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2009 (7) TMI 1274 - SUPREME COURT
Source of power on the part of the RBI to issue circulars and guidelines as regards one time settlement - bank to settle the case in terms of the said guidelines as applicable at the time of declaring the account as Non Performing Assets (NPA) and not to recover the said amount in terms of the judgment and recovery certificate - Respondent – Bank issued a circular bearing No. 176 dated 18.10.2005. Questioning the validity of the said circular - Appellants herein as also the Performa respondent Nos. 2 to 11 along with one Smt. Darshan Kaur (since deceased) obtained the facilities for grant of loan for a sum of ₹ 3, 54,50,000/- for business purposes - mortgaged their properties in favour of the respondent – Bank by way of security - Defaults having been made in discharging their liabilities, their assets were declared as NPA as per the guidelines issued by the Reserve Bank of India.
The Appellate Tribunal affirmed the judgment as also the validity of the recovery certificate dated 23.11.2006. It furthermore permitted the appellants and the Proforma Respondent Nos. 2 to 11 to sell the secured properties for clearing the dues in terms of one time settlement scheme and ordered that such an exercise must be completed within a period of four months during which period the bank was restrained from taking any coercive steps against them.
Respondent – Bank filed writ application thereagainst which by reason of the impugned judgment has been allowed. Appellants filed a review application before the High Court which has been dismissed.
HELD THAT:- The Reserve Bank of India is a statutory authority. It exercises supervisory power in the matter of functionings of the Scheduled Banks. The matter relating to supervision of Scheduled Banks is also governed by the Reserve Bank of India Act. For the aforementioned purpose, the Reserve Bank is entitled to issue guidelines from time to time.
The Parliament also enacted the 1949 Act to consolidate and amend the law relating to banking.
We may, however, place on record that the Parliament, in its wisdom, inserted Section 36A of the Act by the Banking Companies (Amendment) Act, 1959 in terms whereof some of the provisions of the 1949 Act were not to be applied to certain banking companies.
The guidelines were issued by the Reserve Bank of India by reason of a letter dated 3.09.2005 addressed to the Chairman/ Managing Director of all public sector banks. It clearly refers to a circular dated 19.08.2005 issued by the Reserve Bank of India in terms whereof it was directed that one time settlement scheme for recovery of NPA below ₹ 10 crore was laid down.
The said letter was issued pursuant to the aforementioned circular in terms whereof one time settlement scheme was formulated for recovery of NPA below ₹ 10 crores. It was categorically stated therein that the same was required to be implemented by all public sector banks. The guidelines issued were to provide a simplified, nondiscretionary and non-discriminatory mechanism therefor in SME sector. It was categorically stated that all public sector banks shall uniformly implement these guidelines.
Respondent – Bank concededly is a public sector bank. It was, therefore, bound by the said guidelines. The said circular letter was issued by the Chief General Manager of the Reserve Bank of India. The High Court in its impugned judgment inter alia was of the opinion that he had no authority therefor.
Whether the respondent – Bank had itself applied the said guidelines in case of the appellants or not - We may notice that the respondent – Bank appears to have accepted the said guidelines as is evident from the letter dated 24.11.2005 by the respondent Bank to the appellants. Such a proposal was made bona fide. It was within the framework of the guidelines issued by the Reserve Bank of India.
It is not necessary to place on record the further correspondences exchanged between the parties although our attention has been drawn thereto in terms whereof the appellants had all along been making sincere efforts to one time settlement within the parameters of the guidelines issued by the Reserve Bank of India.
It may be true that the appellants filed a writ petition before the Punjab and Haryana High Court which was dismissed on the ground of suppression.
The said order of the Punjab and Haryana High Court dated 21.11.2006 again indisputably has been affirmed by this Court. But, in our opinion, the same by itself did not preclude the appellants to approach the Appellate Tribunal. The jurisdiction of the appellate tribunal is co-extensive with the powers of the Tribunal. The memo of appeal filed by the appellants before the Tribunal clearly shows that the contentions with regard to the enforcement of the aforementioned provisions had been made therein.
It is, therefore, not correct to contend that no pleadings were made for the purpose of enforcing the RBI guidelines in respect of one time settlement.
