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Showing 81 to 100 of 1387 Records
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2016 (2) TMI 1313
Jurisdiction to pass an order in respect of appointing a Special Public Prosecutor to conduct the petitioner’s son’s death case - Rule 4(5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - HELD THAT:- It is seen that the matter is pending before the Sessions Court for trial. The power to appoint a Special Public Prosecutor under the Criminal procedure Code is entirely different from the one laid down under the SC/ST (PoA) Act, 1989. It is no doubt true that under the Code of Criminal Procedure, the Government is the ultimate authority to appoint a person in terms of Section 301 Cr.P.C.
The contention of the respondents that in the event of the aggrieved party choosing a lawyer of his choice from other States, it will have a bearing on the Government financially, cannot be accepted, as Rule 4(6) clearly stipulates that payment of fee vests only with the Government and selection of the lawyer is with the victim. The fee fixed other than the one fixed by the Government cannot be sought to be increased either by the victim or by the relative of the victim or the lawyer, who is appearing for the victim/relative of the victim. It is to be noted that SC/ST (PoA) Act, 1989 is a Special Act enacted to view seriously the atrocities committed on the members of the downtrodden communities, the objective of which is enumerated by including Sections 20 and 21 in the Act.
Firstly, the entire Rule 4(1) of the SC/ST (PoA) Act, 1989 has got to be read as a whole and not in isolation. Even assuming for the sake of argument that Rule 4(1) has got to be read alone, it deals with the preparation of panels and it is not mandatory on the part of the victim/relative of the victim to choose a lawyer only from the panel.
In the impugned order, it has been merely stated that the 1 st respondent has no jurisdiction to appoint a Special Public Prosecutor, but while arguing the case, the respondents are trying to improve their case by relying on various Rules and Acts irrespective of what is stated in the impugned order, which cannot be permissible, as the Hon'ble Supreme Court in the case of MOHINDER SINGH GILL & ANR. VERSUS THE CHIIEF ELECTION COMMISSIONER, NEW DELHI & ORS. [1977 (12) TMI 138 - SUPREME COURT], has clearly held that by way of a counter, the reasons not stated in the impugned order cannot be improved by the respondent concerned. Therefore, what is not stated in the impugned order cannot be allowed to be canvassed before this Court.
Petition allowed.
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2016 (2) TMI 1312
Seeking adjustment of refund and interest on refund - seeking remission of future tax liabilities on grounds that the petitioner company had incurred loss due to flood and erosion caused by the mighty Brahmaputra river - HELD THAT:- Admittedly, the refunds due to the petitioner for the assessment Year 1986-87 to Assessment Year 1992-93 had not been set off against the sum due from the petitioner in respect of the Assessment Year 2013-14. Also, the application made by the petitioner under Section 39A of the Act has not reached its logical conclusion. The requirement of law under Section 39 of the Act is that the Superintendent of Taxes or the Agricultural Income Tax Officer is required to refund to an assessee any sum paid by the assessee in excess of the sum due from the said assessee under the Act. Discretion vests with the assessee to opt for receiving the amount by way of set-off against the sum in respect of any other assessment year. The provision for payment of interest for delay caused in making refund is also provided. As regards the remission under Section 39 A, the State Govt. for the purpose of remitting the whole or part of the amount of the tax, interest or penalty payable in respect of any year by an assessee, the conclusion has to be reached by recoding reasons in writing.
In the instant case, the exercise required to be undertaken in adjusting the amount refundable along with interest had not been done, as would be apparent from the Assessment Order itself.
The objection raised with regard to the maintainability of the writ petition is not required to be gone into having regard to the facts and circumstances of the case and also having regard to the limited prayer made by the petitioner.
This writ petition stands disposed of with direction to the respondent authorities to consider the application of the petitioner made under Section 39A of the Act and also to take such necessary steps towards adjustment of the assessed refund due to the petitioner from the Assessment Year 1986-87 to Assessment Year 1992-93 and to make a fresh assessment in respect of the Assessment Year 2013-14 - Petition disposed off.
