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Showing 81 to 100 of 1471 Records
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2022 (1) TMI 1403
Re-classification of goods as per the HSN indicated in the supplier’s documents - recovery of differential duty under section 28(4) along with interest under section 28AA of Customs Act - penalties under sections 114A and 114AA of Customs Act - imported goods are general articles of iron and steel or whether they were parts of the OT crane system and HRSGS specifically designed for the purpose? - to be classified under customs tariff item 73089090 of the Customs Tariff Act, 1975 or not - HELD THAT:- It cannot be disputed that the goods should be classified as per their nature and as they are imported and that they cannot be clubbed with some other goods imported under other Bills of Entry to determine the classification. It also cannot be disputed that if the invoices describe or classify the goods differently, the assessee has to explain. In this case, the assessee discharged this burden by providing drawings and designs, explanation as to where each of the parts is used, an expert opinion that the goods were specifically designed for use in the plant and were not goods of general use, a Chartered Engineer’s certificate to the same effect.
The appellant has not produced any alternative drawings or designs or any evidence to show that the parts in question were only parts of general use and not ones designed for the plant. In the absence of any evidence in the appeal, it is not possible to fault the Commissioner for considering the reply to the consultative letter, the drawings and designs and the clarifications provided by the supplier to conclude that the parts in question were parts designed for the plant and were not ordinary articles of iron and steel.
The Commissioner has given her findings relying on Rule 1 (NOT RULE 2) of the General Rules of Interpretation, which states that classification shall be based on terms of the Tariff Headings and Section Notes and Chapter Notes and the titles of Sections and Chapters are for ease of reference only. She also referred to Section Note 1(f) to Section XV (under which Chapter 73 falls) which states that articles of Section XVI (machinery, mechanical appliances and electrical goods) are excluded from Section XV. She further relied on Section Note 2 of Section XVI, especially Note 2(b) which states that parts suitable for use solely or principally with a machine must be classified in the heading of the machine. General Rule of Interpretation 2(b), regarding which a submission is made, appears irrelevant to this case - What is important is to examine what are the imported goods intended to be. If they are articles of general use, they should be classified as such. If they are intended to be used in a particular way, they should be classified as such. If one imports a pillow and uses it to smother someone to death, it will be a murder weapon in the case under the Indian Penal Code but can still not be classified as a weapon under the Customs Tariff. It continues to be an article of bedding because it is intended to be used as an article of bedding and not as a weapon. What is relevant to classification whether the goods are goods of general use or they are designed for a particular use.
The imported goods, except the structural items on which the Commissioner confirmed the demand, were not general articles of iron and steel but were parts of the OT crane system and HRSGS specifically designed for the purpose - They were correctly classified by the Commissioner as parts of the power plant in the impugned order - They were correctly classified by the Commissioner as parts of the power plant in the impugned order.
The impugned order is, therefore, correct and proper and calls for no interference - Appeal of Revenue dismissed.
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2022 (1) TMI 1402
Dishonour of Cheque - vicarious liability - HELD THAT:- Application seeking exemption from filing C/C of the impugned judgment is allowed.
Issue notice - In the meantime, the proceedings qua the petitioner alone shall remain stayed.
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2022 (1) TMI 1401
Plea of alibi - fire arm injury - requirement to prove beyond reasonable doubt - discrepancy between the medical and ocular evidence - HELD THAT:- There is no discrepancy between the medical and ocular evidence but too much is sought to be made out by learned Counsel for the Appellant on the doctor not opining about the distance from which the fire arm injury was caused. Further, the eye witnesses are categorical that the other Accused attacked the deceased with knives. In such a process of five persons attacking the deceased it cannot be said that the deceased would be lying in the same position and, thus, there is every possibility of injuries both at the back and front. In the nature of the incident and the testimony of the eye witnesses, a doubt must be cast on the story and not merely some aspect of the food consumption pointed out.
The remaining arguments of learned Counsel for the Appellant are based on plea of defective investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal.
The last aspect urged by learned Counsel for the Appellant was that the IO has referred to the antecedents of the Appellant and other Accused, which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act, 1872. The said provision stipulates that the previous bad character is not relevant except in reply, i.e., unless evidence has been given of a good character in which case it becomes relevant - despite best endeavour learned Counsel for the Appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court.
