|
Advanced Search Options
Case Laws
Showing 81 to 100 of 730 Records
-
2009 (5) TMI 949
Issues involved: Challenge to orders passed by Sales Tax Tribunal Haryana regarding inclusion of sales to registered dealers in notional tax liability calculation.
Judgment Summary:
The High Court of Punjab & Haryana considered the challenge in multiple petitions regarding the inclusion of sales made to registered dealers in the calculation of notional sales tax liability. The Court referred to a recent case involving a similar issue and concluded that sales to registered dealers should not be included in the calculation of notional tax liability.
In the case of M/s Jai Durga Cotton Mills, the Court had already determined that sales to registered dealers should not be considered for notional tax liability calculation. Citing the judgment of the Supreme Court in the case of State of Haryana v. M/s Liberty Enterprises, the Court held that the matter is covered in favor of the dealer-petitioner and against the revenue.
The Court set aside the orders passed by the Tribunal and directed the respondents to deduct the sales made to registered dealers while calculating the taxable turnover. These sales should also not be included in the notional tax liability calculation. The Court found that the principles established in previous judgments are fully applicable to the present petitions, leading to the success of the petitions.
Based on the above reasoning and precedent, the Court disposed of the petitions in favor of the petitioners, setting aside the Tribunal's orders and directing the exclusion of sales to registered dealers from the calculation of notional tax liability.
-
2009 (5) TMI 948
Issues Involved:
1. Validity of the revised returns of income.
2. Basis for levy of penalty u/s. 271(1)(c) of the Income-tax Act.
3. Merits of the penalty for alleged concealment of income or furnishing inaccurate particulars.
Summary:
1. Validity of the revised returns of income:
The assessee filed revised returns on 09.08.2005, claiming that the income from the sale of shares should be treated as "business income" and not "capital gains," invoking the Double Taxation Avoidance Agreement (DTAA) between India and the USA. The assessing officer issued a notice u/s. 139(9) asking the assessee to rectify defects in the revised returns. The assessee responded, explaining that no books of account were maintained specifically for Indian investments. The assessing officer treated the revised returns as invalid, stating that the assessee failed to rectify the defects within the prescribed time limits.
2. Basis for levy of penalty u/s. 271(1)(c) of the Income-tax Act:
The assessing officer completed the assessment u/s. 143(3) based on the original returns and initiated penalty proceedings u/s. 271(1)(c) for alleged concealment of income or furnishing inaccurate particulars. The assessee contended that since the revised returns were treated as invalid, they could not form the basis for levy of penalty. The first appellate authority sustained the levy of penalty, leading the assessee to appeal before the Tribunal.
3. Merits of the penalty for alleged concealment of income or furnishing inaccurate particulars:
The Tribunal noted that the entire penalty order was based on the revised returns, which were treated as invalid by the assessing officer. Therefore, the penalty had no legal basis. Additionally, the Tribunal found that the assessee had provided a bona fide explanation for filing the revised returns, based on judicial decisions in similar cases involving the assessee's sister concerns. The Tribunal concluded that there was no concealment of income or furnishing of inaccurate particulars, making the levy of penalty bad in law.
Conclusion:
The Tribunal allowed both appeals of the assessee, canceling the penalty orders and holding that the revised returns, treated as invalid, could not be the basis for penalty u/s. 271(1)(c). The Tribunal also found that the assessee had provided a bona fide explanation, and the issues were debatable, further invalidating the penalty.
-
2009 (5) TMI 947
Issues involved: Appeal related to assessment year 2003-04, involving deduction u/s.10A and u/s.80HHE.
Deduction u/s.10A: The controversy was whether foreign exchange expenditure should be deducted from both export turnover and total turnover while computing the deduction u/s.10A. The department argued against deducting it from total turnover, citing lack of definition. Referring to a similar case u/s.10B, the Tribunal upheld that foreign currency expenditure should be deducted from total turnover to maintain parity with export turnover. Relying on this, the decision of the Commissioner of Income-tax (Appeals) was upheld, and the grounds were dismissed.
Deduction u/s.80HHE: The issue was whether income not exempt under u/s.10A could be claimed as a deduction u/s.80HHE. The department held that once u/s.10A claim is exhausted, no further deduction u/s.80HHE can be claimed. Citing a previous Tribunal order, it was held that u/s.10A and u/s.80HHE computations are independent, and once u/s.10A deduction is computed, it would prevent other deductions like u/s.80HHE. Following this precedent, the decision of the Commissioner of Income-tax (Appeals) was reversed, and the department's grounds were allowed.