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2016 (2) TMI 1311
Seeking concession of pre-arrest bail - Sections 7/8/13(2) read with Section 13(1)d 1 and 2 of the Prevention of Corruption Act, 1988 - HELD THAT:- Notice of motion, returnable for 26.04.2016.
The petitioner is directed to appear before the Investigating Officer and to join investigation - In the event of arrest, the petitioner shall be released on interim bail subject to the satisfaction of the Arresting/Investigating Officer. The petitioner shall join investigation as and when called upon to do so and he shall remain bound by the conditions envisaged under Section 438(2) Cr.P.C.
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2016 (2) TMI 1310
Reversal of CENVAT Credit - non-receipted quantity of the inputs from the job worker’s premises - Rule 4(5) of the Cenvat Credit Rules, 2004 - principles of natural justice - HELD THAT:- Rule 4(5) of the Cenvat Credit Rules, 2002 does not require return of the waste and scrap from the job workers premises. The Commissioner (Appeals) also took the view that non-entering of particulars in challan or in job work register is a procedural infraction, for which the benefit of Cenvat cannot be denied - the test report based on which the Commissioner (Appeals) has arrived at the conclusion regarding generation of the waste was also available before the Original Authority.
The principle of natural justice in this case has been violated inasmuch as the Commissioner (Appeals) has decided the case solely based on the documents without giving the opportunity to the Revenue Respondent to properly put forth their case before the Commissioner (Appeals) - matter remanded back to the original authority for a fresh fact finding on the additional documents submitted by the Respondent before the Commissioner (Appeals) - appeal allowed by way of remand.
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2016 (2) TMI 1309
Disallowance of deduction claimed u/s 80IA in respect of interest income from deposits - assessee submitted that interest was received from deposits - HELD THAT:- This Tribunal in the assessee’s own case for assessment year 2008-09 [2013 (9) TMI 1256 - ITAT CHENNAI] found that the interest income is not eligible for deduction u/s 80IA of the Act. In view of the above, this Tribunal do not find any reason to interfere with the order of the lower authority. Moreover, the interest income is not from business of the assessee. The source of income is from deposits made by the assessee, therefore, it is not eligible for deduction u/s 80IA of the Act. Accordingly, the order of the CIT(A) is confirmed.
Deduction in respect of other income - HELD THAT:- Since in assessee’s own case for assessment year 2008-09, a co-ordinate Bench of this Tribunal found that other income is not eligible for deduction u/s 80IA of the Act and the CIT(A) has followed the order of this Tribunal, we do not find any reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed.
Exclusion of expenditure in respect of income which does not form part of the eligible profit for deduction u/s 80IA - HELD THAT:- What was not excluded in the eligible profit for computation of deduction u/s 80IA is interest received by the assessee from fixed deposits and other income. For earning interest from fixed deposits, the assessee need not spend any money or incur any expenditure. The details of other income are not available on record and no material is available on record to indicate that the assessee has incurred any expenditure for earning the other income. In those circumstances, this Tribunal is of the considered opinion that exclusion of the so called expenditure does not arise for consideration.
Disallowance of gratuity amount paid to LIC - HELD THAT:- Creation of the trust is a mandatory pre-condition for payment of contribution by the assessee. In the case before us, for the year ended 31.3.2005, the trust was not created. The trust was created on 2.5.2015. Therefore, it cannot be said that the fund was paid for the irrevocable trust created exclusively for the benefit of the employees. In the absence of any material to indicate that the assessee has created an irrevocable trust, this Tribunal is of the considered opinion that the judgment of M/S TEXTOOL CO. LTD. [2009 (9) TMI 66 - SUPREME COURT] may not be applicable to the facts of the case. In view of the above, this Tribunal do not find any reason to interfere with the order of the lower authority. Accordingly, the same is confirmed.