Keeping in view the provisions of the 2002 Act, did not preclude the Appellate Tribunal to consider the offer of the appellants. The Appellate Tribunal in terms of the provisions of the Act like the original Tribunal is interested only in recovery of the amount. While doing so, it, in our considered opinion, has the requisite jurisdiction to consider the prayer made by a debtor for one time settlement particularly in view of the fact that the same is within the purview of One Time Settlement Scheme of the RBI. If a public sector bank is otherwise bound by any guidelines issued by the RBI, we see no reason as to why the same cannot be enforced in terms of the provisions of the Act by the Tribunal and consequently by the Appellate Tribunal. It is not a case where the appellants had prayed for quashing of a policy decision taken by the respondent – Bank.
The question which arose for consideration before the Appellate Tribunal as also before the High Court was as to whether offer having been made by the bank to the appellants herein, it could have turned around and contend that only because the appellants had furnished security to the extent of ₹ 11 crores, the same by itself would entitle it to take recourse to a discriminatory treatment. The answer to the said question must be rendered in the negative.
We may notice that the offer made by the appellants in terms of the RBI guidelines for one time settlement was ₹ 3,45,31,000/-, however, keeping in view the fact that the respondent – Bank had a better security available to it demanded a sum of ₹ 4.92 crores.
If, therefore, the broad policy decisions contained in the guidelines were required to be followed, the power of the Board of Directors to make deviation in terms of Clause 4 thereof would only be in relation to some minor matters which does not touch the broad aspects of the policy decision and in particular the one governing the non-discriminatory treatment. In a case of this nature, we are satisfied that the respondent – Bank is guilty of violation of the equality clause contained in the Reserve Bank of India guidelines as also Article 14 of the Constitution of India.
Whether the guidelines issued by the Reserve Bank of India are binding or not - stands concluded by reason of a Constitution Bench Judgment of this Court in Central Bank of India v. Ravindra and Others [2001 (10) TMI 1065 - SUPREME COURT]. Yet again in Corporation Bank v. D.S. Gowda and Another [1994 (6) TMI 217 - SUPREME COURT] this Court held:
“17…As pointed out earlier, under the Banking Regulation Act wide powers are conferred on the Reserve Bank to enable it to exercise effective control over all banks. Sections 21 and 35-A enable it to issue directives in public interest to regulate the charging of interest on loans or advances made from time to time…”
Judicial discipline mandates the bench comprising of two Judges to follow the judgments of the Constitution Bench having regard to Article 141 of the Constitution of India.
If in terms of the guidelines issued by the Reserve Bank of India a right is created in a borrower, we see no reason as to why a writ of mandamus could not be issued. We would assume, as has been contended by Mr. Singh, that while exercising its power under Article 226 of the Constitution of India, the High Courts may or may not issue such a direction but the same, in our opinion, by itself, would not mean that the High Court would be correct in interfering with an order passed by the Appellate Tribunal which was entitled to consider the effect of such one time settlement.
In BSNL & anr. v. BPL Mobile Cellur Ltd. & ors.[2008 (5) TMI 648 - SUPREME COURT], it was held that “the direction contained in the said circular letters are relevant for the officers who are authorised not only to grant licenses but also enter into contracts and prepare bills. The circular letters having no statutory force undoubtedly would not govern the contract”.
A distinction, thus, must be made between statutory and non-statutory guidelines. A distinction must also be made between the circular which are relevant but not binding on the third parties and which are imperative in character.
As regards the Reserve Bank of India guidelines, it was the direction of the Appellate Tribunal that the Respondent-Bank should settle the case of the appellants under the RBI guidelines through a One Time Settlement and should invite a proposal for settlement and recovery of the agreed amount. The Appellate Tribunal in passing its order followed the dicta laid down in Constitution Bench judgment in Central Bank of India [2001 (10) TMI 1065 - SUPREME COURT], wherein it was held that:
“.....RBI directive have not only statutory flavour, any contravention thereof or any default in compliance therewith is punishable under subsection (4) of S. 46 of the Banking Regulation Act, 1949”.
We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. The appeals are allowed.
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2009 (7) TMI 1273 - ITAT DELHI
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... ... ..... o construed as to increase the jurisdiction of the tribunals under the relevant section. The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as a proviso to sub-section (3) of section 34, which deals with completion of an assessment, but would have been added to sub-section (1) thereof. (emphasis ours) 46. In view of the above discussion, we cannot accept the contention of Ld. AR that this Tribunal should give direction to the Department to allow the impugned expenditure in any appropriate year. This ground of the assessee is dismissed in the aforementioned manner. 47. In the result, appeal filed by the revenue is partly allowed and appeal filed by the Assessee is dismissed. Order pronounced in the Open Court on 24.07.09.
