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Showing 81 to 100 of 888 Records
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2009 (8) TMI 1212 - DELHI HIGH COURT
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... ... ..... iolation, if any, was of trivial in nature without serious consequences; that too was unintentional and bona fide mistake as recorded by the adjudicating authorities below; and keeping in view the status of the appellant, it would be rather in public interest that the matter is given quietus on the appellant depositing the aforesaid penalty and no other consequences should flow from there. 5. In these circumstances, we dispose of this appeal with direction to the appellant to pay the penalty and redemption fine as ordered which shall be without prejudice to the rights and contentions of the appellant. We also make it clear that this fine and penalty shall not be held against the appellant in any manner whatsoever and will also not adversely affect the appellant insofar as benefits accrued to the appellant in terms of Circular No. 58/2004-Cus., dated 21-10-2004 issued by the Department of Revenue, Ministry of Finance, Government of India, are concerned. 6. No costs.
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2009 (8) TMI 1211 - ALLAHABAD HIGH COURT
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... ... ..... inal documents, which is the source of the information particularly when the dealer denies to have any connection with such information. In the present case, the applicant has specifically contended that no 6R, 9R and stock registers have ever been issued to him and he has not moved any application for the issue of any Mandi Gate Pass. He requested for the summoning of the record and for the opportunity of cross-examination of the Mandi Samiti but the assessing authority has neither summoned the record nor provided the opportunity of cross-examination. In the absence of confrontation of the original document and providing the opportunity of cross-examination, the assessing authority failed to prove the genuineness and authenticity of the information on which reliance has been placed and, therefore, the estimate of turnover on the basis of such information cannot be held justified. In the result, the revision is allowed. The order of the Tribunal dated 29.3.2001 is set aside.
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2009 (8) TMI 1210 - SUPREME COURT
Interpretation and application of arbitration clause - Commission of offences u/s 13(1)(d)(2)(ii-iii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 ("the Act") and Section 120B of the IPC - controversy regarding the use of those stones as rubble in masonry dam - allocation of the parts of the quarries - contractors invoked the arbitration agreement - ad hoc settlement was proposed - Whether sanction for prosecution in terms of Section 197 of the CrPC was required - HELD THAT:- At the outset, however, we must place on record that construction of the dam over river Hasdeo Bango became necessary for the purpose of supply of water to the National Thermal Power Corporation. It was a World Bank project. The project was required to be completed within a time frame. Stones required to be used for the construction of the dam, as of necessity, were required to be of sufficient strength. The opinion of the Indian Institute of Technology, referred to by Mr. Tulsi, is not on record. Correspondences as also the opinion of the Central Water Commission, Government of India, however, point out that stones of requisite strength were not available at Therma Pahar Quarry. The quantum of stone required was eight lakh cubic meters and only one lakh cubic metres was available thereat. The balance seven lakh cubic meters of stone was, thus, required to be obtained from the quarries situated at villages villages Katghora, Hunkra and Maheshpur.
Stone is a minor mineral within the meaning of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Minor Mineral Concession Rules framed by the State. Lease and/ or licence for extraction thereof is to be granted by the Collector. Although the Mines Department of the State intended to grant `Quarry lease' in favour of others having regard to the requirements of the State, the said quarries were reserved, subject to certain conditions.
The respondent Nos. 8 to 10, in view of the provisions of the Mines and Mineral (Regulation and Development) Act, 1957 and the Madhya Pradesh Minor Mineral Concession Rules could not have on their own undertaken mining operation for the purpose of extracting the said minor mineral. They could have done so only on a licence granted in their favour by the Collector/State. However, as the hillocks of the villages in question were reserved for departmental use, only by reason thereof the contractors could carry on mining operation thereat and not otherwise. It was, therefore, a conscious decision on the part of the competent authorities of the State.
