is that the respondent-company is to recover a sum of ₹ 53,648/- from the petitioner-company, whereas in reply to the notice, the claim was to the tune of ₹ 11,07,297/-. It is further relevant to add here that in reply to the petition, the story that settlement between the parties had taken place in May, 2008 regarding rebate on the invoice value is merely an after thought just to defeat the petition, as no such plea was taken when reply to the statutory notice was given in September, 2008.
The defence raised by the respondent-company is not reasonable as the debt cannot be said to be disputed, which has not been paid despite statutory notice and even pendency of the present petition in this court for a period of about six years. Hence, the petition deserves to be admitted - Adjourned to February 16, 2016.
-
2015 (9) TMI 1709
Exemption u/s 11 - disallowance made on account of vehicle running expenses and depreciation of car in terms of Section 13(2)(b) - CIT-A deleted the additions - HELD THAT:- AO has not brought any material on record as to how he has given his finding that the cars have been purchased for the benefit of the Chairman. AO was also not justified in holding that the assessee trust has no requirement to maintain luxury car. The expenses should be considered from the point of view of the assessee and not for the point of view of the AO.
In the absence of any material brought on record against the assessee, the order of the AO could not be sustained. Further, it is not in dispute that Shri Anoop Garg, Chairman is looking after the activities of the assessee trust whole time and has to visit various Government Departments in connection with the activities of the assessee trust. No incriminating material was found during the course of search if the Chairman has used the cars for personal purposes. Therefore, it appears that addition has been made wholly on adhoc basis which could not be sustained in law - The findings of the Assessing Officer have no basis what-so-ever, therefore, ld. CIT(Appeals) was justified in deleting the addition - Decided against revenue.
Addition on account of discrepancies in two set of trial balances found at the time of search - HELD THAT:- The assessee has given complete details of complete trial balances and incomplete trial balances and the remarks and the reasons for difference in the figure. These figures have been reconciled and is supported by all the entries made in the books of account. The difference in both the trial balances was thus, due to certain missing entries which have been even reconciled before us during the course of arguments. When all these reconciliations were submitted to the AO for his comments, the explanation of the assessee was not rebutted by the AO in any manner. CIT(Appeals) on the basis of material on record, was rightly satisfied with reconciliation done between incomplete trial balance and complete trial balance. Thus, ld. DR failed to point out any error in order of ld. CIT(Appeals) in deleting the addition.
When assessee prepared the balance sheet on the basis of complete data available in the trial balances, the figure came to more as compared to the lesser figure taken by the Assessing Officer from the incomplete trial balance. Therefore, this itself would show that there were no basis what-so-ever for making addition against the assessee. It was merely a mistake in not making certain entries in incomplete trial balance, thus could not be termed as undisclosed income of the assessee. The ld. CIT(Appeals) on proper appreciation of facts and reconciliation statement filed before him, was justified in deleting the addition.
Addition of salary paid to Chairman u/s 13(2)(b)(c) - amount so paid to the Chairman was excess of what may be reasonably paid for such services - HELD THAT:- It is not in dispute that the Chairman has rendered services to the assessee trust/institution on whole time basis. The assessee trust maintained three institutions, one at Moga and two at Panchkula. Therefore, Chairman shall have to visit these distant places and has also to visit several government organizations in connection with the activities of the assessee trust.
When the salary to the Chairman is paid less than ₹ 84,000/- per month in assessment year 2006-07, it could not be said to be unreasonable. In those years, even the persons in Govt. managerial capacity would be getting salary more than ₹ 85,000/- per month. The Assessing Officer has not brought any evidence of comparable institution to show that any excess salary has been paid to the Chairman. In the absence of any adequate evidence or material on record, particularly when during the course of search, admittedly no incriminating material was found regarding excess salary paid to the Chairman, addition is wholly unjustified. Therefore, we do not subscribe to the views of the authorities below in making and sustaining the addition. We, therefore, set aside the orders of authorities below and delete the addition.