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2009 (7) TMI 1272 - CESTAT, AHMEDABAD
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... ... ..... plea of being not guilty in this case, advanced by the CHA M/s. Vaz Forwarding Ltd., their Director Shri Winstor Gregor Vaz and their representative Shri Suresh Yadav is not acceptable." 4. As is seen from the above, there is no direct evidence on record to show that the said appellants were aware of the fact of the advance licences being bogus and forged. There may be some contravention as regards following procedure envisaged in the Customs House Licensing Rules, but there is virtually no evidence to show any knowledge on the part of the appellant about the forged advance licences. Even the officers cleared the goods against said licences and it is only subsequently on investigation that these licences were found to be forged and bogus. Under these circumstances, I find no justifiable reason to impose the penalties imposed upon the appellants. The same are, accordingly, set aside and appeals allowed with consequential relief to them. Pronounced in Court on 27.7.2009.
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2009 (7) TMI 1271 - ITAT, BANGALORE
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... ... ..... production in STP unit after getting approval. Thereafter only the undertaking claimed exemption u/s 10A of the IT Act. The claim of the assessee is supported by Board Circular No. 1/2005, where it has been clearly held that undertaking set up in Domestic Tariff Area (DTA), which is subsequently approved as 100 export oriented, is entitled to relief u/s 10B of the IT Act provided the undertaking shall get relief only for the remaining period of ten consecutive years beginning with assessment year in which the undertaking begins to manufacture computer software as a DTA unit." Respectfully following the judgment of the Punjab and Haryana High Court in the case of Mahavir Spinning Mills Ltd. (supra) and the order of the co-ordinate Bench of the Tribunal in the case of M/s. Foresee Information Systems (P) Ltd., (supra)., we reject the grounds raised by the revenue. 7. In the result, appeal filed by the revenue is dismissed. Order pronounced in the open court on 24.7.2009.
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2009 (7) TMI 1270 - ITAT AHMEDABAD
Disallowance of interest and administrative expenses - HELD THAT:- Ld. Counsel for the assessee fairly stated that none of the authorities below has gone into the Rule 8D of Income-tax Rules, 1962 as inserted by the IT (Fifth Amdt.) Rules, 2008 w.e.f. 24-3-2008. Accordingly, he requested the Bench to set aside this issue to the file of the Assessing officer to reconsider the whole issue in the light of Rule 8D. The Ld. DR conceded the position.
Accordingly, we set aside this issue to the file of the Assessing officer with the direction to re-adjudicate the same afresh in accordance with law after providing reasonable opportunity of being heard to the assessee. This issue of the assesse’s appeal is allowed for statistical purposes.
Deduction u/s 80IB on PAA plant - DEPB benefit - HELD THAT:- We find that in the case of ELTEK SGS P.Ltd.[2008 (2) TMI 17 - DELHI HIGH COURT] has allowed the claim on duty drawback. Since this High Court is in favour of the assessee and one High Court i.e., Hon'ble Punjab and Haryana High Court against the assessee, applying the case law of Hon'ble Apex Court in the case of CIT v. Vegetable Products Ltd[1973 (1) TMI 1 - SUPREME COURT], the beneficial view, which is in favour of the assessee is to be adopted. Respectfully following, the above, we allow the claim of the assessee and this common issue in both the appeals of the assessee is allowed.
Deduction on the amount of deduction u/s 80IA and 80IB - reduced while calculating the deduction u/s 80HHC - HELD THAT:- In the case of M/s. SCM CREATIONS [2008 (3) TMI 223 - MADRAS HIGH COURT], it is noticed that, the amendment brought out in Chapter VIA of the Act and introduction of section 80IA(9) was not brought to the notice of the Hon’ble High Court. The Hon’ble Special Bench of Chennai in the case of Rogini Garments [2007 (4) TMI 122 - ITAT, CHENNAI] has already considered the case law of J.P. Tobacco Products P.Ltd.[1996 (8) TMI 29 - MADHYA PRADESH HIGH COURT] and has also considered the amended provisions of section 80IA(9) of the Act.
