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Showing 81 to 100 of 1437 Records
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2015 (3) TMI 1367
Classification of goods - Agricultural tree climbing apparatus-Unipole-manually operated - Agricultural tree climbing apparatus-Bipole-manually operated are to be construed as “agricultural implements manually operated” - whether falls under Serial No.1 of 1st Schedule to the Act? - HELD THAT:- The expression “Agricultural implements” is not defined under the Act. As per New Webster’s Dictionary ‘implement’ means an instrument, tool or utensil; an article assisting in carrying on manual labors. As per Oxford Dictionary, ‘implements’ means tools, instruments. Hence, it can be construed that ‘Agricultural implements’ are apparatus or tools or instruments employed in agriculture.
In the modern technological era, these products are new inventions to suit the present day farming in view of the shortage of skilled agricultural labourers. The product (a) is a kind of commonly used agricultural implement, regarded in common parlance according to the sense of agriculturists, ordinary traders and merchants as agricultural implements - the product Agricultural tree climbing apparatus-Unipole is an agricultural implement falling under Serial No.1 of First Schedule to the Act exempted from tax under Section 5(1) of the Act.
Agricultural tree climbing apparatus-Bipole - HELD THAT:- The Authority for clarification has not applied its mind to examine the product according to common parlance or trade parlance. No reasons are assigned to classify the product under Section 4(1)(b)(iii) of the Act. Photographs of the product produced by the assessee before us also do not disclose the correct description of the product. A detailed examination of the product is required for classifying the commodity. No such exercise is done by the Authority for clarification before giving a finding - Matter remanded back to the ACAR to examine the product in the light of the observations made herein above and to pass a speaking order after providing an opportunity of hearing to the appellant.
Appeal allowed in part - part matter on remand.
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2015 (3) TMI 1366
Application u/s 12AA rejected - proof of charitable activity u/s 2(15) - HELD THAT:- It is admitted fact that the receipts of the assessee society are from government departments, sale of tender forms and facilitation charges. The assessee is, therefore, working for the Government of Punjab and as such may not be doing the commercial activity in order to violate the provisions of Section 2(15) of the Act. CIT, at the end of the impugned order noted that since the assessee could not furnish the explanation, therefore, application of the assessee was rejected. The assessee, however, submitted that complete details were filed, therefore there was no justification to reject the application for registration.
We are of the view the matter requires re-consideration at the level of the ld. CIT(Appeals). We, accordingly, set aside the impugned order and restore the matter and issue to the file of Ld. Commissioner of Income TaxII Chandigarh with direction to re-decide registration application in accordance with law - Decided in favour of assessee for statistical purposes.
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2015 (3) TMI 1365
Interim measure pending resolution of dispute in the pending arbitration proceedings - restraint on appellant herein from bringing or hiring any new machinery, from entering with any other individual or concern for mining, lifting of the iron ore, red oxide or any other mines from the schedule property pending adjudication of the dispute - Section 11(6) of the Arbitration and Conciliation Act.
Whether an injunction in the manner as granted by the Court below is justified or whether the respondent herein can be compensated in terms of money by way of damages andtherefore is the injunction liable to be vacated?
HELD THAT:- Keeping in view Clause 6 contained in the agreement between the parties herein, the attempt made by the appellant to shutout the respondent even before the procedure as indicated in Clause 7 and 8 of the agreement for termination was followed would certainly entitle the respondent for grant of interim measure to protect their right pending the arbitration proceedings. The terms of the agreement and in that regard, the sequence that was followed would indicate that the respondent has made out not only a prima facie case, but the balance of convenience is also in their favour. Though the appellant has contended that the mining lease is sought to be cancelled if the rectification is not made, rectification if any can happen if the respondent is instructed by the appellant to carry out such rectification work. Therefore, in that circumstance, if the appellant is permitted to prevent the respondent from working and as an alternative, the appellant secure any other party to carry out the work, it will cause irreparable injury to the respondent.
A perusal of the order passed by the Court below which is impugned herein would indicate that the Court below in fact has made a detailed consideration of all aspects of the matter relating to grant of interim measure pending consideration of the dispute by the Arbitrator and the decision relied upon by the Court below to arrive at such conclusion is also appropriate - Hence, the order impugned does not call for interference.
Appeal dismissed.
