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2015 (12) TMI 1910
CENVAT credit of service tax paid by the Banking and other Financial Service provider - input service - HELD THAT:- The issue is no more res integra. This very of the Tribunal, has held that Banking and other Financial services will be covered under the definition of Input Service and CENVAT credit of service tax paid on the same would be eligible as credit for the manufacture of goods, especially when they are 100% EOU - Tribunal in the case of Vishal Malleables Ltd. [2012 (11) TMI 871 - CESTAT AHMEDABAD] has held that 'If the goods are exported, refund of Service Tax on the services which are used in relation to the goods exported, needs to be refunded.'
There are no reason to interfere with the impugned order of Commissioner (Appeals) and the same is upheld. Revenues appeal is dismissed.
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2015 (12) TMI 1909
Long term capital gain earned on sale of shares - Addition based on cash component in the sale of shares - Documents found during the survey relied upon - HELD THAT:- The contents in the documents found during the survey do not support the case of the AO as pointed out by the CIT(A). If the factual finding of the Ld.CIT (A) has to be dislodged then, the D.R. has to lead evidence to that effect.
Documents have to be produced to demonstrate that the order of the CIT (A) is perverse. No revised return of income was produced before us despite adequate opportunity being given to revenue. When the CIT (A) records that the contents of the documents do not tally with the case made out by the AO as the cheques and amounts mentioned therein are not tallying with the actual transaction, then no addition can be made based on these documents.
Coming to the legal position on the evidentiary value of statements recorded during the survey, the Hon’ble Courts have held that these statements have no evidentiary value. Even otherwise the purchasers have filed affidavits which stand uncontroverted till date. The assessee produced all evidences in support of their claim. The A.O. could not dislodge their claim with evidence. In our opinion the A.O. could not prove that there was cash payment for the purchase of the shares.
When an allegation is made by the Revenue that the assessee has earned certain income, the burden is on the Revenue to prove the same. In the case on hand the facts and evidences demonstrate that the Revenue has not discharged this burden of proof that lay on it. Thus we have no other alternative but to uphold the factual finding as well as the order of the First Appellate Authority and dismiss this appeal of the Revenue.
Reassessment order passed by non jurisdictional officer - ITO, ward 34(4) furnished a copy of the reasons recorded to the assessee on 7.9.2007. ACIT, Circle 34(1), New Delhi has admittedly not recorded that he had reasons to believe that income chargeable to tax of the assessee has escaped assessment. He continued reassessment proceedings initiated by the ITO, Ward 34(4) of the Act without independently recording reasons for reeopening or issuing a fresh notice u/s 148 of the Act. There is no order u/s 127 of the Act transferring the jurisdiction of the ccase from ITO, Ward 34(4) to ACIT, Ward 34(1). Thus this order of reassessment passed by the ACIT u/s 34(1) of the Act is without jurisdiction and hence is bad in law.
Non-issual of notice u/s 143(2) within the statutory period - AO records that the assessee in its letter dt. 10.9.2008 stated that the return of income filed by him earlier on 31.10.2006 should be treated as the return filed in response to a notice u/s 148 of the Act. Thus the date of receipt of this letter is the date of filing of the return of income in response to the notice issued u/s 148 of the Act. In such circumstances the notice u/s 143(2) of the Act should have been issued on or before 30.9.2009. However, in this case notice u/s 143(2) of the Act was issued only on 4.12.2009. Thus applying the propositions laid down in the case of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT ] assessment has to be held as bad in law. Decided in favour of assessee.
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2015 (12) TMI 1908
Revision u/s 263 - reliance on audit objections - HELD THAT:- As the order of the CIT-II Chandigarh u/s 263 has been set aside and quashed by the ITAT Chandigarh Bench [2015 (10) TMI 2588 - ITAT CHANDIGARH] and original assessment order has been restored. He has, therefore, submitted that present proceedings have thus, become infructuous.