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2016 (2) TMI 1308
Disallowance of deduction u/s 80IA in respect of interest income - assessee has received interest on fixed deposits made with banks - deposits were made from the advance received from the tenants for occupying the commercial space - HELD THAT:- Deduction u/s 80IA is to be allowed on the profit derived by an undertaking from the business of developing or operating and maintaining infrastructure facilities. In this case, admittedly, the interest income was not derived from the industrial undertaking but from the deposits made by the assessee from the banks. Therefore, the interest income has to be necessarily classified as income from other sources and hence, it cannot be construed as derived from industrial undertaking. Therefore, the assessee is not eligible to claim deduction u/s 80IA in respect of interest income.
Deduction u/s 80IA in respect of other income other than interest income - HELD THAT:- For earning interest income from bank, the assessee is not expected to incur any expenditure. Therefore, the assessee cannot claim any expenditure for earning interest income from fixed deposits. In respect of other income other than the interest income from fixed deposits, this Tribunal is of the considered opinion that the assessee is eligible for exemption u/s 80IA, therefore, the alternative claim made by the assessee does not survive in respect of the income from other sources other than the interest income. Therefore, the alternative ground raised by the assessee is dismissed.
Disallowance u/s 43B being provision of 80% of cenvat credit amount relating to service tax - Raising a specific ground as Ground No.29 before the CIT(A) - HELD THAT:- It is an admitted fact that the assessee has contested disallowance u/s 43B of the Act being provision of 80% of cenvat credit amount relating to service tax. Admittedly, this ground raised by the assessee as Ground No.29 was not disposed of by the CIT(A). Therefore, this Tribunal is of the considered opinion that the CIT(A) has to dispose of this specific ground raised by the assessee as Ground No.29. Accordingly, this ground raised by the assessee with regard to disallowance u/s 43B is remitted back to the file of the CIT(A). The CIT(A) shall consider and decide the issue in accordance with law after giving a reasonable opportunity to the assessee.
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2016 (2) TMI 1307
Assessment of trust - Depreciation claim of assessee trust - HELD THAT:- We are constrained to hold that the assessee would not be entitled to claim the benefit of depreciation for the purpose of section 11 - it is pertinent to mention that section 11 is a section with a legal fiction, wherein, when registration is granted to a charitable institution under section 12A of the Act, income from the trust is not brought into the ambit of tax on fulfilling certain conditions.
Similarly, section 32 of the Act is also a provision with a legal fiction wherein notional amount is determined on the cost/WDV of the asset by applying the rate of depreciation specified in the Income Tax Rules and that is allowed as deduction while arriving at the business or profession income of the assessee.
A provision with fiction cannot be superimposed on another provision with fiction for arriving at the income of the assessee. For the aforesaid reasons, we are of the considered view that the assessee will not be entitled to claim depreciation under section 32 of the Act for arriving at the income of the assessee under section 11. Accordingly, we hereby confirm the order passed by the learned Assessing Officer and set aside the order passed by the learned Commissioner of Income Tax (Appeals).
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2016 (2) TMI 1306
Addition on account of transfer pricing adjustment on the international transaction of ‘Payment of Corporate expenses.’ - assessee has submitted an application under Rule 29 of the Income-tax Appellate Tribunal Rules, 1963, filing additional evidence - AR contended that these documents could not be filed before the authorities below because of their non-availability from its AEs at the material point - HELD THAT:- As observed that similar position prevailed in the assessment of the immediately preceding assessment year, namely, 2008-09. The assessee filed additional evidence before the Tribunal in support of its claim on the disallowance of payment of ‘Corporate expenses.’ The Tribunal vide its [2014 (9) TMI 517 - ITAT DELHI] order dated 29.8.2014 in ITA No.5765/Del/2012, has admitted the additional evidence and remitted the matter to the file of AO/TPO for a fresh determination of the ALP of this international transaction in the light of such additional evidence. A copy of such order has been placed on record. In the absence of any distinguishing feature in the facts of the instant year vis-à-vis the preceding year and respectfully following the precedent, we also admit the additional evidence and send the matter back to the file of AO/TPO for fresh determination of the ALP of this international transaction, after allowing a reasonable opportunity of being heard in the light of the additional evidence filed before us.