Conclusion: The appeal was partly allowed based on the decisions regarding deductions u/s.10A and u/s.80HHE.
-
2009 (5) TMI 946
Issues involved:
The issues involved in this case are:
1. Determination of holding period for shares to qualify as long-term capital asset.
2. Interpretation of provisions related to exemption under section 10(38) for capital gains arising from sale of shares.
Issue 1: Determination of holding period for shares:
The Assessing Officer (AO) held that the shares acquired the character of capital assets only from 1st April, 2004, as they were previously held as stock-in-trade. The AO concluded that the holding period was less than 12 months, disallowing exemption for long-term capital gain. The Commissioner of Income Tax (Appeals) (CIT(A)) upheld this decision. The assessee argued that the holding period should be calculated from the date of allotment of shares, emphasizing that the nature of the asset was irrelevant. The Tribunal referred to relevant legal provisions and previous judgments to support the assessee's claim. However, considering the specific definitions and provisions in the Income Tax Act, the Tribunal confirmed the CIT(A)'s decision, dismissing the appeal.
Issue 2: Interpretation of exemption under section 10(38):
The assessee contended that since the shares were treated as capital assets at the time of transfer, exemption on long-term capital gain should have been allowed. The assessee relied on legal principles emphasizing the importance of interpreting taxation laws based on the plain language used in the statutes. The Departmental Representative argued that the nature of the asset must be considered in determining the holding period. The Tribunal analyzed the relevant sections of the Income Tax Act, highlighting the definitions of capital assets and short-term capital assets. Based on the specific provisions and legal principles, the Tribunal concluded that the shares did not qualify as long-term capital assets due to their previous classification as stock-in-trade, thereby upholding the decision of the CIT(A) to disallow the exemption under section 10(38).
Conclusion:
In conclusion, the Appellate Tribunal upheld the decisions of the lower authorities, denying the assessee's claim for exemption on long-term capital gains. The Tribunal emphasized the importance of considering the specific definitions and provisions in the Income Tax Act while interpreting taxation laws. The case serves as a reminder that the nature and classification of assets play a crucial role in determining eligibility for exemptions and benefits under the tax laws.
-
2009 (5) TMI 945
Issues Involved:
1. Disallowance of interest expenditure u/s 36(1)(iii) of the Income Tax Act, 1961.
2. Material evidence for interest-free loans to subsidiaries and associate companies.
Summary:
Issue 1: Disallowance of Interest Expenditure u/s 36(1)(iii)
The Tribunal upheld the disallowance of Rs. 10,24,59,637/- as interest expenditure incurred by the appellant on capital borrowed for business purposes. The appellant argued that the borrowed funds were not used for interest-free loans to subsidiaries and associate companies. The AO initially allowed the deduction, but the Commissioner initiated proceedings u/s 263, questioning the AO's investigation into the use of borrowed funds. The Commissioner set aside the AO's assessment, leading to the disallowance of the interest expenditure. The appellant's subsequent appeals to the CIT (A) and the Tribunal were unsuccessful.
Issue 2: Material Evidence for Interest-Free Loans
The appellant contended that there was no evidence to support the Tribunal's finding that borrowed funds were used for interest-free loans to subsidiaries and associates. The appellant provided detailed accounts and evidence showing that the advances were made from internal accruals or sale proceeds of investments, not borrowed funds. The Tribunal, however, did not consider these materials and dismissed the appellant's Miscellaneous Application, stating that allowing it would amount to reviewing its order.
Tribunal's Failure to Consider Evidence
The appellant highlighted that the Tribunal ignored relevant facts and evidence, including judicial decisions and financial documents, which demonstrated that no part of the borrowed funds was used for interest-free advances. The Tribunal's order was deemed perverse and unsustainable in law for failing to apply its mind and pass a reasoned order.
Remand for Fresh Hearing
Both parties agreed that the matter should be remanded back to the Tribunal for a fresh hearing. The Court set aside the Tribunal's order and directed it to reconsider the case, taking into account all the materials and legal arguments presented.
Conclusion
The appeal was disposed of with directions for the Tribunal to rehear the matter on the specified points, ensuring a thorough consideration of all relevant evidence and legal contentions.