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2015 (12) TMI 1907
MAT computation - Whether the Tribunal was correct in upholding the case of the assessee that deferred revenue expenditure debited to the P & L account could be modified and claimed during the current assessment year when computing book profits u/s 115JA - As decided by HC [2015 (1) TMI 1023 - KARNATAKA HIGH COURT] upholding the Tribunal's decision that the assessee is entitled to claim the entire expenditure as revenue expenditure for the purposes of Section 115JA. The court emphasized that the profit and loss account prepared in accordance with the Companies Act should be the basis for computing book profits, and deferred revenue expenditure is not recognized under the Act.
HELD THAT:- Delay condoned. We see no reason to interfere with the order impugned. The special leave petition is accordingly dismissed.
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2015 (12) TMI 1906
Nature of expenditure on debentures issued - HELD THAT:- It is now seen that by an order [2013 (9) TMI 1057 - DELHI HIGH COURT]. The question framed in the present appeals is similar to question No. (iii) in the said appeal and that has been decided in favour of the Assessee and against the Revenue.
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2015 (12) TMI 1905
Validity of reopening of assessment - reasons to believe - documents is the proforma of the reasons for the reopening which is somewhat different from the proforma in which the reasons were furnished to the Assessee with the ITO's - HELD THAT:- “Reasons for the belief that income has escaped assessment” for AY 2004-05 signed by the ITO. At the bottom of the said page there is an endorsement made to the “Addl. CIT, Range-6, New Delhi,” which then has been signed alongside by the Addl. CIT with the date of 21st March 2011. Assessee insists that this was the document that was given to him and which was also seen by the ITAT when it passed the impugned order in the present matter.
Revenue, on the other hand produced before the Court a file purportedly containing the relevant original documents. One of the documents is the proforma of the reasons for the reopening which is somewhat different from the proforma in which the reasons were furnished to the Assessee with the ITO's letter dated 27th June 2011 referred to hereinbefore.
This proforma (in the file) contains an endorsement of the Additional CIT who appears to have put his signature below the following hand written words: “I am satisfied”. However, these words are missing in the copy of the reasons furnished to the Assessee with the ITO's letter dated 27th June 2011. ITAT does not appear to have been shown the original document in the file which purportedly has the above words.
The Court then required Mr. Sawhney to show from the file the original of the Annexure to the letter dated 27th June 2011 of the ITO as addressed to the Principal Officer of the Assessee. At his request, adjourned 17th December 2015.
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2015 (12) TMI 1904
Treatment of loss arisen on account of foreign exchange derivative contracts - assessee suffered a loss on account of foreign exchange forward contract transactions and treated the same as part of business loss and set off such loss against the business income of the assessee - AO was of the opinion that this is a speculative loss and cannot be set off against business income of the assessee in view of the provisions of sec. 73 - as per CIT(A) loss arising from these forward contracts is not a speculative loss u/s 43(5) and he directed the Assessing Officer to treat the above loss as regular business loss
HELD THAT:- AO has to consider the foreign exchange derivative in proportion to export turnover as regular business transaction of the assessee. If the derivative transaction undertaken by the assessee is in excess of export turnover then that loss suffered in respect of that portion of excess transaction has to be considered as speculative loss only and that excess derivative transaction has no proximity with export turnover and the AO is directed to compute accordingly.
AO has to see whether there is any premature cancellation of forward contract of foreign exchange and that transaction should be taken out for the purpose of considering the business loss and only the transctions which are completed to be considered for the purpose of determining the business loss from these foreign exchange forward contract. With this observation, we remand this issue to the file of the AO for fresh consideration.
This issue was considered by the Mumbai Tribunal while delivering the decision in the case of Araska Diamond P. Ltd, [2014 (10) TMI 776 - ITAT MUMBAI] and after following the judgments of Bengal & Assam Co. Ltd [2009 (7) TMI 108 - CALCUTTA HIGH COURT] and Badridas Gauridu P. Ltd [2003 (1) TMI 61 - BOMBAY HIGH COURT] the Tribunal came to the conclusion that the transactions, which were prematurely cancelled, cannot be considered as business transaction and it is to be considered as speculative transaction. Appeal of the Revenue is allowed for statistical purposes.