The intra-departmental and inter-departmental correspondences and notesheets to which we have adverted to heretobefore clearly go to show that the authorities incharge of construction of the dam were aware of the difficulties which were being faced by the contractors. Their apprehension was that in the event the contractors were not permitted to mine stones from Katghora Quarry and other Quarries, they may leave the job as a result whereof the entire project might come to a stand-still.
We would proceed on the basis that two divergent opinions on the construction of the contract in the light of the stand taken by the World Bank as also the earlier decision taken by the State was possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the project made recommendations in favour of the contractors stating that if not in law but in equity they were entitled to the additional amount.
From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State. Ex facie, there is no material to show that a conspiracy had been hatched by the respondents.
Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any public interest.
It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkarni who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made.
In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused.
Indisputably, they were required to do so. Be he an Executive Engineer, Superintending Engineer, Chief Engineer, Engineer-in-Chief, Secretary or Deputy Secretary, matters were placed before them by their subordinate officers. They were required to take action thereupon. They were required to apply their own mind. A decision on their part was required to be taken so as to enable them to oversee supervision and completion of a government project. The Minister having regard to the provisions of the Rules of Executive Business was required to take a decision for and on behalf of the State.
Some of the respondents, were required to render their individual opinion required by their superiors. They were members of the Committee constituted by the authorities, viz., the Minister or the Secretary. At that stage, it was not possible for them to refuse to be a Member of the Committee and/ or not to render any opinion at all when they were asked to perform their duties. They were required to do the same and, thus, there cannot be any doubt whatsoever that each one of the respondent Nos. 1 to 7 was performing his official duties.
Whether an order of sanction was required to be obtained - There exists a distinction between a sanction for prosecution u/s 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the CrPC requires sanction both for those who were or are public servants. For the purpose of attracting the provisions of Section 197 of the CrPC, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the CrPC. It was so held by this Court in Sankaran Moitra v. Sadhna Das and Another [2006 (3) TMI 748 - SUPREME COURT].
In State of Karantaka v. Ameerjan [2007 (9) TMI 628 - SUPREME COURT], it was held that an order of sanction is required to be passed on due application of mind. Thus, in this case, sanction for prosecution in terms of Section 197 of the CrPC was required to be obtained.
For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly.
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2009 (8) TMI 1209 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (8) TMI 1208 - SC ORDER
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... ... ..... is case the petitioner was required to make pre-deposit. We see no reasons to interfere. The Special Leave Petition is dismissed. However, time to make pre-deposit is extended by ten weeks.
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2009 (8) TMI 1207 - MADRAS HIGH COURT
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... ... ..... s in the agreement creating the charge and having kept the creditors under darkness as to the entire proceedings of the scheme despite their request for the consortium meeting and also having not placed before the Court all material facts which would enable the Court to or not to approve the scheme and all the more when it is apparently clear that the scheme of amalgamation if approved would certainly affect the public interest, naturally the secured creditors should have been heard before approval. However, taking into consideration the facts and circumstances, the learned Single Judge has modified the original order to the effect that the approval will be valid and effective subject to the approval by the secured creditors. This Court is unable to see any reason to disturb the said finding of the learned Single Judge. 25.In the result, all these original side appeals are dismissed confirming the order of the learned Single Judge and leaving the parties to bear their costs.
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2009 (8) TMI 1206 - DELHI HIGH COURT
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... ... ..... rect value of the stock and not the value of the closing stock declared in the books, in our opinion, in view of the above discussed decisions supra relied upon by the Ld. AR for the assessee, merely because the assessee has inflated the hypothecated stocks given to the bank for the purpose of availing of higher credit limit would not in itself make a ground with the AO for making an addition on account of the difference between the closing stock declared to the bank and closing stock shown in the books of accounts of the assessee. Accordingly, we uphold the well-reasoned and well-discussed order of CIT(A) deleting the impugned addition made by the AO. Consequently, the ground of appeal taken by the Revenue is rejected.? Following the judgments of various Courts including the judgment of this Court, namely, CIT Vs. Prem Singh and Co. 163 ITR 434, the Tribunal has decided the issue in favour of the assessee. We find no question of law arises in these circumstances. Dismissed.