Addition based upon the rough notings in the diary seized during the course of search - HELD THAT:- No propriety in filing Department appeal on same issue in parts. The reasons for deletion of addition is same for which huge addition was deleted by ld. CIT(Appeals) and that too on the basis of comments received from the Assessing Officer during remand proceedings. DR during the course of arguments, have not been able to point out any infirmity in the order of ld. CIT(Appeals) in deleting the addition - On going through the material on record, we find that ld. CIT(Appeals) was justified in deleting the addition in respect of duplicate entries/double additions made by the Assessing Officer and part of the amount which was not recorded. From the above discussion in the light of the findings of the ld. CIT(Appeals), we do not find any justification to interfere with the order of ld. CIT(Appeals). The departmental appeal, thus, stands dismissed on ground Nos. 1 & 2.
Addition on the same issue based on rough notings in the seized diaries - HELD THAT:- The entries contained in the diary itself are not corroborated by any material or evidence on record. The ld. CIT(Appeals) also in his findings in column No. 5, as reproduced above, has mentioned that the students who have not taken admission during the year but maintained addition of ₹ 28,25,000/- on the reasons that the remand report mentioned specific dates with amount against the students. The findings of the authorities below are wholly unjustified because when the students whose names have been mentioned in column No. 5 as per the seized diary have admittedly not taken admission in the institution of the assessee trust, where is the question of those students in paying any amount by way of capitation fees or fee to the assessee trust. Therefore, there was no justification to make addition of such students who have not taken admission in the Institution of the assessee trust merely because their names were mentioned in the seized diary. The addition is liable to be deleted.
Addition in respect of the amount “out of the balance amount which have been recorded in the books.” - HELD THAT:- When the findings of the ld. CIT(Appeals) based on the remand report of the Assessing Officer says that the amount of ₹ 1.66 Cr has been recorded in the books of account of the assessee trust, where is a question of making addition against the assessee trust. The ld. CIT(Appeals), on the basis of the remand report noted that the dates appearing in the seized diary do not match with the ledger account, therefore, addition was made.
As is noted above, since seized diary was the estimated figures made by the Chairman Shri Anoop Garg, therefore, there is no question of matching the dates with the entries contained in the regular books of account maintained by the assessee. Since the diary was found from the possession of Shri Anoop Garg, therefore, it is probable that the same may be his personal notings which may not be directly connected with the assessee's affairs. It is not explained as to how the entries contained in the diary relate to the assessee trust. The entries contained in the diary relates to four types of entries of the fees on which substantially the ld. CIT(Appeals) deleted the addition and others also liable to be deleted. The assessee also filed affidavit of some of the students before the authorities below stating that they have not paid any amount as mentioned in the diary to the assessee trust but none of the deponents have been examined by the authorities below. Whatever NRI students were admitted, their fees was found recorded in the books of account. Since some of the students were not admitted, the authorities below were not justified in adding the amount against their names whose names were mentioned in the diary. If the dates of the fees recorded in the books of account do not match with the diary, the authorities below failed to explain as to from where the assessee has received the fees and how they have been recorded in the books of account.
Therefore, the amounts, even if do not match with the seized diary, when have been recorded in the regular books of account even prior to the search, there was no justification for the authorities below to make the addition of ₹ 1,66,40,072/-. Similarly, the students who have not admitted to the assessee trust, there is no question of receipt of fees of ₹ 28,25,000/- from them, therefore, addition of ₹ 28,25,000/- was wholly unjustified. For the sake of argument, even if it is believed that Shri Anoop Garg has received any alleged amount but there is no evidence on record to prove that Shri Anoop Garg has handed over the alleged amount to the assessee trust.
The amount of ₹ 75.80 lacs, once accepted by Shri Anoop Garg of his own, therefore, same can not come to the assessee in any manner and therefore, the balance amount of ₹ 80.48 Cr in the hands of the assessee in respect of column No. 7 which is balance amount left, which is the estimation by Shri Anoop Garg, could not be added in the hands of the assessment trust. This amount could only be considered in the case of Shri Anoop Garg, Chairman of the assessee trust and sine surrendered amount of ₹ 75.80 lacs has already been made in the case of Chairman and his appeals have been dismissed separately, there was no justification to make double addition of ₹ 80.48 lacs in the hands of the assessee trust.
Addition u/s 68 - HELD THAT:- There is no mention of any date against these names. Even no name of assessee is mentioned in seized paper. The statement of the Chairman Shri Anoop Garg was recorded in which also he has not made any allegation against assessee trust of taking any loan or passing the same loan to the assessee trust. There are no entries of the said loans recorded in the books of account of the assessee. The addition under section 68 of the Act could be made if any sum is found credited in the books of account of the assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not in the opinion of the Assessing Officer as satisfactory, the sum so credited could be charged to income tax as income of the assessee of that previous year. Since there is no sum found credited in the books of account of the assessee in assessment year under appeal and no reliable evidence was found during the course of search, that these were genuine loans taken by assessee in assessment year under appeal, no addition could be made with the help of Section 68 of the Act of the rest of amount.