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2015 (3) TMI 1364
Addition by estimating the raw material consumption @ 53% as against 55.22% as per books of account and records - HELD THAT:- As for the AO’s observation that some of the expenditure is supported by self-made vouchers, the mere fact that some expenditure is supported with self-made vouchers can never be reason enough which is sustainable in the eyes of law to reject the books of account as a whole. In case the A.O. was not satisfied about the authenticity of the support for this expenditure, nothing prevented him from exploring the possibilities of disallowance with respect to that expenditure. The course of action he adopted i.e. in rejecting the books of account though only to the extent of consumption of material cannot be given any judicial approval. It is also to be noted that consumption of raw material in year to year even under ideal circumstances can never be the same because there are many variables governing the consumption of raw material. The A.O. was thus clearly in error in resorting to the impugned disallowance.
CIT(A) has also not dealt with any of these aspects but has proceeded with his seemingly erudite discussion on the legal position though without properly establishing the fundamental facts. In view of these discussions and bearing in mind the entirety of the case, we are of the considered view that the authorities below was in error so far as their stand on disallowance of ₹ 33,01,961/- on raw material consumption is concerned. We, therefore, direct the Assessing Officer to delete the impugned disallowance.
Addition of bad debs in respect of NTPC, Rihandnagar - HELD THAT:- The impugned disallowance is devoid of any legally sustainable merit. There is no dispute that this debt was so written off and yet the disallowed is made only because a certificate from the debtor is not produced. The conditions laid down for allowance and bad debt are clearly satisfied in the case and the disallowance, therefore, deserves to be deleted. We direct the A.O. to do so. Ground no.2 is thus allowed.
Disallowance on adhoc basis of various administrative expenses - HELD THAT:- We find that the disallowance is made purely on the basis of surmises and conjectures and without pointing out any specific defects in the vouchers in support of these expenses. We are unable to see any legally sustainable merits in this kind of approach based on sweeping generalisation for making disallowance. We direct the A.O. to delete the same. Ground no.3 is thus allowed.
Disallowance being 5% of the total wages paid as against disallowance being 10% of the total wages paid - HELD THAT:- Disallowance is made purely on the basis of surmises and conjectures and without pointing out any specific defects in the vouchers in support of these expenses. We are unable to see any legally sustainable merits in this kind of approach based on sweeping generalisation for making disallowance. We direct the A.O. to delete the same. Ground no.4 is thus allowed.
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2015 (3) TMI 1363
Refund of amount seized u/s 226(3) - Administrator of respondent No.4-PUDA was also appointed as the competent authority to recover the regularization dues in respect of the unauthorized colonies on behalf of the State of Punjab - Respondent No.1 contends that it never sought to receive amounts due to the petitioner-State of Punjab towards satisfaction of the fourth respondent’s tax dues - HELD THAT:- The petition is disposed of by setting-aside the order passed by respondent No.1 in so far as the same relates to the dues of the petitioner kept in the escrow or other accounts opened by the Administrator of respondent No.4 but for and on behalf of the petitioner- State of Punjab. The impugned order passed by respondent No.1 will not operate in respect of any other accounts maintained in any name which are for the benefit of the petitioner-State of Punjab. Further, the order passed by respondent No.1 shall also not operate in respect of any accounts, fixed deposits or other investments made out of the accounts which belonged to the petitioner-State of Punjab. The order shall also not operate in respect of any accretion to the amounts.
The amounts shall be refunded by respondent No.1 within 12 weeks from the receipt of a communication by the petitioner specifying the details of the accounts kept by respondent No.4 on behalf of the petitioner and in the name of the petitioner itself.
We would not express any opinion regarding the question of interest including as to whether or not the interest is payable or not to the petitioner and if payable as to which of the respondents is liable to pay the same. The petitioner is given liberty to adopt appropriate proceedings for interest. Mere furnishing of PAN Number of respondent No.4 would not be determinative as to whether the amounts belonged to the petitioner or respondent No.4.
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2015 (3) TMI 1361
Partition and separate possession of suit property - time limitation - HELD THAT:- An 'ostensible owner' would be a person in whose favour the title deed stands. The real owner may be another. An example would be a benami transaction. If a dispute arises in such cases, the presumption would be that the ostensible owner is the owner. The real owner would have to prove otherwise. If the property is transferred by the ostensible owner with the implied consent or to the knowledge of the real owner, then the real owner would be precluded from questioning the transfer.
But on the facts of this case, the purchasers of the dispute property were Dhanram Modaliar and Venugopal Modaliar. It was the claim of Defendant No. 7 that they were ostensible owners. And the real owner was M/s. Standard Tile and Clay Works Limited. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. Hence, the application of Section 41 of the TP Act does not arise.