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2015 (12) TMI 1903
Suit for recovery - dismissal on the sole ground of being barred by limitation - HELD THAT:- The period of limitation would, though, commence from the date of the last defaulted EMI, which is made the subject matter of the notice and not from the date of the notice itself. Therefore, in such a situation, Article 113 of the 1963 Act would become applicable as against Article 55.
The trial court while dismissing the suit has not alluded to any specific Article of the 1963 Act. Recourse has been taken by the trial court to Section 3 of the 1963 Act. Section 3, inter alia, only empowers a court to dismiss a suit which is barred by limitation even if limitation is not set up as a defence. The section by itself could not have helped the trial court in coming to the conclusion as to what should be the period of limitation in a case such as this. Furthermore, the reference to Article 37 in the written statement is also of no relevance as the appellant did not sue either on a promissory note or a bond.
The impugned judgement is set aside - appeal allowed.
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2015 (12) TMI 1902
Validity of Revision u/s 263 - CIT found that the AO has allowed the deduction u/s.80IB(10) without proper verification and without making necessary enquiries - assessee submitted that learned CIT has totally erred in holding that the AO has not made necessary enquiries and examination while allowing the assessee's claim of deduction u/s. 80IB(10) - HELD THAT:- Upon careful consideration as regards the merits of assessee's claim u/s.80IB is concerned, we find that in our order of even date in the case of the assessee for the assessment years 2003-04 to 2008-09 which includes the present assessment year, we have upheld the order of learned CIT(Appeals). In the said order CIT(Appeals) held that the assessee fulfils all the conditions laid down u/s. 80IB(10) of the I.T. Act.
AO has made the necessary enquiry by issuing questionnaire to the assessee and obtaining the details as he desired necessary. Now the learned CIT was of the opinion that the details obtained by the assessee were not sufficient. In our considered opinion this approach of the learned CIT in invoking the jurisdiction u/s. 263 of the I.T. Act is not sustainable.
AO has made the enquiry which he deemed fit. Now the learned CIT is directing to make further enquiry. This, in our considered opinion, is not the mandate of section 263 - CIT has also drawn adverse inference on the issue that capital introduced by the partners were not looked into by the AO in the assessment stage. We find that this alone cannot be a ground for invoking jurisdiction u/s. 263.
CIT has noted that the assessee has submitted necessary details before him. Learned CIT has not found any thing adverse in these details. Moreover there are case laws for the proposition that capital introduced by the partners has to be examined in the hands of partners in their individual account. Hence the AO having adopted one of the possible views, it cannot be said that the learned CIT was justified in invoking jurisdiction u/s. 263 of the I.T. Act.
Hon'ble Apex Court in the case of Max India Ltd [2007 (11) TMI 12 - SUPREME COURT] as expounded that where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as erroneous order prejudicial to the interest of the Revenue unless the view taken by the ITO is unsustainable in law.
Thus we hold that learned CIT was not justified in invoking jurisdiction u/s. 263 of the I.T. Act. Accordingly we quash the order passed by learned CIT u/s. 263 of the I.T. Act. Assessee appeal allowed.
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2015 (12) TMI 1901
Exemption u/s 10(23C)(vi) - claim rejected as society was diverting its income to the members of the society and, therefore, the society was not acting as a non-profitable institution - Commissioner rejected the application holding that the purpose/objects of the society as per the memorandum of association does not indicate that the institution is running solely for educational purpose
HELD THAT:- As perusal of the impugned order that based on a survey, a show cause notice was given and, thereafter, a finding has been given that the profits of the institution are being diverted to the members of the society in the garb of payment of interest on the unsecured loans given by them. The genuineness of this transaction has been doubted. A specific finding has been given that at the time when the members gave the loan, no rate of interest was payable by the institution but subsequently, for the subsequent assessment years, the rate of interest of 12% was charged to obviate the profit by way of interest and divert the money to its members in the garb of payment of interest on the loan given.