Respectfully following the Special Bench of Chennai in the case of Rogini Garments (supra), which now stands confirmed by a Five Members Special Bench, Delhi, we are of the view that relief u/s 80-IA should be deducted from the profits and gains of the business before computing relief u/s 80HHC of the Act. Accordingly, this issue of the assessee’s appeal is decided against the assessee and in favour of the Revenue. Accordingly, this issue of the assessee’s appeal is dismissed.
Deduction u/s 80HHC - sale proceeds of DEPB license - HELD THAT:- It is noticed that this issue relates to computation of deduction u/s.80HHC vis-à-vis the income from DEPB. The Ld. Counsel for the assessee contended that this issue can be restored back to the file of the AO in view of the amendment as brought by Taxation Laws (Amendment) Act, 2005 w.e.f 1-4-1998 by virtue of which clause (iiid) is inserted in Section 28 and also Second , third and fourth provisos as inserted by this amendment. The Ld. Counsel for the assessee stated that neither of the authorities below has gone into the amended provisions and accordingly this issue can be set aside to the file of the Assessing officer. The DR also conceded this position.
Accordingly, we set aside this issue to the file of the AO with the direction that the AO shall recomputed the deduction u/s.80HHC of the Act, in view of the amendment by the Taxation Laws (Amendment) Act, 2005 w.e.f 1 4-1998, after giving proper and reasonable of being heard to the assessee. Accordingly, this issue of the assessee’s appeal is allowed for statistical purposes.
Addition on account of transfer pricing adjustment - Arm’s Length Price - manufacturing & sale of Intermediates, dies, colours etc - two subsidiaries based in USA and UK namely, AAI and AEL - CUP method - HELD THAT:- We are of the view that the CUP method compares the price charge for property transferred in a controlled transaction to the price charged for property transferred in a comparable uncontrolled transaction in comparable circumstances. If there is any difference between the two prices, this may indicate that the conditions of the commercial and financial relations of the associated Enterprises are not at arm’s length and, that the price in the uncontrolled transaction may need to be substitute for the price in the controlled transaction. In the cases, where controlled and uncontrolled transactions are comparable, then regard should be had to the effect on price of border business function other than just product comparability. The examples provided in the OECD guidelines of Transfer Pricing Guidelines for Multinational Enterprises and Tax Administration has discussed how the CUP method is to be applied.
The Hon'ble Banagalore Special Bench in the case of Aztec Software & Technology Services Ltd. [2007 (7) TMI 50 - ITAT BANGALORE] has also held that taxpayer as a party to the transaction has full knowledge of transaction carried out and as a personal associate with that particular line of business, the assessee reasonably accepted to be not only aware about nuisance of that business and but also economic conditions and peculiar situation of that business. The Bench further held that the assessee knew even about the comparable uncontrolled transaction, and therefore it is reasonable to call upon the taxpayer to furnish controlled / un controlled transactions which are within taxpayer’s special knowledge. Accordingly, the burden placed on the assessee is not discharged in the present case before us as the assessee has not filed the details before TPO or the Assessing officer. The relevant details, i.e. the transaction carried out of comparable controlled and uncontrolled transactions.
In view of these facts, and in the absence of material, we have no alternative but to expect to set aside this issue to the file of the Assessing officer to decide the issue afresh after giving reasonable opportunity of being heard to the assessee. The assessee may show that sale price of the controlled transactions are at arm’s length. If there are differences between the controlled and uncontrolled transactions, then the assessee is entitled to the benefit of adjustment for such differences under the T.P. Rules. The AO/TPO is directed to pass a fresh order in the light of the above observations. This mater is set aside in the entirely to the file of the AO of this issue.
Penalty levied u/s 271(1)(c) - disallowance of claim u/s.80IA and addition of transfer pricing difference of ALP - HELD THAT:- Assessee has stated in his explanation that very same Assessing officer had scrutinized the return for assessment year 2001-02 and had made disallowance of the assessee’s claim and hence, was aware about the legal stand of the assessee. The assessee is merely canvassing the same stand in the subsequent assessment year ie. Assessment year 2002-03 and hence, there is no question of any concealment or filing of inaccurate particulars in the return of income. The assessee also put the certificate of the chartered Accountant as required u/s 80IA(7) of the Act which also clearly demonstrate the bona fide of the assessee in making this claim.