-
2009 (5) TMI 944
The High Court of Karnataka modified its order dated 6.4.2009, appointing Mr. Pradeep Totla or Mr. Shashikant G. Mandhana as Chairmen of the meetings on 30.5.2009 instead of Mr. Nitin Mandhana. The application seeking this modification was allowed, and the applicant was permitted to publish the change in the newspaper. (2009 (5) TMI 944 - KARNATAKA HIGH COURT)
-
2009 (5) TMI 943
Issues involved:
The issue involves the inclusion of demurrage charges in the assessable value for the purpose of calculating customs duty.
Summary:
The case involved M/s. Grasim Industries Ltd., New Delhi importing 18 consignments of coal between 21.6.2001 to 5.2.2002, with bills of entry provisionally assessed. The Tribunal heard the appeal by the department against the order excluding demurrage charges from the assessable value for customs duty calculation. The Revenue argued that demurrage charges should be treated as part of transportation costs.
In previous cases, the Tribunal held that demurrage charges were not includable during the relevant period until a final decision was taken by the Board on 26.09.2006. Circulars issued by the Board clarified the treatment of demurrage charges, with a distinction made between demurrage and dispatch monies. The Tribunal emphasized that the circulars indicated that assessments prior to 02.03.2001 should exclude demurrage charges, with instructions for subsequent assessments to be issued later.
The Tribunal, in considering the legal position, noted conflicting views on the inclusion of demurrage charges in the assessable value. While the Revenue argued for inclusion based on recent amendments, the Tribunal referenced the Supreme Court's decision affirming the Tribunal's stance on demurrage charges. The Tribunal directed the matter to be placed before a Larger Bench to decide whether demurrage charges can be excluded from the assessable value for imports post-2.3.2001, despite the Board's decision in 2006.
In a separate judgment, Judicial Member Archana Wadhwa expressed a difference of opinion with the decision to refer the matter to a Larger Bench, stating doubts about the correctness of the precedent decisions. She did not record a formal difference of opinion but supported the decision for further consideration by a Larger Bench.
-
2009 (5) TMI 942
Issues involved: Imposition of penalty under Section 11AC of the Central Excise Act, 1944.
The appeal was filed by the Revenue against the order-in-appeal No. RKR(172)33/07 dated 31.08.2007 passed by the Commissioner of Central Excise regarding the imposition of penalty under Section 11AC of the Central Excise Act, 1944. The case involved M/s. Medicore Labs Pvt. Ltd. manufacturing medicaments and food products without payment of duty, leading to a demand for Central Excise duty, penalty under Section 11AC, and interest. The Joint Commissioner confirmed the duty demand, imposed penalty under Section 11AC, and confirmed interest under Section 11AB. The assessee appealed to the Commissioner (Appeals) challenging the duty confirmation for the years 2002-03 & 2003-04 based on an amendment to Notfn. No. 8/2003-CE. The Commissioner (Appeals) upheld duty confirmation up to a certain amount and reduced the penalty to Rs. 50,000 based on the prospective application of the amendment.
The Revenue contended that once duty is re-determined under Section 11A of the Central Excise Act, 1944, there is no discretion to determine the penalty under Section 11AC. Citing a Supreme Court decision, it was argued that the authorities cannot levy less duty than what is legally leviable. The Revenue emphasized the mandatory nature of penalty under Section 11AC as per the legislative intent and the clear language of the statute introduced in the Union Budget of 1996-97.
The Member (Judicial) agreed with the Revenue's argument, citing the Supreme Court's decision in the case of Union of India & Ors. Vs. M/s. Dharmendra Textile Processors & ors., and CCE, Tirupati vs. Morarcho Pipes Ltd. The Member held that under Section 11AC of the Central Excise Act, 1944, an equivalent penalty is leviable as confirmed by the adjudicating authority and the Apex Court. Consequently, the appeal was allowed, and the Cross Objection filed by the respondent was disposed of accordingly.