Transfer pricing adjustment on the international transaction of ‘Payment of Royalty’ - payment akin to the payment of fees for the use of technical know-how - HELD THAT:- TPO proposed the transfer pricing adjustment with Nil ALP of the international transaction of `Payment of royalty’ on the ground that no such payment was warranted and further no cost benefit analysis on this count was brought to his notice and as such the payment of royalty was not required.
AO in his final assessment order dated 26.12.2013 has taken the ALP at Nil on the basis of recommendation of the TPO without carrying out any independent investigation in terms of the deductibility or otherwise of such payment in terms of section 37(1) of the Act. As per the ratio decidendi of Cushman & Wakefield India (P.) Ltd. [2014 (5) TMI 897 - DELHI HIGH COURT] the TPO was required to simply determine the ALP of this transaction unconcerned with the fact, if any benefit accrued to the assessee and thereafter, it was for the AO to decide the deductibility of this amount u/s 37(1) of the Act.
Since the authorities below have acted in contradiction to the ratio laid down in Cushman & Wakefield (supra), we set aside the impugned order on this score and remit the matter to the file of AO/TPO for deciding it in conformity with the law laid down by the Hon'ble jurisdictional High Court in the case of Cushman & Wakefield (India) (P.) Ltd. (supra).
Disallowance u/s 14A as per Rule 8D - AO made disallowance @ 0.5% of the average investments, which resulted into addition - HELD THAT:- Having regard to the facts of the instant case and the submissions advanced on behalf of the assessee about the confirmation of similar disallowance u/s 14A by the tribunal for the immediately preceding year @ 0.5% of the average value of investments in terms of Rule 8D(2)(iii), we approve the action of the AO in making the disallowance to this extent alone. This ground fails.
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2016 (2) TMI 1305
Disallowance u/s 14A r.w.r.8D - whether disallowance u/s 14A can exceed exempt income or not? - HELD THAT:- Hon’ble Delhi High Court in the case of Joint Investment Pvt. Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] has held that disallowance u/s 14A rwr Rule 8D cannot exceed the entire tax exempt income. Respectfully following the decision of Hon’ble Delhi High Court the disallowance is required to be restricted to ₹ 1,65,492/- only. However, as the assessee on its own has made disallowance in the return of income, we restrict the disallowance as made by the assessee own its own. In view of this ground No.1 of the appeal is allowed reversing the order of the learned Commissioner of Income-tax (Appeals) and disallowance of ₹ 16,24,198/- is directed to be deleted. The appeal of the assessee is partly allowed.
Disallowance of Provident Fund - assessee has deposited employer’s contribution to the Provident Fund towards where the PF trust has made investments which are not permitted. AO did not considered this trust as recognized Provident Funds under Income Tax Act - HELD THAT:- This issue is taken up by the assessee before the learned Commissioner of Income-tax (Appeals) who in turn deleted the addition stating that since the trust is already registered and learned Commissioner of Income-tax has not revoked the registration of the trust , AO is not empowered to treat it as unrecognized fund. Further CIT (A) has also recorded finding that the matter is already decided in favour of the appellant by the orders of coordinate bench for Assessment Year 2003-04 to 2007-08 dealing identical issue in favour of the assessee and the appeal of the revenue is also dismissed by Hon’ble Delhi High Court. In para 5.4 of the order of ld CIT(A) he has dealt this disallowance. Ld. DR could not point out any infirmity in the same and therefore we confirm the order of CIT (A) in deleting the disallowance on account of employers’ fund contribution made by the assessee to the recognized fund. ground No.1 of the appeal of the revenue is dismissed.