In the case of the assessee also in the seized paper in the names of other persons, only 3, 5, 15, 15, 7 and 36 are mentioned. It would not indicate whether these are in rupees or in lacs. No material is produced before us to support findings of the authorities below. Considering the above discussion, we are of the view that authorities below were wholly unjustified in making and sustaining the addition of the authorities below are, therefore, set aside and the entire addition is deleted.
-
2015 (9) TMI 1708
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Since the tax effect involved in the instant appeal is negligible, the appeal is dismissed on this ground alone.
-
2015 (9) TMI 1707
Ownership over the suit schedule property by inheritance - HELD THAT:- Once the High Court recorded a finding that the property was vacant as on the date of the filing of the suit there was no question of the Plaintiffs claiming settled possession of the said property assuming the view taken in JOHN B. JAMES AND ORS. VERSUS BANGALORE DEVELOPMENT AUTHORITY AND ORS. [2000 (8) TMI 1139 - KARNATAKA HIGH COURT] was otherwise legally sound since the so called settled possession of the Appellants in RFA No. 911 of 2002 stood vacated from the suit schedule property, no prayer for injunction as set out in the petition filed by the Appellants in those appeals could help them for an injunction issues only to protect what is in lawful possession of the Plaintiffs. Injunction could not be claimed when Plaintiffs stand dispossessed from the suit property prior to the filing of the suit. The question of establishing settled possession did not, therefore, arise in relation to the properties that already stood cleared of any structures by demolition of whatever stood on the same. The High Court was, in that view, justified in setting aside the decree passed by the Trial Court and dismissing the suit filed by the Plaintiffs.
The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which are referred. All that the High Court has found in favour of the Plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the Plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the Appellant-BDA. The fact that the Plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation of property that stood vested in the BDA.
Appeal dismissed.
-
2015 (9) TMI 1706
Dishonor of Cheque - insufficiency of funds - requirement to make vicariously liable - Section 138 of N.I. Act - how a Director of a company who stands in a different footing to the Managing Director by his status liable or to be made liable for the offences punishable under Section 138 of the N.I. Act? - HELD THAT:- Here a perusal of the very complaint relevant portion extracted supra, but for a bald statement, there is no material averment as to how A-3 to A-5 are liable. It is not even the case from perusal of the cheque of any of them are signatories, along with A-2 on behalf of A-1 entity. The mere serving of notice and their silence even with no reply, no way make them liable thereby, but for to draw adverse inference so far as A-1 and A-2 concerned as to but for no defence they could have replied.
Now, coming to A-1 Company and A-2 Managing Director concerned as discussed supra, along with A-1 by virtue of the status apart from A-2 is signatory to the cheque issued not in dispute is liable. It is needless to say as per Rangappa supra, the burden is on the accused under reverse onus clause from the cheque routed from the account of the accused No. 1 company signed by A-2 on behalf of the A-1 that too there are transactions. Thus, it is for the accused to discharge to rebut the presumption by entering the defence as to how the amount covered by the cheque is not legally enforceable debt or other liability. The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability - The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability.
Petition allowed.
-
2015 (9) TMI 1705
Validity of Award of the Arbitrator - award passed with respect to disputes which had arisen between the petitioner/DSIDC/owner and the respondent/contractor with respect to contract dated 21.4.1995 for construction of Co-Ed. Polytechnic at Rohini, Delhi for the petitioner - HELD THAT:- The net position which will emerge is that the amount of ₹ 1,09,08,393/- will be reduced on account of reduction of the amount of ₹ 1,05,402/- (sub-claim no.3 of Claim no.10), and an amount of ₹ 1,35,223/- on account of rejection of Claim no.12 for this amount which was allowed by the Arbitrator and is rejected by this Court, the amount under Claim no.16 as awarded will stand reduced from a sum of ₹ 1,22,808/- to ₹ 72,000/-, ₹ 2 lacs on account of rejection of Claim no.20 as allowed by the Arbitrator, and proportionate reduction of Claim no.27, and ₹ 6,00,000/- awarded under Claim no.26. All these amounts are to be reduced from the amount of ₹ 1,09,08,393/- as awarded by the Arbitrator as this Court has accepted the objections of the petitioner herein by rejecting the said claims awarded by the Arbitrator. Also the amount under Claim no.11 as awarded will stand reduced from a sum of ₹ 7,48,871/- to ₹ 683,428. Claim no.27 being the claim of interest on the awarded amount will also now get proportionately reduced.