The story put forth by the prosecution has been established and has not been dented by the Appellant Accused so as to cast a doubt and entitle them to benefit of doubt - Appeal dismissed.
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2022 (1) TMI 1400
Smuggling - Ganja - Section 50 of the NDPS Act - conviction u/s 20(b)(ii)(c) of the NDPS Act and - sentence to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh - HELD THAT:- The recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned Counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon.
Appeal dismissed.
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2022 (1) TMI 1399
Accrual of income - Waiver of term loan - nature of receipt - addition made by the AO by holding that the principal amount of loan/borrowings taken by the assessee from banks and which were waived off by the banks, was income of the assessee - HELD THAT:- So far as the term loans were concerned, these were taken by the assessee for the purpose of capital assets from time to time. With regard to this loan, the amount did not come into the possession of the assessee on account of any trading transaction; the receipts were capital in nature being loan repayable over a period of time along with interest. Therefore, on waiver of this term loan, no benefit or perquisites arose to the assessee in the revenue field. On the other hand, it is a capital receipt.
Thus, the waiver of the term loan cannot be treated as income of the assessee. However, waiver of overdraft, letter of credit, pre-shipment advance, export bills, benefit had arisen to the assessee. These loans were received in the course of carrying on business of the assessee even if it was treated as loan at the time of receipt of said loan and waiver of said amount will result in revenue receipt and to be liable for tax. Since it was the money had been borrowed for day-to- day affairs and not for purchase any capital assets, the said loan were not term loan taken for the acquisition or purchase of capital assets.
On the other hand, it is used as a circulating capital not as a fixed capital and the money was used in ordinary course of business in carrying the day-to-day affairs of the assessee. Being so, writing off the over draft cash credit, letter of credit, pre-shipment advance and export bills, etc. which was received for carrying out the day-to-day operation of the assessee and waiver of the same to be treated as income of the assessee u/s 28(iv) of the Act.
Similarly, interest waiver, if any and if it is allowed as a deduction in any earlier assessment years, then only the waiver of such interest could be treated as revenue receipt liable to tax u/s 41(1) of the Act. With this observation, we remit this issue in dispute to the file of AO for reconsideration. Appeal filed by the assessee is partly allowed for statistical purposes.
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2022 (1) TMI 1398
Revision u/s 263 - As pr CIT assessee has incurred advertisement and publicity expenses and AO allowed the expenses without appreciating the legal position - Pr.CIT initiated the revision proceedings with the view that the advertisement and publicity expenses incurred by the assessee in the television are not admissible due to the fact that these are illegal and contravenes the Cable Television Networks (Regulation) Act, 1995 - HELD THAT:- Assessee is advertising in the same mode of advertisement in earlier years as well as continued to advertise in subsequent years, we also observe that no authority who approves the advertising in the television has initiated any proceedings under the Cable Television Networks (Regulation) Act, 1995 as per which assessee has contravened any of the Act of the Cable Television Networks (Regulation) Act or levied any fines/penalties. In absence of any proceedings against the assessee, it clearly indicates that the advertisement made by the assessee in the televisions are within the provisions of the above said Cable Television Networks (Regulation) Act, 1995. Therefore, in the absence of any such proceedings the Income-tax authorities have no jurisdiction to presume that assessee has contravened any provision of the Cable Television Networks (Regulation) Act merely because assessee has several products to market some of them may be prohibited to advertise and others are not.
One cannot presume that the assessee is only promoting the products for which advertisements are prohibited as long as the advertisements are allowed to broadcast in the televisions which is approved by the proper authority, the assessee cannot be penalized by invoking the provisions of Cable Television Networks (Regulation) Act, 1995.
Thus in the absence of any adverse remark or penalties levied by the broadcasting authorities the Assessing Officer need not go into verification of regular expenditure which assessee was regularly claiming over the years. We observe that Assessing Officer has also collected several information before allowing the expenses claimed by the assessee. Therefore Ld. Pr.CIT cannot invoke the provisions of section 263 of the Act to reassess the completed assessment merely on the basis of presumption or with the view that assessee may have contravened the Cable Television Networks (Regulation) Act, 1995. Decided in favour of assessee.