For the assessment year 2005-06, the rate of interest was increased from 12% to 18% and in 2006-07 the rate of interest was increased to 21%. This increase in rate of interest was to ensure that the income of the society was diverted to its members in the garb of payment of interest. The increase in the rate of interest could be seen on account of the increase in the income of the society. There is also a specific finding that the bye-laws had no provision for taking loan on interest, though, subsequently, the amendment was made in its bye-laws during the financial year 2006-07, which will have no effect in so far as the present application of the petitioner is concerned.
Thus an irresistible inference can be drawn that the petitioner's society, even if it was running an educational institution solely for education purposes, yet it was with the intention of earning a profit and it was not for a non-profit purpose. On this short ground, we are of the opinion that the order of the Commissioner does not require any interference. Decided against petitioner/society registered.
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2015 (12) TMI 1900
Sanction of Composite Scheme of Arrangement in the nature of Slump Sale - HELD THAT:- This Court is of the view that the present Scheme of Arrangement is in the interest of the shareholders and creditors of all the companies as well as in the public interest, therefore, the same deserves to be sanctioned.
Petition disposed off.
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2015 (12) TMI 1899
Revision of assessment - maintainability of petition - Availability of statutory remedy of filing an appeal as against the order of assessment - invocation of jurisdiction of this court under Article 226 of the Constitution - HELD THAT:- It is not the case of the petitioner herein that he was not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, the competent authority has passed the order of assessment, after giving due opportunity of hearing to the petitioner and by considering the objection raised by them. Needless to say that if the consideration of objection was not proper or erroneous, that cannot be a ground to maintain the writ petition, since the alleged erroneous consideration or improper consideration cannot be stated as violation of principles of natural justice. On the other hand, it may be a good ground for filing an appeal.
Therefore, when the present assessment order having been passed by the competent authority, after giving opportunity of hearing to the petitioner, the same cannot be questioned under Article 226 of the Constitution of India, as the petitioner has to raise all those grounds only before the appellate authority who is also a fact finding authority.
All these writ petitions are dismissed, however, with liberty to the petitioner to challenge the order impugned in these writ petitions before the appellate authority within a period of two weeks from the date of receipt of a copy of this order.
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2015 (12) TMI 1898
Levy of Entry Tax - entry of raw material being brought into a local area for consumption in manufacturing of a new commodity - HELD THAT:- The question of law has been decided by this Court in the case of THE COMMISSIONER COMMERCIAL TAX LKO. VERSUS S/S MARINO INDUSTRIES LTD. [2014 (12) TMI 1422 - ALLAHABAD HIGH COURT] wherein this Court has taken into consideration the finding of fact that the dealer was a manufacturer of laminated sheets using craft paper as raw material and not for packaging purposes and, therefore, the contention of the State has not been accepted by the Tribunal as it is only the goods specified in the schedule as notified by the State Government, which is liable to be levied with entry tax.
The goods as specified in the Notification specifically provide for paper for packing purposes and, therefore, that would not include the paper, which is being used as raw material. The question of law is, therefore, decided in favour of the assessee and against the revenue.
Revision dismissed.
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2015 (12) TMI 1897
Levy of penalty u/s 271(1)(c) - changing the heads of income due to difference of opinion - as per AO assessee has treated the Guest house as his business asset and accordingly, he was claiming depreciation thereon - assessee explained that the mistake has occurred due to wrong understanding of the accountant - CIT(A), deleted the penalty by holding that there was difference of opinion about the nature of Capital gain, i.e., whether it was long term capital gain or short term capital gain and it appears that the assessee was under bona fide belief that it was a long term asset as he was owning the property over a period of three year
HELD THAT:- The admitted facts are that the “Guest house” sold by the assessee is a business asset on which depreciation has been allowed. Hence, there is no dispute that the gain arising on sale of the same would be assessable as “Short term capital gain” as per the provisions of sec. 50 of the Act. However, the assessee has treated the same as non-business asset at the time of filing return of income and accordingly computed the long term capital gain.
The total income of an assessee for a particular assessment year is computed in accordance with the provisions of the Act by having regard to the accounts of the assessee. Hence, it is imperative on the part of the assessee to compute the total income in accordance with the provisions of the Act. In case of assessee, on which depreciation has been allowed, the provisions of sec. 50 mandate that the gain should be computed as “Short term capital gain” only.