Thus, we find that that it is a difference of opinion on legal point of view and the assessee’s explanation has never been held to be false and without that the penalty u/s.271(1)(c) of the Act cannot be levied. In the similar circumstances, the Hon'ble jurisdictional High Court in the case of J.C.I.T. v. Kiran Sytex Private Ltd.[2006 (9) TMI 555 - GUJARAT HIGH COURT] held that penalty levied for claim of deduction u/s.80HHC of the Act, which was disallowed while the claim of the assessee was that it was under a bona fide legal belief that it was entitled to the deduction. The Hon'ble High Court affirmed the findings of Tribunal quashing the penalty u/s.271(1)(c) of the Act. Since the facts being similar, we respectfully following the Hon'ble jurisdictional High Court delete the penalty u/s.271(1)(c) of the Act on this issue.
As regards to confirmation of penalty on account of addition of transfer pricing difference on ALP, the matter in quantum appeal has been set aside to the file of Assessing officer, the penalty cannot survive at this stage. However, the Assessing officer is free to initiate the penalty u/s.271(1)(c) of the Act if the facts warrant so during the course of assessment of set aside proceedings and as per law.
Accordingly, this appeal of the assessee is allowed as indicated above.
In the result, the appeals of assessee’s are allowed for statistical purposes and that of Revenue’s appeal is dismissed.
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2009 (7) TMI 1269 - ITAT AHMEDABAD
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... ... ..... d that assessee has made more payment than what is stated in the sale deed. Hon’ble Allahabad High Court in Dinesh Kumar Mittal v. ITO (1992) 193 ITR 770 (All.) qaushed the order of authorities below, wherein half of the difference between the amount paid and the value for purposes of stamp duty was added as income of the assessee by the Assessing Officer. It is held that there is no rule of law to the effect that the value determined for the purposes of stamp duty is the actual consideration passed between the parties to the sale. I.T.A.T. SMC Ahmedabad in ITA ANo.4120/Ahd/2008 in Nishaben Aminbhai Mithani deleted the addition made u/s 69 on account of difference between apparent consideration and valuation done by Stamp Valuation Authorities after following various authorities as referred to above. As a result, we delete the addition and allow the appeal of the assessee. 9. In the result, the appeal is allowed. The order was pronounced in the open court on 24.7.2009.
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2009 (7) TMI 1268 - SC ORDER
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... ... ..... ORDER Delay condoned. Dismissed.
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2009 (7) TMI 1267 - BOMBAY HIGH COURT
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... ... ..... ribunal considering the factual aspects came to the conclusion that there is no concealment on the part of the assessee. This finding of fact is based on the material available on record and correct appreciation thereof. In this view of the matter, we find no substantial question of law involved in this appeal. Appeal is, therefore, dismissed in limine with no order as to costs.
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2009 (7) TMI 1266 - ITAT AHMEDABAD
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... ... ..... power to impose penalty, that does not entitle the authority to impose penalty for every breach, howsoever venial or technical Hindustan Steel Ltd. Vs. State of Orissa,83 ITR 26(SC) . Moreover, Hon’ble Calcutta High Court in the case of Burmah-Shell Oil Storage & Distributing Co. of India Ltd. v. ITO 1978 112 ITR 592 have held that there could be no concealment in a case where on admitted facts the assessee disputes the liability to tax on legal contentions. o p /o p 8. In view of the foregoing and taking into consideration the totality of the circumstances and the explanation given by the assessee, we are of the opinion that the ld. CIT(A) was not justified in upholding the levy of penalty under section 271(1)(c) of the Act. Accordingly, we set aside the order of the learned CIT(A) and quash the order of the AO, levying penalty u/s 271(1)(c) of the Act. o p /o p 9. In the result, appeal is allowed. o p /o p Order pronounced in the open court on 24-07-2009 o p /o p
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2009 (7) TMI 1265 - ITAT AHMEDABAD
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... ... ..... hat penalty cannot be levied on estimated addition. Respectfully following the said decision, we delete the penalty levy of ₹ 3,23,040/- in the Assessment Year 1996-97. Further, in the Assessment Year 1997-98 the addition made of ₹ 6,78,172/- for payments made on account of bogus purchases made of ₹ 3,23,574/- in Assessment Year 1995-96 and ₹ 3,54,598/- in Assessment Year 1996-97 was deleted by the Tribunal in appeal filed by the assessee. Thus, the levy of penalty of ₹ 1,31,039/- made on this addition does not survive as the very basis of penalty does not survive after deletion of the addition by the Tribunal. We, therefore, set aside the order of the ld. CIT(Appeals) and delete the levy of penalty of ₹ 1,31,039/- made in Assessment Year 1997-98. Thus, the ground of appeal of the assessee in both the years are allowed. 9. In the result, the appeals of the assessee are allowed. Order signed, dated and pronounced in the Court on 31/07/2009.