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2022 (1) TMI 1397
Seeking grant of anticipatory bail - Making of colonies or not - applicability of section 339 of Municipalities Act - applicants remained absent before the Court of JMFC, Nagda on the date when chargsheet was filed against them - HELD THAT:- Considering the facts and circumstances of the case, material pointed out by learned counsel for both the parties, allegations made against the applicants, the bail application is allowed.
Petition disposed off.
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2022 (1) TMI 1396
Reversal of judgment of conviction and sentence awarded by the Fast-Track Court - acquittal of accused - HELD THAT:- In NEPAL SINGH VERSUS STATE OF HARYANA [2009 (4) TMI 981 - SUPREME COURT], this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the Accused on reappreciation of the evidence.
PW-7, who is the informant in his evidence, has resiled from what he had initially stated to the Police even though he claims to be an eye-witness to the occurrence. It has been established that Chandra Bhanu Prasad, though a resident of the locality, was not present during the occurrence of the incident. Similarly, the presence of Dhappu Ram and Fantush Mandal is doubted by PW-8. In fact, the Investigating Officer/PW-9 has also corroborated the fact that PW-7 had not stated anything about the bombs being thrown by Mahendra Ram, Upendra Ram and that there was no mention of Dhappu Ram. In the deposition of PW-3, there has been no mention of Dhappu Ram, Munna Ram and Mahendra Ram as also in the evidence of PW-2. Further, PW-4 who is an advocate and who is said to have prepared the written report, has not been categorical in his evidence. It is denied by PW-8 who is also an advocate and an attesting witness to the written report, that the bomb was thrown at the informant's shop and that it hit the informant's father who died as a result of the same.
It is observed that the Fast Track Court has failed to appreciate the evidence of PWs-1, 3, 4 and 7 in their proper perspective and has further failed to recognise the fact that PW-7/the Appellant herein did not at all support the case of the prosecution although he was the informant and hence, erroneously convicted the Accused and sentenced two of them with death penalty and the third Accused with imprisonment for life. The High Court was, therefore, justified in reversing the judgment and order of conviction passed by the Fast-Track Court.
The High Court was justified in reversing the judgment of conviction and sentencing the two of the Accused, namely Munna Ram and Mahendra Ram with death penalty and imposing Upendra Ram to undergo life imprisonment and instead acquitting all the Accused - having regard to the facts and circumstances of these cases and bearing in mind that there were two deaths in the incident that occurred on 10th March, 2005 which has not been proved beyond reasonable doubt, we set aside only that portion of the impugned judgment and order directing the trial court to initiate proceedings of perjury against the Appellant herein.
Appeal allowed in part.
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2022 (1) TMI 1395
Territorial Jurisdiction - Transfer of case to another Bench falling under the territorial jurisdiction of another High Court - cause of action for filing an Original Application Under Section 19 of the Administrative Tribunals Act, 1985 and determinative of the place of its filing would remain as the decisive factor? - power of judicial review - HELD THAT:- In NAWAL KISHORE SHARMA VERSUS UNION OF INDIA AND OTHERS [2014 (8) TMI 994 - SUPREME COURT], the issue concerned was with respect to the jurisdiction of a particular High Court against an authority/person residing outside its territorial jurisdiction. That question was considered with reference to Article 226(2) of the Constitution. It was held that writ could be issued if cause of action wholly or partially had arisen within the territorial jurisdiction of High Court concerned even if the person or authority against whom writ is sought for is located outside its territorial jurisdiction. However, it was held that in order to maintain such a writ petition, the Petitioner had to establish that such Respondents infringed his legal rights within the limits of the High Court's jurisdiction.
In NAVINCHANDRA N. MAJITHIA VERSUS STATE OF MAHARASHTRA [2000 (9) TMI 925 - SUPREME COURT], again the jurisdictional issue was considered with reference to Article 226(2) of the Constitution and held that the High Court concerned would have jurisdiction to entertain a writ petition if any part of the cause of action arose within its territorial limits even though the seat of government or authority or residence of persons against whom direction, order or writ is sought to be issued is not within its territory.
On a careful scanning of the aforesaid decisions relied on by the Respondent and consideration of the nature of the question that calls for decision in the case on hand and also what is observed earlier, it is found that the above decisions have no applicability for deciding the stated moot question.