Thus, on account of acceptance of some of the objections of the petitioner, the figure of the awarded amount of ₹ 1,09,08,393/- will stand reduced by ₹ 11,56,876/- and hence the net awarded amount to the respondent will come to ₹ 97,51,517/-. On this amount respondent will be entitled to interest at 12% per annum from the date of the Award till the date of actual payment by the petitioner - the objection petition is allowed to the limited extent by reducing the net awarded amount to the respondent herein and against the petitioner to a sum of ₹ 97,51,517/- alongwith interest at 12% per annum simple from the date of the Award viz. 21.3.2006 till the date of payment of this amount by the petitioner to the respondent herein.
-
2015 (9) TMI 1704
Interest expenditure disallowance - HELD THAT:- We find that the Tribunal in the case of Eminent Holdings [2014 (7) TMI 466 - ITAT MUMBAI] have followed the decision of the Tribunal given in common group case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI]and restored the matter to the file of the Ld. CIT(A) for fresh adjudication
We restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee. Before closing this issue, the Ld. Counsel for the assessee pointed out that the Ld. CIT(A) has held that the issue of interest expenditure is pending before the Hon'ble Special Court. It is the say of the Ld. Counsel that the proceedings in which the said issue of interest was issued by the custodian have been already concluded which fact has already been recorded by the Ld. CIT(A) in the impugned order. We, therefore, direct the Ld. CIT(A) to consider this fact while deciding the issue afresh.
Levy of interest u/s. 234A, 234B and 234C - HELD THAT:- Identical issue was decided in the cases of Topaz Holdings Pvt. Ltd. [2014 (6) TMI 998 - ITAT MUMBAI] and Eminent Holdings Pvt. Ltd. [2014 (7) TMI 466 - ITAT MUMBAI] that the Tribunal had upheld the levy of interest in principal, that it had set aside the issue for calculating the interest to the file of the AO with direction that the tax deducted as source should be reduced while calculating the interest.Respectfully, following the above order we restore back the issue to the file of the AO who would levy the interest as per the provisions of section 234 of the Act and give credit for the TDS amounts.
-
2015 (9) TMI 1703
Revision u/s 263 - HELD THAT:- We find that the order of the CIT made u/s. 263 of the Act was appealed by the assessee before the Tribunal and the Tribunal2014 (12) TMI 1370 - ITAT MUMBAI] has held the revision proceedings infirm and illegal and consequentially restored the regular assessment dated 31.10.2009.
“Sublato fundamento cadit opus” meaning thereby that in case the foundation is removed,super structure falls. In the present case also the foundation i.e. order made u/s. 263 has been removed by the Tribunal in ITA No.23/Mum/2012, hence the structure i.e. the assessment made u/s. 143(3) r.w.s 263 of the Act falls. Hence, the appeal filed by the assessee becomes otiose.
-
2015 (9) TMI 1702
Recall of witnesses, at the stage when statement of accused Under Section 313 of the Code of Criminal Procedure has been recorded - plea is that the defence counsel was not competent and had not effectively cross-examined the witnesses - HELD THAT:- Inspite of the High Court not having found any fault in the conduct of the proceedings, it held that "although recalling of all the prosecution witnesses is not necessary" recall of certain witnesses was necessary for the reasons given in para 15(a) to (xx) on the application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is only he who would suffer - It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power Under Section 311 Code of Criminal Procedure is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice.
Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there are no ground to justify the recall of witnesses already examined.
The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination - appeal allowed.
-
2015 (9) TMI 1701
TP Adjustment - selection of MAM - TNNM OR RPM - HELD THAT:- On perusal of the order of the Tribunal, we find that the assessee had entered into international transactions for purchase of medical equipments and there was no dispute with regard to the method adopted by the assessee during its TP study. Such being the case, there is no reason as to why the assessee should not be allowed to adopt the same method even during the relevant A.Y.