The assessee has tried to defend his action by drawing support from the decisions rendered in the case of ACE Builders Pvt Ltd [2005 (3) TMI 36 - BOMBAY HIGH COURT] and Smita Conductors Ltd.[2013 (9) TMI 1056 - ITAT MUMBAI] In our view both the decisions cannot come to the support of the assessee, since they have been rendered in a different context.
It is not a case where the assessee has made a claim on some plausible basis, but the same became unacceptable in the eyes of law. It is also not simple case of changing the heads of income due to difference of opinion. On the contrary, the assessee himself has accepted that the gains arising on sale of guest house is assessable as Short term Capital gain. Hence, in our view, the facts of the case show that the assessee furnished inaccurate particulars of income and the explanations furnished by the assessee in that regard were not substantiated.
We are not able to agree with the view taken by the CIT(A). We notice that the assessing officer has levied penalty @ 200% of the tax sought to be evaded. In our view, the same appears to be on the higher side. Accordingly, we set aside the order of CIT(A) and direct the AO to sustain the penalty to the extent of 100% of the tax sought to be evaded. Decided in favour of revenue.
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2015 (12) TMI 1896
Levy of interest u/s 234(A) - Tribunal decided the issues in favour of the assessee which relates to levy of interest under Section 234(A) as the same has also been considered in earlier assessment years - Being aggrieved thereof, the instant appeal has been preferred.
HELD THAT:- We have gone through the orders passed by the authorities below as well as the ITAT and we are of the opinion that no substantial question of law arises out of the judgment rendered by the Income Tax Appellate Tribunal.
Thus, the appeal is hereby failed and dismissed accordingly.
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2015 (12) TMI 1895
Dishonour of Cheque - acquittal of accused - discharge of existing liability or not - case is barred under the West Bengal Money Lenders Act, 1940 or not.
Whether cheque was issued in discharge of existing liability? - HELD THAT:- It is a settled law that the holder of a cheque carries with him a presumption that the cheque was rightly issued. It is true that as per the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hedge [2008 (1) TMI 827 - SUPREME COURT] it was held that even though the holder of such cheque carries such presumptive value but it is the liability of the complainant to prove that the said cheque was issued in respect of one legally enforceable debt. If the evidence of P.W.1 is scrutinized vis-à-vis the documentary evidence mainly Ext. 1 that is 'Chukti Patra' this Court can very well say that the said cheque was issued in favour of the present appellant in respect of one legally enforceable debt.
Whether this case is barred under the provisions of the West Bengal Money Lenders Act, 1940? - HELD THAT:- The money lending without licence is not totally barred or prohibited by the said Act. It is one regulatory Act and it regulates the business of money lending. Section 8 of the said Act says that after certain notification in the official gazette no money lender shall carry on the business of money lending unless he holds an effective licence. But the provision is not mandatory if one reads Section 13 of the said Act then he must say in the same tone with me that even if a money lender fail to file a money lending licence before the court while instituting the suit for recovery of a loan then filing of such suit is not barred.
In the present case before this court P.W.1 claimed that he had money lending licence but could not produce the same. This is not a civil litigation and as such the rigors of Section 13 of the Money Lenders Act cannot be made applicable in this case. Thus, lending of money even without licence has not been specifically barred by the West Bengal Money Lenders Act and as such the payment made by the complainant to the respondent was perfectly valid by the said Act of 1940. If that be so the argument of the respondent that the complainant appellant had no legally enforceable debt as against the respondent cannot have any leg to stand on. The decision of the learned trial court on this point that there was no legally enforceable debt is not tenable and this Court respectfully differs with that view.
Thus, this Court is of the view that the learned trial court erred in acquitting the present accused in respect of the charge punishable under Section 138 of the N.I. Act. The impugned order of acquittal passed in C. Case No. 435 of 2006 by the Judicial Magistrate, Baruipur, 24 Parganas (South) is hereby set aside.
Appeal disposed off.