-
2009 (5) TMI 941
Issues Involved:
1. Validity of the retrospective amendment to the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972.
2. Impact of the amendment on vested rights and chances of promotion.
3. Legality of creating separate seniority lists and rotational promotion.
Issue-wise Detailed Analysis:
1. Validity of the retrospective amendment:
The core issue revolved around the retrospective amendment dated 7.8.1995 to Rule 7 of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972, which introduced a quota system for promotions to the post of Assistant Registrar. The amendment was challenged for its retrospective application from 1.7.1993. The Supreme Court observed that the amendment was necessitated to correct an imbalance where Private Secretaries were monopolizing promotions. The Court found no fault with the retrospective application, stating that it was reasonable and necessary to address the imbalance and prevent further frustration among Superintendents and Court Masters. The retrospective application was deemed appropriate as it followed the last promotion made on 1.6.1993, ensuring no further imbalance.
2. Impact on vested rights and chances of promotion:
The respondents argued that the retrospective amendment adversely affected their vested rights for consideration for promotion, which they claimed was a fundamental right under Articles 14 and 16 of the Constitution. The Supreme Court clarified that the right to be considered for promotion is not a vested right but a chance, and a mere chance of promotion being affected by an amendment does not invalidate the action. The Court emphasized that no absolute vested or accrued rights were affected, as the amendment did not take away any already granted benefits like promotion, seniority, or substantive appointment. The Court found the High Court's reliance on the decision in Chairman, Railway Board & Ors. vs. C.R. Rangadhamaiah & Ors. to be misplaced, as the retrospective amendment did not deny any crystallized benefits.
3. Legality of creating separate seniority lists and rotational promotion:
The amendment introduced separate seniority lists for Private Secretaries, Superintendents, and Court Masters, and a rotational promotion system. The Supreme Court noted that this part of the amendment was not challenged before the High Court. The Court found the creation of separate seniority lists and rotational promotion reasonable and necessary to address the imbalance in promotions. The Court referred to the decision in S.B. Mathur vs. Chief Justice of Delhi, which upheld the validity of treating the three categories as equal status posts for promotion purposes. The Court rejected the argument that the High Court's earlier decision created a right to a combined seniority list, clarifying that the decision only validated the existing rule without creating any vested right.
Conclusion:
The Supreme Court concluded that the retrospective amendment was valid and necessary to address the imbalance in promotions among the three categories. The amendment did not violate any vested rights, as the right to be considered for promotion is not absolute. The creation of separate seniority lists and rotational promotion was upheld as reasonable and necessary. The judgment of the High Court was set aside, and the writ petitions challenging the retrospective amendment were dismissed.
-
2009 (5) TMI 940
The Bombay High Court ruled that a director cannot be held personally liable for the dues of a company without a specific statutory provision. The judgment in Sunil Parmeshwar Mittal case was followed, and the rule was made absolute in favor of the petitioner.
-
2009 (5) TMI 939
Issues involved: Determination of whether Cenvat Credit of service tax paid on outdoor catering services is covered under input service.
Summary:
Issue 1: Cenvat Credit on service tax paid on outdoor catering services
The case involved two appeals, one by the Revenue and the other by the assessee M/s. Cummins Generator Technologies India Ltd. The appellants were engaged in the manufacture of AC Alternator and availed Cenvat Credit facility of duty paid on inputs and capital goods. The dispute arose regarding the demand and recovery of Cenvat Credit and Education Cess, penalty imposition, and interest recovery under the Cenvat Credit Rules, 2004. The Commissioner (Appeals) confirmed the order passed by the adjudicating authority. The learned Counsel for the appellants argued that outdoor catering services should be considered input services based on relevant legal provisions and precedents. The issue was whether Cenvat Credit of service tax paid on outdoor catering services is covered under input service.
Decision:
After considering the arguments and records, the Tribunal found that there was no information regarding the number of workers in the factory and whether the cost of supply of food in the factory-canteen formed a part of the assessable value of the excisable goods during the material period. The appeal was allowed by way of remand to the adjudicating authority to examine these aspects and pass an appropriate order within 60 days of the receipt of the order. The appeal filed by the Revenue and Cross Objection by the appellants were also disposed of accordingly.
-
2009 (5) TMI 938
Issues involved: Challenge to order of Customs, Excise and Service Tax Appellate Tribunal u/s 25th April, 2007, predeposit of penalty amount, appeal process, bank guarantee for duty drawback.
Challenge to Tribunal Order: The writ petitioner challenged the order of the Customs, Excise and Service Tax Appellate Tribunal dated 25th April, 2007, which directed predeposit of penalty amount of Rs. 1,00,000 for the appeal process. The petitioner sought relief from the requirement of predeposit due to a bank guarantee of Rs. 6,45,000 already secured for duty drawback.