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2009 (8) TMI 1205 - ITAT DELHI
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... ... ..... e heard the rival contentions and perused the material available on record. Assessee has challenged the CIT(A)’s action in treating the papers filed before him as new evidence from the written submissions filed by assessee before CIT(A), which are placed on paper book No.25 onwards, which are not disputed by learned DR. The same speaks of filling of relevant papers about copies of confirmations and returns before AO. Since the assessee’s director identity is established, transactions are not denied and he is assessed to tax, the initial burden passed on assessee in this behalf stands discharged. In view thereof, we delete the additions made on the assessee. This appeal of the assessee is allowed. 12. Since we have deleted the quantum additions, the penalty imposed u/s 271(1)(c ) on this quantum, which is agitated by assessee in appeal No.799/Del/09 is also deleted. 13. This appeal of the assessee is allowed. Order pronounced in the open court on 6th August, 2009.
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2009 (8) TMI 1204 - ITAT DELHI
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... ... ..... on as a sum of ₹ 10 lacs made by the Assessing Officer and as the same was considered by the learned CIT (Appeals) at ₹ 5 lacs, it has been specifically pointed out by the learned CIT (Appeals) that the same was due to typographical error and during the course of assessment proceedings, such a mistake was pointed out by the assessee in response to details of share application money called for by the Assessing Officer and Assessing Officer ignored that explanation of the assessee. If such is a position then we find no infirmity in the order of CIT (Appeals) vide which after going through the balance-sheet of both the years, he has found that share application money received by the assessee during the year was only ₹ 5 lacs. Therefore, on this account also, there is no infirmity in the order of CIT (Appeals) which is being confirmed. 9. In the result, the appeal filed by the revenue is dismissed. Order pronounced in open court on the 28th day of August, 2009.
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2009 (8) TMI 1203 - ITAT DELHI
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... ... ..... round no. 5. We do not appreciate the manner in which ld. CIT(A) has deviated from the earlier findings given by appellate authority in assessee’s own case. The issue is same. Deviating from earlier years is not in the interest of justice as per well-established principles of law. Decision of higher appellate authority is binding on CIT(A) as well. Ld. CIT(A) has not made out any case to justify himself for deviating with the earlier decision in the case of assessee by his predecessor as well as by this Tribunal. We have already reproduced the relevant portion of order of ITAT vide which such issue was decided in favour of assessee. We have no reason to differ with the such findings of ITAT in assessee’s own case. Therefore, there is no justification in the order of CIT(A) vide which the impugned enhancement has been made. The same is deleted. 11. In the result, the appeal filed by the assessee is allowed. 12. The order pronounced in the open court on 07.08.2009.
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2009 (8) TMI 1202 - DELHI HIGH COURT
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... ... ..... dinarily a quasi-judicial authority can not prefer an appeal being aggrieved by and dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board. 16. The respondents also rely upon earlier judgment of the Appellate Tribunal where it was held that a revision petition filed by a Deputy Legal Advisor was justified. But in view of the judgment of the Honble Supreme Court judgment as quoted above, the view earlier taken by the Tribunal was also illegal and has been correctly reviewed in the subsequent order. 17. In view of the aforesaid, the appeal is allowed. The impugned order is set aside with a costs of ₹ 50,000/-.
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2009 (8) TMI 1201 - SC ORDER
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... ... ..... , JJ. ORDER Appeal dismissed.