Disallowance as prior period expenses - assessee while computed the income under normal computation mechanism has added this, However it was not added while calculating the book profit tax u/s 115JB - HELD THAT:- Commissioner of Income-tax (Appeals) has dealt with this issue vide para No.5.6 of his order and he followed decision of Hon’ble Delhi High Court in the case of Khaitan Chemical and Fertilizers [2008 (9) TMI 89 - DELHI HIGH COURT] where in the addition is deleted holding that there is no such adjustment required to be done according to the provision of section 115JB on account of prior period expenditure. We do not find any infirmity in the order of ld CIT(A), none has been pointed out by the ld DR. In view of this we confirm the order of LD CIT (A) in deleting the addition of prior period expenditure while computing book profit tax u/s 115JB of the Act.
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2016 (2) TMI 1304
Denial of Exemption claim - 100% EOU - additional duty of excise under the Finance Act, 1999 - Scope of Notification No.22/2003 - It was held by High Court that The Finance Act levying the additional excise duty was enacted only in the year 1999, i.e., after first notification of the year 1994 - HELD THAT:- The decision of High Court upheld - SLP dismissed.
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2016 (2) TMI 1303
Permission for withdrawal of petition - Clandestine removal of goods - manufacturing of carbon black - excess weight over and above weight of packing material - excess weight over and above standard excess weight - Duty demand u/s 11A - Penalty imposed under Rule 209A - HELD THAT:- Permission granted.
The special leave petition is dismissed as withdrawn.
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2016 (2) TMI 1302
Dishonor of Cheque - notice issued upon the director/authorized signatory of the company - validity of notice issued under Section 138(b) of the Negotiable Instruments Act, 1881 - HELD THAT:- Petitioner No. 2 to whom the notices were addressed is the director and authorised signatory of the company who represented the company throughout the transaction which is the subject-matter of the impugned prosecution. It is claimed that he had signed the agreement from which the liability arose in respect whereof the dishonoured cheque was issued. He is also alleged to be the signatory of the cheque and had received the notice of dishonour at the registered office of the company. Under such premises, the petitioner No. 2 can be safely assumed to be the alter ego of the company. He is the principal director of the company and was the human agency representing the company in the transaction which is the subject matter of prosecution. A corporate entity has to function through a human agency and the mental state of such human agency is attributable to the company. Hence, knowledge of petitioner No. 2 of such notice and his response thereto can be attributed to the juristic entity as the former is nothing but the alter ego of such corporate entity.
Negotiable Instruments Act is a legislation operating in the commercial field and section 138 thereof was incorporated to give tooth and claw to the legislation so as to ensure greater accountability and creditability in commercial transactions relating to cheques. This legislative intention ought to be the guiding principle while construing the validity of notice issued under the aforesaid provision of law - The issue as to whether a notice issued upon the director/authorized signatory of the company can be deemed to be a valid notice under Section 138(b) of the Negotiable Instruments Act fell for consideration Bilakchand Gyanchand Co. Vs. A. Chinnaswami [1999 (3) TMI 620 - SUPREME COURT] and Rajneesh Aggarwal Vs. Amit J. Bhalla [2001 (1) TMI 855 - SUPREME COURT]. In Bilakchand, notice issued upon the Managing Director/signatory was held to be a valid notice under Section 138(b) of the Act.
The petitioner No. 1 company had sufficient notice of dishonor of the cheques and had failed to make payment within the stipulated time and the impugned prosecutions are not liable to be quashed on such score - the revision petitions are dismissed.
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2016 (2) TMI 1301
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Since the tax effect is low, we are not inclined to entertain these appeals or interfere with the impugned order - Appeal dismissed on this ground alone, leaving the question of law open. No costs.