Time Limitation - HELD THAT:- There is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence - the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable.
Appeal allowed.
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2015 (3) TMI 1360
Calculation of deduction u/s 36(1)(viia) - as per AR set off of bad debt could be done only against provisions and not vice-versa - HELD THAT:- Similar issue was considered in ING VYSYA BANK LTD. [2014 (9) TMI 44 - ITAT BANGALORE] - All the arguments now raised by the learned DR including the effect of explanation2 to section 36(1)(vii) by Finance Act 2013, were considered in the above order. Accordingly, in the case of assessee also we set aside the orders of the authorities below and direct the AO to examine the claim of the assessee in the light of the discussion of the Tribunal in the case of M/s ING Vysa Bank Ltd (Supra). Ground of the assessee is therefore allowed for statistical purposes.
Disallowance u/s 14A - sufficiency of own funds - HELD THAT:- It is not disputed that assessee had interest free funds of ₹ 21,280.59 Crores with it. Against this, investments that could give rise to tax free income was ₹ 1444.02 Crores. This has not been disputed. Assessee had itself made a disallowance of ₹ 52,88,281.90 being 5% of the exempt income for covering the over head expenditure in relation to earning of the exempt income. In assessee’s own case for assessment year 2010-11 a similar issue had come up before this Tribunal wherein as held there can be no dispute that the interest-free funds far exceeded the investment in tax free securities. Therefore, one has to come to a conclusion that investments in tax-free securities was made out of own funds and therefore, no disallowance in terms of Rule 8D(2)(i) or (ii) of the Rules can be made on account of interest expenditure. AO has completely ignored the submissions made by the assessee in this regard and has blindly applied Rule 8D(2)(iii) of the rules and made disallowance u/s.14A
Deduction u/s 36(1)(viii) being income earned by it on long term finance - HELD THAT:- Whether assessee had indeed made a further creation of special reserve in the succeeding year and also whether such reserves were created before finalization of the grant of deduction u/s 36(1)(viii) had not been verified by any of the authorities below. We therefore, set aside the orders of the authorities below and remand the issue to the file of the AO for fresh consideration in accordance with law.
TDS u/s 194H - payments which were made to National Financial Switch and Cash tree (NFS in short) consortium - Non deduction of tds - Disallowance u/s 40a(ia) - HELD THAT:- We are of the opinion, that the payments made by the assessee to M/s NFS could not be considered as commission or brokerage, in any sense all these terms. Assessee was therefore,not bound to deduct tax on such payments u/s 194H of the Act. Disallowance u/s 40a(ia) of the Act is not warranted. Such disallowance stands deleted.
Depreciation on investment portfolio by treating the investment as stock in trade - HELD THAT:- As decided in assessee's own case for assessment year 2010-11 Preparation of the balancesheet in accordance with the statutory provision would not disentitle the assessee in submitting the Income-tax return on the real taxable income in accordance with the method of accounting adopted by the assessee consistently and regularly. That cannot be discarded by the departmental authorities on the ground that the assessee was maintaining the balance-sheet in the statutory form on the basis of the cost of the investments. No question of following two different methods for valuing its stock-in-trade (investments) because the bank was required to prepare the balance-sheet in the prescribed form and it had no option to change it. For the purpose of income tax as stated earlier, what is to be taxed is the real income which is to be deduced on the basis of the accounting system regularly maintained by the assessee and that was done by the assessee in the present case - method adopted by the banks valuing stock-in-trade (investments) at cost in balance sheet in accordance with the Banking Regulation Act and valuing the same at cost or market value, whichever was lower for income-tax purposes. - Decided in favour of assessee.
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2015 (3) TMI 1359
Shortfall in premium for issuance of equity shares by the assessee to its holding company - deemed loan - computation of fair market value of shares issued by the Indian subsidiary to its holding company and shortfall in premium - HELD THAT:- In the case of M/s Shell India Markets Pvt. Ltd. [2014 (11) TMI 897 - BOMBAY HIGH COURT] has again decided the identical issue by following the Judgment in case of Vodafone India Services Pvt. Ltd. [2014 (11) TMI 897 - BOMBAY HIGH COURT] . Accordingly, following the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd. (supra), we delete the addition made by the authorities below on account of shortfall in premium for issuance of equity shares by the assessee to its holding company has been treated as deemed loan.