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2015 (12) TMI 1894
PE in India - Scope of Article 5(2)(k) of DTAA between India and the UK - HELD THAT:- As in latest order passed by the Tribunal in [2015 (9) TMI 1532 - ITAT MUMBAI] in which identical issue has been decided while we agree with the learned counsel that art. 15 will not be applicable on the facts of the present case, this finding does not really come to the rescue of the assessee since, as we have already held, the assessee did have a PE in India under art. 5(2)(k) of the India-UK tax treaty, and, accordingly, profits attributable to the PE are taxable under art. 7 of the India-UK tax treaty. Decided against assessee.
Reimbursement of the expenses as part of the income of the assessee - As decided in assessee own case [2015 (9) TMI 1532 - ITAT MUMBAI] as held reimbursements received by the assessee are in respect of specific and actual expenses incurred by the assessee and do not involve any markup, there is reasonable control mechanism in place to ensure that these claims are not inflated, and the assessee has furnished sufficient evidence to demonstrate the incurring of expenses. There is thus no good reason to make any addition to income in respect of these reimbursements of expenses - Decided in favour of assessee.
Interest charged u/s 234B is to be deleted.
Income relatable to work performed in India in liable for taxation in India - HELD THAT:- We find that in assessee’s own case for A.Y.1998-99 to 2001-02 [2015 (9) TMI 1532 - ITAT MUMBAI], the Tribunal has held that the profit which is attributable to the PE, can only be assessed in India.
Respectfully following the aforesaid order and order of the Hon’ble Special Bench in the case of Clifford Chance [2013 (6) TMI 544 - ITAT MUMBAI] It is held that the only income in respect of services rendered in India, which are attributable to PE only, would be taxable in India. Thus, ground no. raised by the Revenue stands dismissed.
Allow 85% of disbursement claim proportionate to the fee related to the services rendered in India as compared to total fees - We direct the AO to follow the aforesaid order of the Tribunal [2015 (9) TMI 1532 - ITAT MUMBAI] and hold that no amount should be disallowed.
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2015 (12) TMI 1893
Cartelization by the manufacturers of cement and manipulation of prices - Section 19(1)(a) of Competition Commission Act, 2002 - constitutional validity of Rule 3 of the Competition Commission of India (Selection of Chairperson and other Members of the Commission) Rules, 2003 - violation of principles of natural justice.
HELD THAT:- In a number of decisions, the High Courts and Supreme Court have repeatedly ruled that the Commissions, Tribunals and other administrative bodies clothed with the power to adjudicate upon the rights of the parties or pass orders adversely affecting a person or a body of persons or imposing penalty for contravention of any statutory provision or otherwise are bound to act justly, fairly and in consonance with the principles of natural justice.
In Mahipal Singh Tomar v. State of Uttar Pradesh [2013 (5) TMI 1064 - SUPREME COURT], the Supreme Court examined the issue relating to violation of natural justice in a case where copy of the enquiry report was not furnished to the affected person and he was not given opportunity to represent his cause against the allegation of large scale irregularities in the placement of selected candidates in different colleges.
The Chairperson did not have the opportunity of hearing the arguments of the advocates for the parties, which lasted for three days i.e. 21st, 22nd and 23rd February, 2012 and yet he became party to the decision. Obviously, he did not know what are the nature and contents of the arguments of the seven Senior Advocates and other advocates, who appeared for the parties. The minutes of the meetings recorded on those dates do not show that the remaining six Members had recorded the arguments advanced by the learned advocates, as was done by the officer who heard the arguments in Ossein and Gelatine Manufacturers' Association of India v. Modi Alkalies and Chemicals Limited and Another [1989 (8) TMI 347 - SUPREME COURT]. The Chairperson's participation in the decision making process had salutary effect on the final verdict.
The arguments of Respondents that no prejudice has been caused to the appellants due the participation of the Chairperson in the decision-making process cannot be accepted. It is not possible to make a guesswork of what would have been the fate of the case if the Chairperson had not taken part in the decision-making process. One does not know whether the remaining six Members would have reached a positive conclusion that the appellants are not guilty of violating Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act and/or they would not have imposed the particular penalty under Section 27 of the Act.