On perusal of the TPO order, we find that the TPO has reproduced the parameters to be taken into consideration for adopting the RPM for comparability analysis, but except stating that the RPM method can be adopted only where the products are closely comparable, he has not given detailed reasoning as to why the said method is not applicable to the assessee. We find that the TPO has not brought on record any evidence as to how the products sold by the comparable companies are not similar to the products sold by the assessee herein. When the TPO desires to reject the method consistently being followed by the assessee and desires to adopt a different method, the TPO is required to give his reasoning which is absent in the case before us.
We deem it fit and proper to remand the issue to the file of the TPO for determination of the most appropriate method for determination of the ALP. Further we direct that if the TPO holds that the RPM is to be adopted as the most appropriate method, then the TPO shall also take into consideration the comparable companies selected by the assessee in addition to the companies selected by him for determination of the ALP.- Ground of assessee is treated as allowed for statistical purposes.
TDS u/s 194C - contribution towards sponsorships - HELD THAT:- The assessee relying upon Board Answer to Q. No.1 to lay stress on his argument that only if a payment is made to an advertising agency, the TDS provision of section 194C is applicable. However, we find that the Question Nos. 18 and 19 and answers to these questions are relevant to the case before us. In the case before us, as stated in the earlier paragraphs of this order, we find that the assessee had advertised itself by display of banners etc., during the seminars etc, sponsored by it. Therefore, the provision of section 194C is fairly applicable to the case before us. In view of the same, we uphold the findings of both the authorities below on this issue.
-
2015 (9) TMI 1700
Condonation of delay in filing appeal before the AAIFR - power of appellate authority to condone the delay - It was submitted that the period of 60 days expired on or around 15th September, 2013 and the appeal was affirmed on 18th January, 2014 and was actually filed 27th January, 2014 which was clearly beyond the period of 60 days - HELD THAT:- The order of BIFR was dated 17th July, 2013. Considering the maximum period of 60 days available under the aforesaid provisions, the appeal was required to be filed as per the submission on behalf of the petitioner latest by 15th September, 2013. The appeal was however filed on 27th January, 2014. It is stated by the petitioner that the appeal memo was affirmed on 18th January, 2014 and the appeal was filed thereafter on 27th January, 2014. The period prescribed in Section 25 being a period of 45 days extendable upto 60 days, is a special period of limitation and therefore, the contention was that the same was not further extendable or the delay was not condonable and the appeal was preferred after the expiry of the said period.
The impugned order passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi cannot sustain, for the only consideration that it does not contain reasons and does not deal with the various contentions of the parties and findings after considering all those contentions including the aspect of limitation raised by the petitioner. On the said ground alone, the same is deserved to be set aside and it is hereby set aside -
The proceedings of appeal are remanded to the appellate authority for rendering a fresh decision by it in accordance with law. While undertaking the exercise of deciding the appeal anew, and passing a reasoned order thereupon, the AAIFR shall give due opportunity of hearing to both the sides - Petition allowed by way of remand.
-
2015 (9) TMI 1699
Disallowance u/s 14A - As per assessee no exempt income was earned - HELD THAT:- A.O. as well as Ld. CIT(A) has not pointed out any income earned by assessee which was exempt income.There was no exempt income pointed out by the Revenue Authorities and A.O. had made addition holding that assessee had source of exempt income. Section 14A of the Income Tax Act cannot be invoked when no exempt income was earned. The case of assessee is fully covered in its favour by the order of M/s Mayank Auto Engineers P Ltd. vs. DCIT [2015 (3) TMI 1172 - ITAT DELHI] as well as the decision of CIT Vs Holcim India Pvt. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT]
As assessee had not earned any exempt income during the year disallowance u/s 14A was not warranted. - Decided in favour of assessee.
-
2015 (9) TMI 1698
Guilty of charge that appellant took ₹ 8.00 lacs from one Gurjit Singh son of Bahadur Singh of District Ludhiana, and got him sent illegally to United States of America - offences punishable Under Sections 406, 420 and 120B of Indian Penal Code (Indian Penal Code) and Under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- Rule 16.3 of Punjab Police Rules provides that when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge subject to certain conditions. In the present case, as is evident from Rule 16.3, requirement of not punishing the officer departmentally is not absolute, and it hinges on either of the five conditions mentioned above [(a) to (e)]. From the copy of the order of acquittal passed by the Judge, Special Court, Ludhiana (Annexure P-6), it is evident that the prosecution witnesses have turned hostile, and they appear to have been won over.