Credit of TDS - assessee has already filed a petition u/s 154 for grant of credit for tax deducted at source - HELD THAT:- Since the assessee has already filed a petition u/s 154 for grant of credit for tax deducted at source accordingly, we direct AO to verify the claim of assessed and then pass the appropriate order.
Revision u/s 263 - HELD THAT:- The assessee objected to the proposed enhancement u/s 263 by the Commissioner. Commissioner passed the impugned order holding that the AO failed to make the adjustment towards the benefit of loan advanced by the assessee to its holding company as income in the hands of the assessee and the order passed by the AO is erroneous and prejudicial to the interest of revenue. Commissioner set aside the assessment order and directed the AO to frame the assessment as per the the directions given in the impugned revision order.
AR as well as Ld. DR and considered the relevant material on record. The issue is directly covered by the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd [2014 (10) TMI 278 - BOMBAY HIGH COURT] the relevant finding of the Hon’ble High Court has been produced in the foregoing paras of this order. Accordingly, following the Judgment of Hon’ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd. (Supra), we set aside/quash the impugned revision order passed u/s 263 of the Act.
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2015 (3) TMI 1358
Maintainability of appeal u/s 18(1) of SARFAESI Act - non-compliance with the pre-deposit - waiver of statutory requirement - HELD THAT:- When the debtor or guarantor as the case may be, if he prefers the statutory appeal under Section 18 of the SARFAESI Act, he cannot be allowed to shirk his statutory liability as he must be ready and willing to obey and comply with the order as to pre-deposit of the amount as a pre-condition to maintain the appeal - We find in the impugned order that the first respondent/Appellate Tribunal has misguided itself on clear mandate of the law while it wrongly granted complete waiver of the pre-deposit amount to the appellants/respondent, which has not been contemplated under law.
In the interpretation of statutes, the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have obedient effect. The legislature is deemed not to waste its words or to say anything in vain. By an interpretative process, the Court cannot reach a conclusion which makes it impossible for faster remedies provided for under the law to be worked out. The purposive interpretation requires that any interpretation which is unjust or absurd must be eschewed and the Court must adopt principles of reasonable and harmonious construction in consonance with the avowed statutory purpose. The SARFAESI Act was enacted to curb the menace of growing nonperforming assets (NPAs). It affects the banks and financial institutions which is ultimately against the public interest.
Normally there should be a presumption in favour of validity of legislative provision more so in regard to the mandatory provision of law aiming to facilitate the economic and financial matters and a few instances here and there of any harsh results would not be a valid consideration to invalidate or disregard the mandate of law. Hence, the impugned order passed by the first respondent/Appellate Tribunal is absolutely bereft of any statutory power granted to it and therefore, the same needs to be set aside.
Impugned order set aside - Parties shall appear on 15.4.2015 before the Debt Recovery Appellate Tribunal for redressal of their grievance as to non-deposit of the portion of the debt as a pre-condition to lodge a statutory appeal under Section 18(1) of the SARFAESI Act and to invite appropriate reasoned order as to pre-deposit of sum in accordance with law as a mandatory pre-condition to maintain the appeal.
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2015 (3) TMI 1357
Deduction u/s 80IB(10) - HELD THAT:- All appeals are admitted on the following questions:-
“Whether the ITAT is correct in facts and circumstances of the case and in law in allowing the deduction u/s 80IB(10) of the Act, to the assessee, without appreciating the fact that the assessee has entered into separate agreements with individual buyers for construction work and thus carried out construction of residential houses as a contractor, rendering it ineligible for deduction u/s 80IB(10) of the Act?”
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2015 (3) TMI 1356
Auction of Land - relief sought for in this writ petition is to declare the action of the 1st respondent in auctioning the land as arbitrary and illegal - HELD THAT:- It is evident that the apprehension of the petitioner, that the property sold to him in auction is being put to sale, is misplaced.
Petition closed.
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2015 (3) TMI 1355
Determination of Annual value - income from house property - Undisclosed rental income in view of the provisions of section 23(1) - HELD THAT:- CIT (Appeals) correctly decided the issue. He has clearly met with the contention that different view has not been taken in the case of Shri Manoj Singla. CIT (Appeals) has reproduced the contents of the appellate order in the case of Manoj Singla in para 7 and reading of the same clearly shows that in the case of Manoj Singla the learned CIT (Appeals) observed that B-7 Preet Vihar property is commercial property and is not covered by the provisions of section 23(4) of the Act. As far as Bombay flat is concerned, since the assessee has shown rental income in the earlier years, therefore, the income has to be charged. As observed by the learned CIT (Appeals), therefore, it becomes clear that even in the case of Manoj Singla it was never held that if the property was never let out, then no income can be charged.