The impugned order is vitiated due to the violation of one of the facets of the principles of natural justice, we do not consider it necessary to deal with and decide other points argued by the learned counsel for the appellants for assailing the order under challenge - The impugned order is set aside and the matter is remitted to the Commission for fresh adjudication of the issues relating to alleged violation of Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act by the appellants. The appellant shall be entitled to withdraw the amount deposited by them in compliance of the interim order passed by the Tribunal.
Appeal allowed.
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2015 (12) TMI 1892
Cancellation of bail granted - accused is facing trial under Section 302 IPC for which punishment is life imprisonment or death - bar on grant of bail under Section 437 of Cr.P.C. - HELD THAT:- It is true that once bail granted should not be cancelled in a mechanical manner without considering any supervening circumstances which is not conducive to fair trial. It is also settled law that once bail is granted, it cannot be considered barely on a request from the side of the complainant unless and until the complainant shows that the same is being misused and it is not no longer conducive in the interest of justice to allow the accused any further to remain on bail. The bail can be cancelled only in those discerning few cases where it is shown that a person to whom the concession of bail has been granted is misusing the same.
The respondent is facing trial for the offence punishable under Section 302 IPC and Section 25/27/30 Arms Act. The respondent sustained bullet injuries in his hand which clearly shows his presence at the spot at the time of incident in question. This fact has been further established by the opinion dated 20.03.2014 given by Dr. Bhim Singh with regard to bullet injuries sustained by respondent. He opined that the said injuries could be possible due to low velocity project-tile (bullet), which lost velocity after piercing the body of the deceased Rajbeer Rana.
It is not in dispute that the accused is facing trial under Section 302 IPC for which punishment is life imprisonment or death. Thus, granting bail is barred under Section 437 of Cr.P.C. If in such a case, bail is granted in a mechanical manner then wrong message goes to society that after committing a heinous crime one can move freely out of the jail. This type of concession encourages the offender and discourages the victim in particular and the society as a whole. Thus, in such cases bail should be granted rarely in a case where the involvement of the accused is prima facie doubtful - In the case in hand the respondent actively participated in committing murder. His presence is very much established by the injuries received on his hand. Accordingly, the order dated 02.03.2015 whereby the learned trial Court granted bail to the respondent is set aside.
The respondent is directed to surrender before the trial Court within one week from today - Petition allowed.
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2015 (12) TMI 1891
TDS u/s 194A - interest on deposits held by the Branch - assessee in default for not deducting tax at source on alleged deposits which were funds of the Central Government - CIT(A) has held that societies which are being wholly funded by Government would qualify for non deduction of tax u/s 194A in accordance with notification No. 3489 dated 22.10.1970 - HELD THAT:- As per the PMGSY [a scheme of the Ministry of Rural Development], any interest income accrued on surplus funds of the project parked in the bank would be of Ministry of Road Developments and State Rural Road Development Agency would not have any right over the interest income. Chapter X of the Accounting Manual of PMGSY Scheme is explicit in this regard and the AO erred in relying on Chapter XIII of the said Manual.
Chapter X of the Accounting Manual is specific with regard to the nature and state of interest income, stating the interest income as belonging to the Ministry of Rural Development. The State Rural Road Agency does not have any control whatsoever on the interest income. That being so, the contents of Chapter XIII of the Accounting Manual, as rightly held by the ld. CIT(A), cannot over ride those of Chapter X of the Manual.
J&K State Rural Road Agency is a body established by the Government of J & K, registered under the Societies Registration Act and is fully funded by the Government and it is not required to make TDS.
Then, in BRANCH MANAGER, STATE BANK OF BIKANER & JAIPUR [2012 (4) TMI 210 - ITAT JAIPUR] as held that for interest on such like deposits, TDS provisions of section 194A of the Act are not attracted. This decision was also taken note of by the ld. CIT(A) while deleting the demand raised. Also, no contrary decision has been pressed into service before us on behalf of the department. Decided in favour of assessee.
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9911796707