Going by Section 25 of the Act, extracted an independent application for transfer of an Original Application filed and pending before any bench of the Tribunal could be filed and the power to transfer lies with the Chairman. The Section mandates that if such an application is made, notice of it has to be given to the opposite party. At the same time, the Section also provides that on his motion and without any such notice the Chairman could transfer any case pending before one Bench, for disposal, to any other Bench of the Tribunal. Evidently, the said Section recognizes, the fundamental principles of justice and fair play namely that 'Justice must not only be done but it must be seen to have been done'.
The law declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution.
The impugned judgment and final order passed by the High Court at Calcutta is to be held as one passed without jurisdiction and hence, it is ab initio void. Accordingly, it is set aside. The writ petition filed before the High Court at Calcutta is accordingly dismissed.
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2022 (1) TMI 1394
Cancellation of anticipatory Bail granted - Domestic violence - stridhan articles taken away by inlaws - case of petitioner is that the bank lockers have been operated after the grant of anticipatory bail, and therefore, tampering with the evidence i.e. stridhan and jewelry etc., would be a ground for cancellation of bail which should ordinarily be moved before the court granting bail.
HELD THAT:- There is a significant difference between an order rejecting an application for bail and an order for cancellation of bail. An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused. Whereas in the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted. A Court must tread with utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, should the Court then exercise its jurisdiction in seizing the liberty of an accused undertrial. Another reason for the Court to be more circumspect in setting aside an order granting bail is that, it involves review of a well-considered, reasoned judicial order granting bail. Personal liberty is one of the cherished constitutional freedoms.
An application for cancellation of bail is different from an application for grant of bail. While dealing with an application challenging the order granting bail, the Court has to see whether the order granting bail was vitiated by any serious infirmity or not. Ordinarily, High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge in favour of the accused if there is no serious infirmity in it. The order of the learned ASJ is a well reasoned order which does not require any interference from this Court.
This Court finds no merit in the arguments of the Petitioner. The Petition is accordingly dismissed.
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2022 (1) TMI 1393
Revocation of Suspension order - allegation against the delinquent was of demand and acceptance of bribe - HELD THAT:- In the case on hand, the writ petitioner/non-appellant is facing a criminal case for the offence under the provisions of the Prevention of Corruption Act, 1988. He was caught red-handed accepting the bribe. The learned Single Judge passed the judgment under appeal without referring to the Regulations applicable to the case and without realizing the seriousness of the offence.
In the case of STATE OF ORISSA VERSUS BIMAL KUMAR MOHANTY [1994 (2) TMI 307 - SUPREME COURT], the Apex Court caused interference with the interim order passed by the State Administrative Tribunal against the order of suspension despite registration of the criminal case in reference to allegation of acquisition of property disproportionate to the sources. The Supreme Court held that exercise of judicial review to interfere with a suspension order which has been passed despite a vigilance investigation which led to registration of a criminal case against the delinquent, is thus uncalled for.
The judgment of the learned Single Judge is set aside - it is directed to expedite the criminal proceedings against the delinquent and if it is not concluded within a reasonable time, then it would be open to the delinquent employee to make a representation to recall the suspension order which otherwise cannot be continued beyond a reasonable period, as it is pending for last two years - appeal allowed.
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2022 (1) TMI 1392
Reopening of assessment u/s 147 - notice issued after more than four years of the expiry of the relevant assessment year - onus is on respondent to show that there was failure on the part of petitioner to fully and truly disclose all material facts that was required for assessment - HELD THAT:- When the primary facts necessary for assessment are fully and truly disclosed, AO is not entitled on change of opinion to commence proceedings for reassessment. Even if the AO, who passed the assessment order, may have raised too many legal inferences from the facts disclosed, on that account the AO who has decided to reopen assessment, is not competent to reopen assessment proceedings.
Where on consideration of material on record, one view is conclusively taken by the AO, it would not be open to reopen the assessment based on the very same material with a view to take another view.
We also find from the records filed with the petition that a specific query had been raised by the AO and he had sought from petitioner pending details of reconciliation of ITS Information and petitioner had also replied to the same.
It is settled law that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the AO while completing the assessment. It is not even necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. Change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. [Aroni Commercials Ltd. [2014 (2) TMI 659 - BOMBAY HIGH COURT]]. Notice set aside - Decided in favour of assessee.