In Union of India and Anr. v. Bihari Lal Sidhana [1997 (3) TMI 604 - SUPREME COURT], this Court has observed that it is true that the Respondent was acquitted by the criminal court but acquittal does not automatically gave him the right to be reinstated into the service.
There are no illegality in the order passed by the High Court declining to interfere with the order of dismissal from service on the basis of evidence recorded in the departmental enquiry - appeal dismissed.
-
2015 (9) TMI 1697
Ad hoc disallowance of expenses - expenses claimed by the assessee are not fully verifiable, as no vouchers have been produced in respect of few expenses for verification - HELD THAT:- Ad hoc disallowance is not permissible under the law and if the Assessing Officer is not satisfied with a particular expense, he may make necessary verification and also to point out defect in the books of account, but ad hoc disallowance should not be made by making general observation. In the instant case, since ad hoc disallowance is made by making general observation, we do not find any merit in the addition made by the Assessing Officer. We accordingly delete the addition made on ad hoc basis after setting aside the order of the ld. CIT(A) - Decided in favour of assessee.
-
2015 (9) TMI 1696
Short deduction of TDS - TDS u/s 194J OR 194I - disallowance u/s. 40(a)(ia) relating to VSAT and lease line payments - CIT(A) holds that only proportionate disallowance is to be made in view of the fact that the assessee had already deducted TDS - HELD THAT:- It is evident that the co-ordinate bench in assessee’s own case for assessment year 2006-07 holds that the disallowance in question cannot be made because of shortfall in TDS deduction as per hon’ble jurisdictional high court decision in CIT vs. Prayas Engineering Ltd Tax [2014 (11) TMI 1086 - GUJARAT HIGH COURT] and CIT vs. S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT]. The Revenue fails to draw any distinction on facts or law. CIT(A) has erred in partially confirming the Assessing Officer’s action making the impugned disallowance of VSAT and lease line charges in question. The assessee’s arguments are accordingly accepted and that of the Revenue are rejected.
Disallowance of bad debts - assessee had claimed these amounts arising from downfall/market crash in Jan, 2008 due to which wealth of investors vanished and they were not in a position to pay the same as investment in question reached to negligible value resulting in huge unpaid liabilities. - HELD THAT:- CIT(A) follows lower appellate order in preceding assessment year deciding the issue in assessee’s favour. He quotes case law of TRF Ltd. [2010 (2) TMI 211 - SUPREME COURT] and DCIT vs. Shreys Morakhia [2010 (7) TMI 455 - ITAT MUMBAI] in support. We find that the co-ordinate bench (supra) has already rejected the Revenue’s identical ground in preceding assessment year. It does not point out any exception on facts or law in the impugned assessment year. The Revenue’s corresponding ground is decided in assessee’s favour.
-
2015 (9) TMI 1695
Disallowance of bad debts write-off - Amount written off by the assessee is on advance given by it to one PIE Education P. Ltd. - HELD THAT:- When assessee itself had not charged any interest on the amount advanced, it cannot say that any income from such loans were taken into account for computing its total income. For the simple reason that assessee had never charged any interest on the loan to PIE Education P. Ltd, such loan cannot be treated as money lent by the assessee in the ordinary course of a business of money-lending. In our opinion, assessee is squarely hit by the limitation placed by section.36(2)(i) of the Act. Claim of the assessee also cannot be considered as a business loss, for the reason that assessee was not in the business of providing education and training. Even if we presume that assessee was carrying on a business of lending money, the amount written off here was not lent in the course of money lending business.
Coming to the judgment of Hon’ble Apex Court in the case of T. R. F. Ltd [2010 (2) TMI 211 - SUPREME COURT], the question there was whether for a claim of bad debts, write- off in the books alone was sufficient - In the judgment of Amalgamations P. Ltd [1997 (4) TMI 8 - SUPREME COURT] question was whether loss incurred for providing bank guarantee for loans taken by a subsidiary could be allowed. Assessee here has nowhere stated that PIE Education P. Ltd is a subsidiary of the assessee company, nor was the write-off in relation to any bank guarantees.