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2016 (2) TMI 1300
TDS u/s 194H - Disallowance u/s.40(a)(ia) - not deducting the TDS on Credit Card commission charged by bank on credit card transaction - HELD THAT:- As decided in own case [2015 (8) TMI 1476 - ITAT MUMBAI] payment of commission to banks with regard to the processing of credit card transactions was not liable to be considered as a ‘commission’ within the meaning of section 194H.
The bank does not act as an agent of the assessee while processing the credit card payments and a charge collected by the bank for such service does not amount to ‘commission’ within the meaning of section 194H.
In view of the aforesaid Judgment of Hon’ble Delhi High Court in the case of JDS Apparels P. Ltd.[2014 (11) TMI 732 - DELHI HIGH COURT] we hereby affirm the conclusion of the CIT(A) to the effect that the impugned disallowance made by the AO by invoking section 40(a)(ia) is unsustainable. - Decided in favour of assessee.
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2016 (2) TMI 1299
Addition on account of notional income under the head "Income from House Property" - HELD THAT:- It is admitted before us that fact and circumstances of the issue involved is identical to earlier years. A perusal of order passed by the jurisdictional high court revels that the notional addition has been deleted by their Lordships [2010 (11) TMI 798 - DELHI HIGH COURT] - Respectfully following the decision of jurisdictional high court above ground No.1 of the Revenue appeal is dismissed.
Disallowance of interest expenditure claimed by the assessee - as claimed by the assessee that during the year under consideration no interest cost was debited as expenditure in the Profit & Loss Account and hence there was no such claim made in the return of income. - HELD THAT:- CIT-A correctly find that during the FY relevant to the AY under consideration, the appellant company has not paid any interest to the banks as stated by the ld. AO. The finance charges debited to the profit & loss a/c pertains to various services extended by the bankers to the appellant company. In such circumstances, no disallowance on account of advances made was liable to be made - After careful consideration of the issue we do not find any infirmity in the view adopted by CIT(A) in deleting the addition - Decided in favour of assessee.
Addition on account of extra depreciation claimed on computer peripherals - Case records show that during the year under consideration assessee has claimed depreciation on computer peripherals at the rate of 60%, however, this was restricted by the Ld. AO to the rate of 15% - HELD THAT:- CIT(A) has deleted the disallowance by following the decision of Hon'ble Delhi High Court in the case of BSES Yamuna Power Ltd.[2010 (8) TMI 58 - DELHI HIGH COURT]. After careful consideration of the case records we find no reason not to uphold the view taken by CIT(A) by following decision of jurisdictional high court noted above. As such ground No.3 of Revenue Appeal is also dismissed.
Disallowance u/s 14A read with Rule 8D - HELD THAT:- We principally agree with the said contention of the assessee. The AO should have first examined the books of accounts of the assessee and only thereafter if he was not satisfied with the claimed by the assessee that it had not incurred any expenditure for the purpose of any exempt income that he could have invoked provisions of Rule 8D. In the instant case Ld. AO has failed to adopt this mandatory procedure. It is also seen that even the assessee has not been able to substantiate its claim before the lower authority. In our considered opinion this issue requires fresh examination at the end of the AO. Accordingly we set aside the order of Ld. CIT(A) on this issue and direct the AO to examine this issue afresh in light of discussions made.
Disallowance on account of license fees paid by the assessee to New Delhi Municipal Corporation (NDMC) - HELD THAT:- As exonerates the claim made by the assessee. As per interim order dated 06th February 2002 assessee has been making payments to NDMC from FY 2001-02 onwards. For all these years i.e FYs 2001-02 FY 2013-14 even after payment of ₹ 75 lakhs per month initially and ₹ 1 crore per month thereafter the final liability determined in year 2015 was much more. Contingency if at all during FYs 2001-02 to 2013-14 was vis a vis ₹ 150.09 cr which finally became determinable in year 2015. However for the year under consideration the payment of ₹ 12 cr was a confirmed liability, which NDMC accepts as not being subject to further litigation before Delhi High Court. Considering the peculiar facts of the present case we therefore hold that the appellant was entitled to claim deduction of ₹ 12 crores paid by it to NDMC as License Fees under License Deed dated 14th July 1984. Decisions relied upon by the Ld AO in his order of assessment are also not relevant since these are decisions wherein certain provisions made in books of accounts were sought to be claimed as a deduction, per contrary this is a case where liability actually being discharged is being claimed as deduction. We accordingly hold that appellant merits succeeding in its claim.