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2022 (1) TMI 1391
Seeking acceptance of claim - already an ‘Arbitration Proceedings’ going on with regard to claim of the Appellant qua the ‘Corporate Debtor’ - HELD THAT:- There is no ground to entertain this appeal challenging the order of the ‘Adjudicating Authority’.
It is observed that if the arbitration proceedings result in any award in favour of the Appellant, it shall be open to the Appellant to take such remedy as permissible under the law and impugned order shall not be come in his way in execution of the Arbitral Award.
The appeal is dismissed.
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2022 (1) TMI 1390
Rectification application - comparable selection for TP Adjustment - HELD THAT:- Exclusion of Allsec technologies the revenue ground is misplaced as TPO has himself excluded it from final comparable.
The other submission that the order should be modified to confirm exclusion of Axis Integrated Systems is not sustainable. The reading of the above order shows that the ITAT has not specifically dealt with the revenue ground relating to Axis Integrated Systems Ltd, raised by revenue in ground no 36. Hence, the Ld. Counsel of the assessee submission that exclusion of Axis Integrated Systems Ltd. is also adjudicated by the Tribunal is not correct. Since, this ground raised by the revenue has not been adjudicated, we recall ground No. 36 of revenue appeal for fresh adjudication. This miscellaneous application is partly allowed.
Apparent mistake rectifiable u/s. 254(2) - non adjudication of additional ground - HELD THAT:- As we note that the mistake apparent from the record has crept in the order of this Tribunal inasmuch as the aforesaid additional ground was not adjudicated by the Tribunal. Hence, there is a mistake apparent from the record. However in an MA, the ground on merits cannot be adjudicated
Hence, the order can only be recalled for the limited purpose of adjudicating this additional ground which had remained unadjudicated. Ld. DR has no objection with regard to this miscellaneous application inasmuch as, the recall will be only to adjudicate the issue which had by mistake remained unadjudciated. Accordingly, we recall the aforesaid order for limited purpose of adjudication of the aforesaid additional ground, which has remained to be adjudicated.
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2022 (1) TMI 1389
Delay in the initiation of the proceedings by SEBI - AO has skirted the issue on the ground that since the appellant did not act with skill, care and diligence, it proceeded to hold that the appellant cannot be absolved for the lapses incurred by him and accordingly imposed a penalty - HELD THAT:- Admittedly, the inspection was conducted in January / February 2012. Inspection was submitted on May 07, 2012 and a reply was given on June 14, 2012. Thereafter, nothing was done and the show cause notice was eventually issued on December 12, 2019 after 7 ½ years. There has been an inordinate delay in the issuance of the show cause notice.
The view taken by the AO is patently erroneous and cannot be allowed to stand. We are of the view, that when a defense is raised by the appellant it is the onerous duty of the AO, as a quasi judicial authority, to deal with the matter instead of skirting the issue and pushing it under the carpet without dealing with it. The ground raised and not dealt with amounts to judicial indiscipline. We are of the view, when a question of delay has been raised, it is imperative for the AO to deal with the issue.
In the instant case, we find that there is an inordinate delay in the issuance of the show cause notice. No explanation whatsoever has been given by the respondent as to why the show cause notice could not be issued earlier. In the absence of any justification, we are of the view that the show cause notice was not issued within a reasonable time and, in fact there has been an inordinate delay in the issuance of the show cause notice. We are further of the opinion, that old and stale disputes should not be raised.
Thus the impugned order cannot be sustained and is quashed. The appeal is allowed with costs.
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2022 (1) TMI 1388
TDS u/s 195 - Royalty - amounts paid by the concerned persons resident in India to non-resident, foreign software suppliers - Whether constitutes as taxable income deemed to accrue in India u/s 9(1)(vi) or not? - income deemed to accrue or arise in India - As decided by SC [2021 (3) TMI 138 - SUPREME COURT] given the definition of royalties contained in Article 12 of the DTAAs it is clear that there is no obligation on the persons mentioned in section 195 of the Income Tax Act to deduct tax at source, as the distribution agreements/EULAs in the facts of these cases do not create any interest or right in such distributors/end-users, which would amount to the use of or right to use any copyright - HELD THAT:- List these matters for hearing before the Court after the resumption of physical hearing.