Decision: The High Court modified the Tribunal's order, directing the Commissioner of Appeals to hear the appeal without insisting on the predeposit of Rs. 1,00,000. The petitioner was instructed to renew the bank guarantee until the Commissioner's order is communicated. No costs were awarded, and parties were to act on a signed copy of the order.
Legal Analysis: The High Court considered the fact that Rs. 6,45,000 was secured with the department and decided in favor of the petitioner, allowing the appeal process to proceed without the additional predeposit. The Court emphasized the importance of renewing the bank guarantee until the Commissioner's decision is received, ensuring compliance with the modified order.
-
2009 (5) TMI 937
Issues Involved:
1. Reduction of expenses incurred in foreign currency from total turnover while computing deduction u/s 10A.
2. Reduction of telecommunication expenses from total turnover besides export turnover for parity while computing deduction u/s 10A.
3. Exclusion of expenses incurred in foreign currency for providing software development services outside India from 'export turnover'.
4. Consideration of exchange fluctuation loss for reduction from 'total turnover'.
Summary:
Issue 1: Reduction of expenses incurred in foreign currency from total turnover while computing deduction u/s 10A
The Revenue contended that the CIT(A) erred in directing the AO to reduce the expenses incurred in foreign currency for providing software development from the total turnover while computing the deduction u/s 10A. The assessee argued that the disputed amount should also be reduced from the total turnover for parity. The CIT(A) directed the AO to reduce the disputed amount from the total turnover, applying the ratios of decisions in Tata Elexsi Limited, I Gate Global Solutions Ltd., and Mphasis Ltd. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's ground.
Issue 2: Reduction of telecommunication expenses from total turnover besides export turnover for parity while computing deduction u/s 10A
The AO did not reduce the expenses from the total turnover, adopting the natural meaning of the total turnover. The CIT(A), following Tribunal decisions in similar cases, directed the AO to reduce the expenses from the total turnover. The Tribunal upheld the CIT(A)'s action, directing the AO to exclude the expenditure incurred in foreign currency from the total turnover.
Issue 3: Exclusion of expenses incurred in foreign currency for providing software development services outside India from 'export turnover'
The CIT(A) concluded that expenses incurred in foreign currency for providing software development services outside India could be excluded from the 'export turnover'. The assessee opposed this, citing the Tribunal's decision in MphasiS Limited. The Tribunal directed the AO not to exclude these expenses from the export turnover, following the decision in Infosys Technologies Ltd. vs. JCIT.
Issue 4: Consideration of exchange fluctuation loss for reduction from 'total turnover'
The CIT(A) upheld the AO's action, observing that the exchange fluctuation loss was incidental to the export business and could not be considered for reduction from the total turnover. The assessee's contention was cryptic, and no effective arguments were presented. The Tribunal, following the ITAT, Mumbai (Special Bench) decision in ACIT vs. Parkash L. Shah, directed the AO to allow deduction accordingly.
Conclusion:
The Revenue's appeal was dismissed, and the assessee's Cross Objection was partly allowed.
-
2009 (5) TMI 936
Issues involved: Appeal by revenue against CIT(A) order for A.Y. 2000-01, undisclosed income from share transactions, validity of addition u/s 148.
Summary:
The appeal was filed by the revenue against the CIT(A) order for the assessment year 2000-01. The case involved undisclosed income arising from share transactions and the validity of the addition made under section 148.
The assessing authority initiated proceedings under section 158BD based on a search and seizure operation at the premises of Shri Manoj Aggarwal. It was alleged that the assessee had transacted with Shri Manoj Aggarwal for converting black money into white through bogus share transactions. The assessing authority treated a portion of the share sale consideration as undisclosed income. Further, reassessment proceedings were initiated for the remaining amount.
The revenue contended that the CIT(A) erred in deleting the addition of the undisclosed income of the assessee. The revenue argued that the assessee was involved in converting black money into white through unlisted share transactions with accommodation entries.
Upon review, the tribunal found that the assessing authority lacked evidence to support the addition of undisclosed income related to transactions with a third party, M/s JRD Stock Brokers. The CIT(A) verified the assessment records and noted that the assessee had provided contract notes for the share transactions, which were not proven false. The tribunal upheld the CIT(A)'s decision, stating that no adverse inference was made regarding the share transactions, and the revenue failed to produce contrary evidence.