As held that solitary transaction by itself could not be considered as an impediment for construing the meaning of money lending business. As against this, assessee here had advanced the money to PIE Education P. Ltd without any agreement regarding interest and that too not as a part of its lending activity, if at all it had any. Lower authorities were justified in disallowing the sum - Ground.3 of the assessee is dismissed.
Disallowance u/s.14A on account of assessee’s own submission - HELD THAT:- Sole grievance was that the disallowance u/s.14A of the Act made on account of assessee’s own submission, was considered by the AO as a disallowance made by the latter - As admitted addition we are of the opinion that assessee cannot have any grievance now. We do not find any reason to interfere in the order of lower authorities on this issue also. Ground.4 of assessee is dismissed.
-
2015 (9) TMI 1694
Transfer of property in goods or not - petitioner were carrying food supplies on behalf of the Department of Food & Civil Supplies, Government of Tripura - case of petitioner is that the work being done by them of transporting these food items does not fall within the ambit of the word sale - HELD THAT:- The Commissioner of Taxes has filed a reply and has clearly admitted that the case of the petitioners is squarely covered by this judgment - We could have disposed of the matter ourselves but we are of the view that the Commissioner himself should pass appropriate orders.
The petitioner shall appear before the Commissioner of Taxes personally or through counsel on 26th September, 2015 at 11.00 a.m. On the said day, the Commissioner shall dispose of their applications for refund and shall issue orders that the amount shall be refunded along with statutory interest latest by 31st December, 2015. In case, the amount is not refunded by 31st December, 2015 then the interest shall be payable @ 12% per annum from the date of filing of the writ petitions.
-
2015 (9) TMI 1693
Refund of CENVAT Credit in cash - petitioner goes out of Modvat scheme - bar under Section 11B of the CE Act or Rule 5 of the Cenvat Credit Rules, 2002 present or not - HELD THAT:- Benefit of input/input service used in the final products cleared for export can be put to the credit of the manufacturer/provider of output service, firstly towards duty of excise; secondly towards service tax and only if, for any reason, such adjustment is not possible, refund is allowed. The third option is an exception to the rule. Only and only if the first two options cannot be exercised, the third option can be resorted to.
In the instant case, no notification also stands issued by the Central Government. Also, it is not the case of the appellant that adjustment of refund cannot take place against the first two options provided for under the Rule. It is not a case where the appellant has totally closed down his business of manufacture or export. Hence, the Cenvat credit cannot be refunded in cash.
Appeal disposed off.
-
2015 (9) TMI 1692
Oppression and Mismanagement - Stay on increase in authorized Share Capital - Whether any stay is to be granted over an item for increase of authorised share capital in the AGM to be held on 23.09.2015? - HELD THAT:- It is evident that the respondents are in management they have been continuing in the management without any disputes for last several years, the only objection to the petitioners now is company should not go for rights Issue.
The company has been doing its business well; the petitioners have been getting revenue to their company SADL by selling its milk to R1 Company. That being the position, I don't see any point in the argument of the petitioners that company has not been giving any dividend to the shareholders. When the petitioners, through their own company, get revenue from R1 Company, they could not have said that the petitioners have been reinvesting the profits into R1 Company without any returns to the shareholders - The petitioners cannot say that company should alone go for debt not for rights issue. The minority cannot opt for the right under section 397 & 398 of the Act 1956 to stall the functioning of the company, when the act of the management is in the interest of the company. Since there is a decision to purchase dryer costing around ' 100 crores, it can't be said that there is no need to raise fund. Therefore, the argument of the petitioners counsel saying that there is no need for raising fund has no merit.
However since the respondents categorically mentioned that they will not invoke allotment of shares under B Class, the shareholding of the petitioners will not come down to 20% as stated by them, when the respondents have come forward saying that they will not allot any shares as B Class shares, there cannot be any more equity than this - here, in the case, the directors in the management indulged in all sorts of malafide acts and irregularities to dilute the aggrieved, therefore this cannot be applicable to the given facts of the case.
There are no merit to stay the agenda for increase of authorised share capital of R1 Company, this Bench hereby rejects interim relief seeking stay of the Agenda over increase of authorised share capital and also over other interim reliefs in respect of stay on minutes drawn on 16.07.2015 - the respondents are directed to file reply within 6 weeks hereof, rejoinder, if any, within 6 weeks thereof in the main petition.