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2009 (7) TMI 1264 - ITAT BANGALORE
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... ... ..... laced before us to support the contention of the revenue and therefore, we follow the order of the Tribunal and accordingly hold that the learned CIT(A) was justified in directing that no TDS is required when a software is acquired. 5. Another issue is as to whether the TDS is required to be deducted on reimbursement of expenses. 6. The Bangalore Bench in the case of BIAL vs ITO, Bangalore in ITA No.536 to 539/Bang/2006 vide order dated 17th December, 2007 has held that no TDS is required to be deducted when it is reimbursement of expenses. The Bangalore Bench vide order dated 17th December, 2007 observed that the expenses as incurred by the promoters compensated to them would not involve any profit element also and therefore, no deduction of tax is required to be made. Following that decision, we hold that no TDS was required to be deducted in respect of expenses reimbursed. 7. In the result, the appeal of the revenue is dismissed. Pronounced in the open court on 17.7.2009.
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2009 (7) TMI 1263 - ITAT AHMEDABAD
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... ... ..... e time and if no such action is taken then it should be deemed that application of the assessee is allowed in its favour. On the other hand, learned DR submitted that there is no appeal against an order which is not in existence. o p /o p 16. After hearing the learned AR of the assessee and learned DR , we find that the issue regarding non-granting exemption u/s.10(23C)(vi) of the Act cannot be adjudicated by the Tribunal, as no order under that Section has been passed. Section 253 does not provide an appeal against the order us/.10(23C)(vi) of the Act. If the concerned authorities have not passed any order on the application of the assessee filed in Form 56D as yet, option is available with the assessee to choose remedy provided under law. o p /o p With this remark, we dismiss the entire Cross objections of the assessee. o p /o p 17. In the result, all the Cross objections of the assessee are dismissed. o p /o p THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt.24.07.09 o p /o p
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2009 (7) TMI 1262 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... he relief was granted to the Improvement Trust, Moga and the Hon'ble Division Bench of this Court has observed that the Trust was not carrying on activities of general welfare covered by the expression “any other object of general public utility” used in Section 2(15) of the Act. Mrs. Savita Saxena, learned counsel for the respondent has stated that the matter is squarely covered against the department and in favour of the petitioner by the judgment dated 31.10.2008 rendered in ITA No.489 of 2007 (Annexure P.5) and, therefore, the petitioner deserves to be granted the relief. The learned counsel for the petitioner could not successfully controvert the above legal position. In view of the above, the writ petition deserves to be allowed. And demand notice dated 26.12.2008 (Annexure P.1) and assessment order dated 26.12.2008 (Annexure P.2) are liable to be quashed. Consequently, petition succeeds and the impugned order dated 26.12.2008 (Annexure P.2) is quashed.
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2009 (7) TMI 1261 - ITAT, BANGALORE
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... ... ..... before us how the various electrical and electronic components are integrated by an indigenousness designed circuit and assembled in a box, thereby bringing out into existence a new product, the utility and function being altogether different from the inputs. 7.6. In over all consideration of the facts and circumstances of the issue and the various judicial pronouncements discussed supra which are directly on the point, we are of the considered view that the assessee company is entitled for deduction u/s 80-IB of the Act. The AO is directed to allow deduction u/s 80-IB of the Act. 7.7. Before parting with, we record our sincere and warm appreciation to the Ld. AR, Mr. Atul Alur, for having brought the equipment itself and conducted demonstration before the Bench to prove its mettle that the assessee company involves in manufacturing activity. Kudos to the Ld. A.R. 8. In the result, the assessee company's appeal is allowed. Pronounced in the open court on this 10.7.2009.