Once the expression "might" is used in section 23(1)(a), it becomes clear that what is required to be charged is the notional income because the basis of the charge of income is annual value. See BIMAN BEHARI SHAW SHEBAIT. [1967 (7) TMI 29 - CALCUTTA HIGH COURT]
It is not necessary that the property has been let out for computing the annual value because what is required under section 23(1)(a) of the Act is a sum for which property might be let out. In case of let out properties section 23(1)(b) of the Act is applicable which talks of annual rent received or receivable.
Where the property remains vacant for the whole year, in that case, nil value is to be computed or notional value of rent is to be computed? - As pointed out by the learned CIT (Appeals), section 23(1(c) of the Act clearly stipulate the situation where the property has been let out that being if some property is rented out and the tenants leaves, then section 23(1)(c) of the Act would get activated. But ff the property has never been let out, then the provisions cannot be invoked because section 23(1)(c) of the Act is clearly applicable where the property was let out. Therefore, in our opinion, the learned CIT (Appeals) has rightly interpreted the provisions of section 23(1)(c) of the Act. Clearly, the property for which notional income has been computed by the Assessing Officer was never let out by the assessee, therefore, section 23(1)(c) of would not be applicable.
Dispute seems to be the value on which the notional value is to be computed whether this should be municipal ratable value or the standard rent as per the Local Rent Control Act, whichever, is higher. Therefore, the facts were quite distinguishable and in our opinion this decision is not applicable.
We find nothing wrong with the order of the learned CIT (Appeals) and confirm the same
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2015 (3) TMI 1354
Period of limitation – issuance of SCN or Delivery of SCN - alleged that SCN given to the petitioner beyond the period of six months – whether mere dispatch of a notice under Section 124(a) of the said Act would imply that the notice was “given” within the meaning of Section 124(a) and Section 110(2) of the said Act - HELD THAT:- The respondents in both the appeals shall be entitled to refund of 50% of the seized amount and the watches seized by the appellant within four weeks hence subject to an undertaking filed before the Registry of this Court within ten days that if the appellant succeed in appeal, they shall make good the dues along with interest.
List the matter after six weeks.
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2015 (3) TMI 1353
Selection and recruitment to the post of Physical Training Instructor Grade-III (PTI Gr. III) - Requisite qualification - whether the Division Bench of Rajasthan High Court is correct in reversing the judgment of the learned Single Judge and permitting the qualification of B.P. Ed. to be treated as equivalent to qualification of C.P. Ed. for the purpose of selection and recruitment to the post of Physical Training Instructor Grade-III (PTI Gr. III)?
HELD THAT:- The issue noticed at the outset must be decided on the basis of settled law noticed by learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per rules existing when the recruitment process began.
In the present case, the Division Bench has gone to great lengths in examining the issue whether B.P. Ed. and D.P. Ed. qualifications are equivalent or superior to C.P. Ed. qualification but such exercise cannot help the cause of the Respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the rules which were suitably amended only later in 2011 - In such a situation, factual justifications cannot change the legal position that Respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of C.P. Ed. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement.
The candidates who were aware of the advertisement and did not have the qualification of C.P. Ed. also had two options, either to apply only for PTI Gr. II if they had the necessary qualification for that post or to challenge the advertisement that it omitted to mention equivalent or higher qualification along with qualification of C.P. Ed. for the post of PTI Gr. III - Having not challenged the advertisement and having applied for the other post, they could not have subsequently claimed or be granted eligibility on the basis of equivalence clarified or declared subsequently by the State Government.
The order of the learned Single Judge is restored - appeal allowed.
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2015 (3) TMI 1352
Addition u/s 68 - genuineness, credit worthiness and identity of creditor - HELD THAT:- The assessee's version of truth was placed before A.O. also, but A.O. did not find any evidence contrary to above facts. CIT(A) further observed that the assessee’s husband was working in Meghalaya House and he used to come across the friend Mr. W. Sutong in the Meghalaya House.
When the assessee and her husband purchased a house, they had discussed the matter with the Mr. W. Sutong and Mr. W. Sutong agreed to pay them ₹ 16,18,000/- by cash in their bank account but later on they realized that they being in the government service, it is not proper to get loan from stranger. There will be problems for them and they returned the money immediately to the appellant's bank account by RTGS. The above submission of refund of money is available on record.