As a result, the revenue's appeal was dismissed, affirming the CIT(A)'s order.
-
2009 (5) TMI 935
The Appellate Tribunal ITAT Mumbai corrected the Assessment Year from 2004-05 to 2003-04 in their order dated 6th May, 2009 for ITA No.1785/Mum/2007. This correction was made under section 254(2) of the Act.
-
2009 (5) TMI 934
Presumption of correctness of the nomination paper -`decision making process' - Determining the genuineness of signatures of the two proposers - Names of the proposers were forged - rejection of nomination - Instructions contained in the Handbook are binding - Returning Officer as ''Statutory authority'' - Nature of Jurisdiction of High Court in election petition ''Original or Appellate'' - HC dismissed the election petition opining that the returning officer had not committed any error in his decision making process in rejecting the nomination paper.
HELD THAT:- Section 100 of the Act provides for the grounds for declaring election to be void inter alia in a case where a nomination has been improperly rejected. Improper rejection of a nomination, on a plain reading, in our opinion, would not mean that for the said purpose an election petitioner can only show an error in the decision making process by a Returning Officer but also the correctness of the said decision. Indisputably, there exists a distinction between a decision making process adopted by a statutory authority and the merit of the decision. Whereas in the former, the court would apply the standard of judicial review, in the latter, it may enter into the merit of the matter.
Even in applying the standard of judicial review, we are of the opinion that the scope thereof having been expanded in recent times, viz., other than, (i) illegality, (ii) irrationality and (iii) procedural impropriety, an error of fact touching the merit of the decision vis-`-vis the decision making process would also come within the purview of the power of judicial review.
The Returning Officer is a statutory authority. While exercising his power u/s 36 of the Act, he exercises a quasi-judicial power. For the said purpose, the statute mandates him to take a decision. A duty of substantial significance is cast on him. As in the present case, by his order the fulcrum of the democratic process, viz., election can be set at naught. While exercising his quasi-judicial power, in terms of the provisions of the Act, it was incumbent upon the Returning Officer to follow the instructions contained in the Handbook. It provides for:
(i) opportunity to be given to candidate to rebut the objections by placing sufficient materials on record:
(ii) A presumption of validity of such nomination paper.
Indisputably, the instructions are binding being statutory in nature. Rakesh Kumar v. Sunil Kumar[2003 (10) TMI 634 - SUPREME COURT]
The Presumption of correctness of the nomination paper being statutory in nature, as intention of the Parliament as also the Election Commission was that even if somebody had filed an improper nomination, but for which he can be given benefit of doubt being a possible subject matter of an election petition where the question would be gone into in details, it was for the respondent herein to prove that the nomination paper prima facie did not contain the signatures of the proposers and, thus, were liable to be rejected.
A quasi- judicial authority while deciding an issue of fact may not insist upon a conclusive proof. While doing so, he has to form a prima facie view. Indisputably, however, in terms of sub-section (5) of Section 36 in Handbook for Returning Officers, if any objection is raised then while holding the summary inquiry in the matter of taking a decision on the objection as to whether the same is valid or not, he is not only required to record his brief decision for the same but further in case of doubt the benefit must go to the candidate and the nomination paper should be held to be valid although his view may be prima facie a plausible view or otherwise bona fide.
Evidence by way of an affidavit is one of the modes of proving a question of fact both under the Code of Civil Procedure as also under the Code of Criminal Procedure besides other special statutes recognizing the same. The Returning Officer, thus, while exercising his quasi judicial function could have appreciated the evidence brought on record by the parties by way of affidavits. A wrong question posed, leads to a wrong answer, which is a misdirection in law.
In an election petition, the High Court acts as a Court of original jurisdiction and the election petition is a civil trial and the jurisdiction in such a trial, stricto sensu cannot be said to be appellate in nature - The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention.
As the matter has not been adjudicated on merits, we set aside the judgment and order passed by the High Court and remit the matter to the High Court to proceed in accordance with law and decide the dispute raised in the election petition in accordance with law as expeditiously as possible and at least within a period of six months from today. Since it is an election petition and is required to be decided within a period of six months, the High Court should make an endeavour to complete the trial within a period of six months from today, if necessary by holding a day to day trial.