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2009 (7) TMI 1260 - SUPREME COURT
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... ... ..... ading Accent 6 / w LsdException Locked false Priority 72 SemiHidden false UnhideWhenUsed false Name Colorful List Accent 6 / w LsdException Locked false Priority 73 SemiHidden false UnhideWhenUsed false Name Colorful Grid Accent 6 / w LsdException Locked false Priority 19 SemiHidden false UnhideWhenUsed false QFormat true Name Subtle Emphasis / w LsdException Locked false Priority 21 SemiHidden false UnhideWhenUsed false QFormat true Name Intense Emphasis / w LsdException Locked false Priority 31 SemiHidden false UnhideWhenUsed false QFormat true Name Subtle Reference / w LsdException Locked false Priority 32 SemiHidden false UnhideWhenUsed false QFormat true Name Intense Reference / w LsdException Locked false Priority 33 SemiHidden false UnhideWhenUsed false QFormat true Name Book Title / w LsdException Locked false Priority 37 Name Bibliography / w LsdException Locked false Priority 39 QFormat true Name TOC Heading / /w LatentStyles /xml endif -- -- if gte mso 10 endif --
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2009 (7) TMI 1259 - DELHI HIGH COURT
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... ... ..... assessee. Accordingly, no addition could be made in the hands of the present assessee. Addition of ₹ 11,58,598 was therefore, rightly deleted by the learned CIT(A)." 4. On the addition of ₹ 38,77,174 we find that the ITAT has sustained the findings of the CIT(A) that the amounts payable to the creditors have been acknowledged by the assessee in its books and the liability pertains to the amount payable by the erstwhile firm being now taken over by the assessee, and that various creditors were paid and were being paid off by the assessee. The ITAT therefore held that so long as there is no cessation of liability by writing back the same, no addition can be made under section 41(1). This clearly pertains to the finding of facts. 5. According to us, all the findings relate to the pure question of facts and no question of law arises. We, accordingly, dismiss this appeal with costs of ₹ 5,000 to be paid in Delhi High Court Mediation and Conciliation Centre.
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2009 (7) TMI 1258 - ITAT MUMBAI
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... ... ..... therefore, this case would also not be applicable on facts. On the other hand, if we see the decision of the Hon'ble apex Court in the case of Union of India us. Dharmendra Textiles 295 ITR 244 sic-(2008) 219 CTR (SC) 617 (2008) 306 ITR 277 (SC) , it has been clearly held that levy of penalty under s. 271(1)(c) is a remedy for loss of revenue and civil liability. Hon'ble apex Court has held that wilful concealment was not an essential ingredient for attracting such civil liability. We find that assessee had made investments in the impugned assessment year on which it could not give explanations which were satisfactory regarding the nature and source. Assessee was thus not able to substantiate the explanations given by him nor able to give all the facts relating to such explanation and material to the computation of its total income. Levy of penalty was, therefore, justified and no interference is called for. 7. In the result, appeal of the assessee stands dismissed.
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2009 (7) TMI 1257 - SC ORDER
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... ... ..... Mr. Gourab Banerjee, ASG, Mr. Rajiv Nanda, Adv., Mr. Kul Bharat, Adv.,Mr. B.V. Balaram Das,Adv. ORDER Delay condoned. Dismissed.
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2009 (7) TMI 1256 - BOMBAY HIGH COURT
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... ... ..... taxable income of the appellant ? 2. Whether the ITAT ought to have held that the sum of ₹ 16,18,140/paid by the appellant to its retired partners was diverted, by overriding title, from the appellant and never formed a part of the appellant’s income? So far as question Nos.1 and 4 are concerned, they are not pressed by learned Counsel for the appellant. Learned Counsel for respondent waives service.
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2009 (7) TMI 1255 - CALCUTTA HIGH COURT
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... ... ..... as argued, on behalf of the Revenue that an order of the Commissioner (Appeals) or an order of the Tribunal, for that matter is not binding on this Court. The orders of the Tribunal/ Commissioner (Appeals) in favour of the assessees, which had assumed finality, were certainly binding on the Assessing Officer. The issues involved in this writ application are covered by judgement and order dated 10th June, 2008 of this Bench in W.P. No.1261 of 2005 "Sunil Kumar Ganguly & Ors. vs. Income Tax Officer, Ward 27(2), Kolkata & Ors." where this Court held that Section 10(10C) of the Income Tax Act, 1961 was applicable to the OERS introduced by Reserve Bank of India and set aside the orders of assessment impugned in the said writ applications. This writ application is accordingly allowed. The orders impugned are set aside and quashed. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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