Therefore, ₹ 15,80,000/- was returned by assessee's husband from their joint account to Mr. W. Sutong. Hence, in our considered opinion, the CIT(A) has rightly gave a relief to the assessee of ₹ 15.80 Lakh. In the background of the aforesaid detailed discussions, we find that Ld. CIT(A) has rightly deleted the addition of ₹ 15,80,000/- and sustained the balance addition of ₹ 38,000/-. - Decided against revenue
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2015 (3) TMI 1351
Deduction u/s 80P - returns of income were not filed by the assessee either u/s 139(1) or u/s 139(4) or within the time limit provided u/s 142(1) - HELD THAT:- This Tribunal examined the issue elaborately in the case of Kadachira Service Co-operative Bank [2013 (2) TMI 208 - ITAT COCHIN] , M/s Kunnamangalam Co-operative Bank [2014 (10) TMI 350 - ITAT COCHIN] and M/s Pinarayi Service Cooperative Bank Ltd [2014 (7) TMI 1176 - ITAT COCHIN] and found that if the assessee failed to file the return of income within the prescribed time and claim deduction u/s 80P, then the assessee is not entitled for deduction u/s 80P.
Disallowance u/s 40(a)(ia) - interest was paid to non members without deducting tax - HELD THAT:- Assessee is carrying on banking activity. Therefore, deduction of tax at source either at the time of credit or payment of interest is a mandatory requirement. Hence, this Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the orders of the CIT(A) on this issue are also confirmed. Assessee's appeal dismissed.
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2015 (3) TMI 1350
TP adjustment - arm‘s length pricing of international transactions - Whether the additions suggested by the TPO on account of Advertising/Marketing and Promotion Expenses was beyond jurisdiction and bad in law as no specific reference was made by the Assessing Officer, having regard to retrospective amendment to Section 92CA of the Income Tax Act, 1961 by Finance Act, 2012? - Transfer pricing adjustment made on account of payment of royalty to an associated enterprise - HELD THAT:- For detailed order see Sony Ericsson Mobile Communications India Pvt. Ltd. (Now known as Sony India Limited) Vs. Commissioner of Income Tax-II [2015 (3) TMI 580 - DELHI HIGH COURT] [
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2015 (3) TMI 1349
Complaints to Magistrate - Commencement of Proceedings before Magistrate - Sufficient ground of proceeding - Section 204(1) of Code of Criminal Procedure - Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so - How does a Magistrate, while taking cognizance of an offence on complaint, indicate his satisfaction regarding the ground for proceeding against the accused?
HELD THAT:- There is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the Appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 Code of Criminal Procedure, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded Under Section 200 of Code of Criminal Procedure so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence.
Question is not about veracity of the allegations; but whether the Respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.
The matter is remitted to the Magistrate for fresh consideration - Appeal allowed by way of remand.
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2015 (3) TMI 1348
Recovery proceedings - security furnished by petitioner as contemplated by Section 33(5) of Haryana VAT Act - petitioner states that it had offered the security but the same has not even been considered by the respondents - HELD THAT:- The writ petition is disposed of by directing the concerned officer of the respondents to decide whether the security offered by the petitioner is adequate or not.
Till such decision is taken and for a period of one week thereafter, the recovery shall not be made pursuant to the order dated 22.12.2014.
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2015 (3) TMI 1347
Addition based on seized papers - taxation from undisclosed income of seized document being fastened on assessee - HELD THAT:- Seized document found from the possession of Sh Kinda, belong to them and if it is claimed that said document belong to assessee, then in that event the onus of proof vest with the AO.
CIT(A) has rightly found that this onus has not been discharged by the AO, in so far as there is no corroborative evidence brought on record to substantiate that document or transactions mentioned therein belong to assessee except conjectures and presumptions and what to talk of any liability for taxation from undisclosed income of seized document being fastened on assessee.
CIT(A) as per the trite law that "there must be something more than suspicion to support an assessment, the assessment based on pure suspicion is bound to be quashed". CIT(A) has rightly concluded that the attempt of the AO to connect seized paper with assessee has failed and finding given in the assessment order is erroneous on facts and is perverse and whimsical and stands vitiated and any addition based thereon deserves to be deleted.
CIT(A) has rightly deleted the addition. No reason to interfere with the well reasoned order of the CIT(A), accordingly, we uphold the same and decide the issue against the Revenue by rejecting the ground of appeal filed by the Revenue. - Appeals filed by the Revenue stands dismissed.
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9911796707