However, a statutory right of a party to file an election petition cannot and, in our opinion, for all intent and purport, should not be denied only on the basis of a wrong concession made by a counsel. We have noticed hereinbefore the order passed in Application No. 1 of 2004 in Election Petition No. 1 of 2004. Therein, a contention was raised that the election petition was not based on corrupt practices. The concession, if any, was confined only to the said question, by reason thereof, a right vested in a suitor by reason of a statute could not have been taken away. [M.P. Gopalakrishnan Nair and Another v. State of Kerala and Others [2005 (4) TMI 568 - SUPREME COURT].
Therefore, we are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. The appeal is allowed with the aforementioned directions. However, in the facts and circumstances of the case, there shall be no order as to costs.
-
2009 (5) TMI 931
Issues involved: Interpretation of deduction u/s.10A of the Income-tax Act regarding exclusion of certain expenses from total turnover for computing deduction.
Summary:
Issue 1: Exclusion of travel expenses and leased line charges from total turnover for deduction u/s.10A
The assessee, a domestic company in the business of design and development, claimed deduction u/s.10A for the assessment year 2004-05. The Assessing Officer questioned the exclusion of travel expenses in foreign currency and leased line charges from the total turnover for computing the deduction. The assessee argued that as per the definition in clause (iv) of Explanation 2 of section 10A, these expenses should be excluded from the total turnover to maintain parity with the export turnover. The Assessing Officer, however, computed the deduction using a different method. On appeal, the Commissioner of Income-tax (Appeals) initially agreed with the Assessing Officer but later directed the deduction to be computed as claimed by the assessee, citing precedents from the Tribunal. The revenue appealed against this decision.
Issue 2: Application of Special Bench decision on deduction from total turnover
During the hearing, it was noted that a Special Bench decision in a similar context of section 10B had ruled that expenses deducted from export turnover should also be deducted from total turnover, even though the latter term was not defined. Given the similarity between sections 10A and 10B, the Tribunal affirmed the decision of the Commissioner of Income-tax (Appeals) based on the Special Bench ruling. The appeal by the revenue was dismissed in line with this interpretation.
In conclusion, the Tribunal upheld the decision of the Commissioner of Income-tax (Appeals) regarding the exclusion of certain expenses from the total turnover for computing deduction u/s.10A, based on the interpretation derived from a Special Bench decision related to a similar provision under section 10B.
-
2009 (5) TMI 930
Issues involved:
1. Set off of long-term capital loss against short-term capital gain.
2. Levy of interest under section 234D.
Issue 1: Set off of long-term capital loss against short-term capital gain:
The appeal was against the order of CIT(A) for the assessment year 2003-04, where the assessee disputed the disallowance of setting off long-term capital loss from the assessment year 2000-01 against short-term capital gain for the year 2003-04. The Assessing Officer (AO) did not accept the claim based on the amended provisions from the year 2003-04, which allowed long-term capital loss to be set off only against long-term capital gain. The assessee argued that the amended provisions should apply only to losses computed for the first time in 2003-04. The Tribunal upheld the CIT(A)'s decision, stating that the amended provisions applied to losses for any assessment year, not just for the year 2003-04. The Tribunal also referred to a similar case involving Reliance Jute & Industries Ltd. to support its decision.
Issue 2: Levy of interest under section 234D:
Section 234D provides for the levy of interest when a refund issued to the assessee under section 143(1) is later found to be excessive at the time of assessment. However, this section was inserted by the Finance Act, 2003, and is applicable only from the assessment year 2004-05. Since the assessment year in question was 2003-04, the Tribunal held that the provisions of section 234D were not applicable to the assessee. Citing a decision by the Special Bench of the Tribunal in the case of ITO v. Ekta Promoters (P) Ltd., the Tribunal ruled that the levy of interest was not justified and set aside the order of CIT(A) regarding the interest levied.
In conclusion, the Tribunal partly allowed the appeal of the assessee by upholding the decision on the set off of long-term capital loss against short-term capital gain and deleting the interest levied under section 234D for the assessment year 2003-04.
-
2009 (5) TMI 929
The Gujarat High Court admitted the case and issued notices on substantial questions of law regarding the use of FDRs belonging to the assessee trust for the benefit of Jignashu Patwa, lending of FDRs during A.Y. 2004-05, and unauthorized use of FDRs as security for borrowing money by the son of a Trustee.