Reopening of assessment u/s 147 - HELD THAT:- Facts relied upon by the Ld AO in support of his reasons to belief i.e note no. 2(iii) was duly considered by him during the course of original assessment. No fresh facts have also come to the knowledge of Ld AO justifying a fresh initiation of action u/s 147 of the Act. It is trite law that when a specific query raised by the AO is replied to by the assessee during the course of original assessment then it cannot be said that there is any failure or omission attributable to the assessee. As relying on HARYANA ACRYLIC MANUFACTURING COMPANY VERSUS COMMISSIONER OF INCOME-TAX IV AND ANOTHER [2008 (11) TMI 2 - DELHI HIGH COURT] we concur with the submission made by the appellant that the assumption of jurisdiction u/s 147 of the Act in this instant case by issuance of notice u/s 148 dated 26th February 2010 is bad in law
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2016 (2) TMI 1298
Deduction u/s 80IB(10) - Tribunal directing the assessing authority to give deduction under section 80IB(10) of the Act if the assessee has completed construction as guided by the decision of this Court in case of Ittina Properties [2014 (8) TMI 388 - KARNATAKA HIGH COURT] - as per revenue the assessee had failed to file audit report in Form-10CCB along with the completion certificate obtained from the Local Authority showing the completion of construction of the building/apartment as required under the law to claim deduction under section 80IB(10) - HELD THAT:- This Court, in the case of Ittina Properties [Supra] did not take the view only because completion certificate from Panchayat was produced, but on the contrary, in the said decision it was found by this Court that neither in the Income Tax Act nor in Karnataka Municipal Corporations Act, is there any provision for issuance of completion certificate by the local authorities and therefore, Revenue ought not have insisted for production of such certificate for getting benefit under the Income Tax Act. Therefore, distinction as sought to be canvassed by the learned counsel for the appellant-Revenue would not dilute the legal position as held by this Court in the above appeal.In any event, for examination as to whether the construction was completed or not, the matter is remanded by the Tribunal. When the Tribunal had followed the decision of this Court, we do not find that any substantial question of law would arise for consideration as sought to be canvassed. Hence, the appeals are dismissed.
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2016 (2) TMI 1297
Rectification of mistake u/s 254 - specific ground no. 2 raised for jurisdiction that assessment framed u/s. 144/147 of the Act is bad in law has not been adjudicated - HELD THAT:- We found that ground no.2 raised by assessee is not at all adjudicated by the Tribunal and hence, qua this ground we recall the order. The registry will fix this appeal in regular course for hearing ground no.2 only.
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2016 (2) TMI 1296
As per Ranjan Gogoi, J.,
Interpretation of statute - "public servant" as contained in Section 2(c) of the Prevention of Corruption Act, 1988 - meaning of the expression "office" appearing therein as well as "public duty" which is defined by Section 2(b) of PC Act - HELD THAT:- There can be no dispute that before enactment of the PC Act, Section 46A of the BR Act had the effect of treating the concerned employees/office bearers of a Banking Company as public servants for the purposes of Chapter IX of the Indian Penal Code by virtue of the deeming provision contained therein. The enactment of the PC Act with the clear intent to widen the definition of 'public servant' cannot be allowed to have the opposite effect by expressing judicial helplessness to rectify or fill up what is a clear omission in Section 46A of the BR Act. The omission to continue to extend the deeming provisions in Section 46A of the BR Act to the offences Under Sections 7 to 12 of the PC Act must be understood to be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of "public servant" by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court.