-
2015 (9) TMI 1691
Refusal to direct an investigation - Section 19(1)(a) of the Competition Act, 2002 - closure of case under Section 26(2) of the Act - whether the appellant should be non-suited on the ground that he had not approached the Commission with clean hands and that he has been representing and espousing the cause of M/s. B.S.N. Joshi & Sons Ltd.?
HELD THAT:- A reading of the plain language of Section 18 shows that the Commission is under an obligation to ensure that practices having adverse effect on competition are eliminated. The Commission is also duty bound to promote and sustain competition, protect the interest of consumers, and ensure freedom of trade carried on by other participants in markets in India. Of course, the exercise of power under Section 18 is subject to other provisions of the Act. Section 19(1) empowers the Commission to inquire into the allegations of contravention of Section 3(1) of Section 4(1) of the Act. This can be done by the Commission on its own motion or on receipt of any information from any person, consumer or their association or trade association or on a reference made by the Central Government or the State Government or a statutory authority. While determining whether or not an agreement has an appreciable adverse effect on competition under Section 3, the Commission is required to take into consideration all or any of the factors enumerated in Clauses (a) to (f) of Section 19(3) of the Act.
It is significant to note thatParliament has neither prescribed any qualification for the person who wants to file an information under section 19(1)(a) nor prescribed any condition which must be fulfilled before an information can be filed under that section. There is nothing in the plain language of Sections 18 and 19 read with Section 26(1) from which it can be inferred that the Commission has the power to reject the prayer for an investigation into the allegations involving violation of Sections 3 and 4 only on the ground that the informant does not have personal interest in the matter or he appears to be acting at the behest of someone else - In a given case, the Commission may not act upon an information filed under section 19(1)(a) but may suo moto take cognizance of the facts constituting violation of Section 3(1) or Section 3(4) of the Act and direct an investigation. The Commission may also take cognizance of the reports appearing in print or electronic media or even anonymous complaint/representation suggesting violation of Sections 3 and 4 of the Act and issue direction for investigation under Section 26(1). The only limitation on the exercise of that power is that the Commission should feel prima facie satisfied that thereexist a prima facie case for ordering into the allegation of violation of Sections 3(1) or 4(1) of the Act.
Thus, the appellant cannot be non-suited by accepting the argument of the learned counsel for the respondents that he is espousing the cause of M/s. B.S.N. Joshi & Sons Ltd. The fact that the appellant is practising as an advocate with the counsel who has been representing M/s. B.S.N. Joshi & Sons Ltd. in other cases is not sufficient to draw a dubious inference that he is prosecuting the interest/cause of M/s. B.S.N. Joshi & Sons Ltd. That apart, the respondents have not disputed that the appellant is a consumer of electricity generated and supplied by Respondent No. 2. Therefore, its locus to file an information under section 19(1)(a) cannot be questioned.
Whether the majority order of the Commission is vitiated by an error of law and calls for interference under Section 53-B of the Act? - HELD THAT:-If in exercise of the appellate power vested in it under Section 53- B the Tribunal is satisfied that the negative opinion expressed by the Commission on the issue of existence of a prima facie case is vitiated by an error of law then it may set aside the impugned order and direct an investigation under Section 26(1) of the Act - A reading of the impugned order shows that while refusing to order an investigation into the allegations made by the appellant that Respondent Nos. 3 to 5 had formed a cartel and successfully prevented competition in the matter of award of liaison work for procurement of quality coal and supervision of transportation thereof, the majority of the Commission altogether over looked the unequivocal finding recorded by the Supreme Court in the order passed in Contempt Petition No. 245/2007.
Another grave error committed by the Commission is that even though it did take cognizance of the chart containing the rates quoted by Respondent Nos. 3 to 5 for the year 2010 but totally ignored the allegations made in the information and the documents filed on 15.10.2003. Thus there is no escape from the conclusion that the view expressed by the majority of the Commission that no prima facie case is made out for directing an investigation under Section 26(1) suffers from a patent legal infirmity.
The majority order of the Commission is set aside. The Director General shall now conduct investigation into the allegations contained in the information filed by the appellant under section 19(1)(a) and submit a report to the Commission within three months. However, it is made clear that while making investigation, the Director General shall not proceed on the premise that Respondent No. 2 was a part of the cartel - Appeal allowed.
........
|
9911796707