-
2009 (5) TMI 928
Trading addition - unproved purchases while computing business income - CIT(A) deleted the addition u/ss. 69 and 69C - he observed that the purchases made remained unverified and therefore, relying upon decision of Kachwala Gems vs. Jt. CIT [2006 (12) TMI 83 - SUPREME COURT] invoked the provisions of s. 145(3) and directed the AO to apply the GP rate of 51 per cent as against gross profit declared by the assessee at 49.07 per cent, thus sustaining the trading addition.
HELD THAT:- We concur with the views of CIT(A) as regards the deletion of addition u/ss. 69 and 69C which appears to be reasoned one. As regards the application of s. 145(3), there is no dispute that the assessee has submitted the documents to prove the purchases but the same could not be verified in spite of the opportunity given to the assessee. None of the purchases in dispute was verified, though the sales have been made and therefore, definitely purchases have been made by the assessee. However, there is every possibility that purchases have been made from some other parties and there is every possibility of leakage of revenue. Therefore, we find no infirmity in the order of CIT(A) who has rightly invoked the provisions of s. 145(3).
Estimation of income, ld AR has submitted that the assessee has declared GP rate of 48.2 per cent in the following year and CIT(A) has observed that the GP rate is abnormally higher than the general trend -
In such circumstances and facts of the case and to cover up the leakage of revenue, an addition will meet both the ends of justice. Therefore, the AO is directed to act accordingly. Thus ground Nos. 2.1 and 2.2 of the assessee are partly allowed and ground Nos. 1 and 2 of the Revenue are dismissed.
Addition on account of unexplained investment in shares - shares representing off market transactions have been credited in demat account - HELD THAT:- There is no dispute that the assessee has made payment to the broker through account payee cheque. The copies of the bills of the broker are on record. The reason for delay in demat account and other allegations have been explained by the assessee hereinbefore and also before the authorities below. Therefore, the AO is not justified in treating the investment in shares as unexplained and no addition on this account can be made.
The addition so made is directed to be deleted. Thus ground No. 3 of the assessee is allowed.
Addition on account of claim on capital gain on shares - bogus capital gain - assessee has shown long-term capital gain on the sale of shares of one company - AO, treated it as unexplained income under the head income from other sources - CIT(A) confirmed the action of the AO.
HELD THAT:- Assessee has received the payment through account payee cheque and the assessee has submitted the copies of the sale bills which are on record. Confirmation of broker, assessee's bank account, party's ledger account, party's bank account, copy of demat application and allotment of demat account were submitted before CIT(A) who has sent the same for verification to the AO. The assessee has also submitted that the assessee has applied for opening the demat account which was wrongly filed in the non-corporate status and it was later on rectified. All the allegations made have been explained.
In such circumstances and facts of the case, we find no reason with the AO to make any addition on this account and he is directed to treat the same as long-term capital gain and allow the claim of the assessee . Thus ground No. 4 of the assessee is allowed.
Addition u/s. 69C on account of unexplained expenditure - CIT(A) deleted the addition u/s. 69C and proviso to s. 69C but invoked the provisions of s. 145(3) and estimated the income by directing the AO to apply the GP rate of 30 per cent on declared sales and sustained the addition - he confirmed the action of the AO in not allowing the deduction u/s. 80HHC on such addition.
HELD THAT:- We concur with the views of CIT(A) as regards the deletion of addition u/s. 69C and proviso to s. 69C since there is no doubt on the sales made by the assessee and definitely purchases have been made and therefore, the purchases cannot be said to be unexplained but at the same time, the assessee has made the purchases may be from some other parties. Therefore, the quantum of purchases declared remained unverified as discussed in the order of the authorities below. Therefore, we find no infirmity in the order of CIT(A) who has rightly invoked the provisions of s. 145(3).
Estimation of income, ld CIT(A) has observed that GP rate of 30 per cent is reasonable whereas the assessee has declared GP rate of 48.72 per cent and no malice on declaring of higher GP rate is proved and no material is there on record in this regard. Therefore, in such circumstances and facts of the case, though the application of s. 145(3) is upheld yet no addition is called for.
Therefore, the AO is directed to delete the addition sustained by CIT(A) and allow the claim u/s. 80HHC as claimed by the assessee. Thus ground Nos. 1 and 2 of the Revenue are dismissed and ground Nos. 2.1, 2.2 and 3 of the cross-objection of the assessee are partly allowed.
........
|
9911796707