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2022 (1) TMI 1387
Business Expenditrue - Deduction u/s 37(1) - assessee advanced money for the purpose of purchase of material to construct the hotel building - HELD THAT:- As it is clear that the amount paid to various vendors for supply of construction material for construction of hotel building was not in the normal course of business of assessee. Since the amount was given for the purpose of creation of capital asset, the same cannot be treated as a revenue loss, but a capital loss. Accordingly, the debt arisen in the normal course of business is revenue in nature, but in the present case, the debt arose in the field of capital investment and writing off the same was in the nature of capital loss and cannot be allowed as a deduction. This ground of the assessee is dismissed.
Accrual of income - incentive deposit received for rebranding of the hotel - AO observed that the 'incentive' has been received during the year under consideration for rebranding of the hotel and corresponding expenditure has been debited in the instant year itself, the amount received is an revenue receipt - HELD THAT:- The argument of the assessee is that income not at all accrued to the assessee, as such, incentive cannot be taxed in the hands of the assessee in the year under consideration. In our opinion, the assessee is following mercantile system of accounting.
The assessee treated the expenditure as an asset and claimed depreciation on it and charged it to P&L account. However, corresponding incentive received by the assessee towards brand building has been shown as liability which is against the provisions of Section 5 of the Act. Accordingly, AO rightly brought it to tax. The assessee cannot postpone it on the reason that it is liability and there is likelihood of repaying the amount in a phased manner after 5th of every year in case agreement is prematurely terminated. If the assessee refunds back to the payer, then it could be claimed as deduction in the year in which was paid back by the assessee. Decided against assessee.
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2022 (1) TMI 1386
TP adjustment - Intra Group Services paid to AE for failing transfer support services - HELD THAT:- As undisputed fact that all the issues involved are covered by the decision of the Tribunal in assessee's own case[2020 (2) TMI 156 - ITAT DELHI].
In fact the ld. DRP has categorically directed the AO to verify from the record if no appeal has been preferred by the Department before the Hon'ble High Court against the order of the Tribunal for assessment year 2015-16, then no addition should be made and it was only subject to the fact that if any appeal has been filed before the Hon'ble High Court then only addition should be sustained. Now it has been brought on record that no appeal has been preferred by the Department before the Hon'ble High Court and, therefore, the order of the direction of the DRP to delete the addition as the decision of the Tribunal is upheld - Appeal of assessee allowed.
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2022 (1) TMI 1385
Unexplained investment u/s 69 - ‘on money’ paid for purchase of the said land through its partner and the payment of ‘on money’ in cash is not recorded in the books of account - HELD THAT:- We find that DR failed to controvert the facts that firstly the additions were made simply on the basis of statement of power of attorney holders, secondly the addition was made without providing any opportunity of cross examination to the assessee with the 3rd party on whose statement addition has been made, thirdly, the additions are made merely on the basis of oral evidences and there is no evidence on record which could prove that the seller has received ‘on money’ and offered the same before the revenue authorities and lastly the addition seems to be made on assumption and presumption as except the registered sale deed no other incriminating material was found during search proceedings which could indicate that the alleged ‘on money’ has been paid by the assessee.
As in the finding of ld. CIT(A) are inclined to hold that no addition u/s 69 was called for in the hands of assessee. No infirmity in the finding of ld. CIT(A) and the same is confirmed. Decided against revenue.
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2022 (1) TMI 1384
Application filed u/s 9 of IBC, rejected on the ground of pre-existing dispute - police complaint evidences the dispute between the parties or not - HELD THAT:- The Adjudicating Authority has observed the fact that the police complaints were registered by the Appellant and cross-complaints were also registered by the ‘Corporate Debtor’ is evidence of facts, that dispute has arisen between the parties which was pending investigation by the police.
When the allegations against each other are serious allegations including allegations of offence against each other, we are not convinced by the Appellant that police complaint do not evidence any dispute between the parties. It is to be noted that all the aforesaid complaints are much before initiation of proceedings u/s 9 by the Appellant. The Adjudicating Authority has not committed any error in relying of the facts and materials on record to come to the conclusion that there was pre-existing dispute between the parties.
The IBC proceedings are not for the purposes of adjudicating such dispute between the parties and are not the recovery proceedings to recover the unpaid amount by the official creditor whose claim is disputed by the ‘Corporate Debtor’ - appeal dismissed.
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9911796707