It is thus concluded that thhe accused Respondents are public servants for the purpose of the PC Act by virtue of the provisions of Section 46A of the Banking Regulation Act, 1949 and the prosecutions launched against the accused Respondents are maintainable in law - petition dismissed.
As per Prafulla C. Pant, J.,
Whether the Chairman, Directors and Officers of Global Trust Bank Ltd. (a private bank before its amalgamation with the Oriental Bank of Commerce), can be said to be public servants for the purposes of their prosecution in respect of offences punishable under Prevention of Corruption Act, 1988 or not? - HELD THAT:- Section 46A was inserted in Banking Regulation Act, 1949 by Act No. 95/56 with effect from 14.01.1957. The expression "every chairman who is appointed on a whole time basis, managing director, director, auditor" was substituted by Act No. 20/94 with effect from 31.01.1994 in place of "every chairman, director, auditor". As such managing director of a banking company is also deemed to be a public servant. In the present case transactions in question relate to the period subsequent to 31.01.1994.
In Federal Bank Ltd. v. Sagar Thomas and Ors. [2003 (9) TMI 707 - SUPREME COURT] this Court has held that a private company carrying banking business as a scheduled bank cannot be termed as a company carrying any statutory or public duty. However, in said case the Court was examining as to whether writ can be issued Under Article 226 of the Constitution of India against a scheduled bank or not. There was no issue before the Court relating to deeming fiction contained in Section 46A of Banking Regulation Act, 1949 in respect of a chairman/managing director or director of a banking company against whom a crime relating to anti-corruption was registered.
It is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from definition of 'public servant' - For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of Indian Penal Code have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.
A law which is not shown ultra-vires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable Under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 Indian Penal Code, as such offence Under Section 409 Indian Penal Code may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.
The courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988 - Application disposed off.
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2016 (2) TMI 1295
TP Adjustment - assessee had applied Resale Price Method (“RPM”) to submit that the transaction was at ALP - whether it should be RPM or TNMM for determination of the ALP? - HELD THAT:- After taking note of the Tribunal’s order in assessee’s own case for the A.Y. 2009-10 [2015 (9) TMI 1701 - ITAT HYDERABAD] and also taking note that the issue arising in this year is also similar, we deem it fit and proper to remit these issues to the file of the TPO for re-determination of the most appropriate method for determination of the ALP and we also direct the TPO to consider the comparables adopted by the assessee in addition to the companies selected by him for determination of the ALP if it is held that the RPM is the most appropriate method. Accordingly, ground Nos. 1 to 13 are treated as allowed for statistical purposes.
Disallowance u/s 36(1)(5) - contribution is to employees superannuation fund which has not been approved by the appropriate authority - HELD THAT:- As this is a legal issue, we deem it fit and proper to admit the additional evidence filed by the assessee and remit this issue also to the file of the A.O, to examine the issue relating to the contribution made to the LIC and consider the same in the light of the judgment of the Hon’ble Supreme Court in the case of Tex Tool Company Limited. [2009 (9) TMI 66 - SUPREME COURT] Accordingly, Ground of the assessee is allowed for statistical purposes.
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2016 (2) TMI 1294
Recovery of Service Tax - main grievance of the petitioner is that petitioner society should be given exemption from paying the service tax - HELD THAT:- When the petitioner society has not been included in the list of organizations, which are exempted form paying the service tax, this court cannot directly direct the respondents form exempt the petitioner society from paying the service tax - It is brought to the notice of this court that petitioner society has given a representation dated 15.10.2014 to the first respondent to exempt them from paying the service tax, however, the said representation has not yet been disposed of by the first respondent.
The first respondent is directed to consider the petitioner's representation dated 15.10.2014 and pass orders, on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order - petition disposed off.
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