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2009 (8) TMI 1200 - ALLAHABAD HIGH COURT
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... ... ..... Limited, Delhi had disclosed the same in its return. The Commissioner (Appeals) had set aside the confiscation and also deleted the penalty, which order has been upheld by the Tribunal. Heard learned counsel for the parties. Sri Raghuvanshi, learned counsel for the appellant has stated that the respondent had retracted from his statement after a long delay of about two months and therefore could not have been believed. The submission is wholly misconceived. The respondent was in judicial custody upto 13-7-1998 and immediately on his release on 14-7-1998 he had retracted from his statement by sending a telegram. Moreover on investigation by the Commissioner of Customs the gold in question have been found to have been purchased by respondent from Delhi party. Thus the confiscation was wholly illegal. The order of the Tribunal does not give rise to any substantial question of law as it is based on appreciation of material evidence on record. The appeal is accordingly dismissed.
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2009 (8) TMI 1199 - ITAT MUMBAI
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... ... ..... 234B of the Act by relying upon the decision in the case of Motorola Inc. rendered by Hon'ble Special Bench in ITAT, "A" Bench, Delhi, reported in (2005) 95 ITD 269." 10. It has been held (page 190) "We are in respectful agreement with the view taken in the case of Commissioner of Income Tax and Anr. vs Sedco Forex International Drilling Co Ltd. (2003) 264 ITR 320 by the Uttaranchal High Court. We are clearly of the opinion that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the payee-assessee." In the absence of any distinguishing feature brought on record by the revenue we respectfully following the judgment of the Hon'ble Jurisdictional High Court supra, uphold the order passed by the ld CIT(A) on this account also and accordingly the grounds taken by the revenue are rejected. 11. In the result, the revenue's appeal stands dismissed. Order pronounced in the open court on 21.8.2009.
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2009 (8) TMI 1198 - BOMBAY HIGH COURT
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... ... ..... lished and the amounts received from the said purchaser is accounted, in the absence of any material to the contrary it is difficult to hold that the transactions were not genuine. Even if the assessees had paid commission to the middleman for effecting the sale without examining the middleman and without adducing any evidence to the contrary it cannot be said that the transactions are not genuine. Moreover, the genuineness of the sales in the hands of the purchasers have not been doubted by the revenue. 7. In these circumstances, we are clearly of the opinion that the Tribunal was justified in holding that the decision in the case of Uttamchand Jain (supra) is applicable to all these cases. 8. As noted earlier, the decision of the Tribunal in the case of Uttamchand Jain (supra) has been affirmed by this Court on 2-7-2009. 9. For the reasons stated in the judgment of this Court in the case of Uttamchand Jain (supra), all these appeals are dismissed with no order as to costs.
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2009 (8) TMI 1197 - ITAT AHMEDABAD
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... ... ..... that previous year. If any liability, though relating to the earlier year, depends upon making a demand and its acceptance by the assessee and such liability has been actually claimed and paid in the later previous years cannot be disallowed as deduction merely on the basis the accounts are maintained on mercantile basis and that it related to a transaction of the previous year.” Therefore, we are of the considered view that the learned CIT(A) is perfectly justified in allowing the expenses in the Assessment Year under consideration since undisputedly the expenses in question were crystalised, finalized, determined and accounted during the previous year relevant to the Assessment Year under consideration. In view of the above, we dismiss ground No.2 of the Revenue. 10. Grounds No.3 and 4 are of general nature and therefore, need no specific adjudication. 11. In the result, the appeal of the Revenue is dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt. 07.08.2009
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2009 (8) TMI 1196 - ITAT AHMEDABAD
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... ... ..... tion of addition made by the AO u/s.68 of the Act on account of unexplained cash credit by treating the exports made to Russia as bogus and we have treated the same as sales made and recorded in the books of account of the assessee and the Assessing officer has himself accepted such turnover for working out deduction u/s.80HHC of the Act. In such circumstances, the penalty levied u/s.271(1)© of the Act has rightly been deleted by the CIT(A) and we confirm the same. These appeals of the Revenue are dismissed. 11. The COs No151-153/Ahd/2005 of the assessee are not pressed by the Ld. counsel for the assessee at the time of hearing, accordingly, the same are dismissed as not pressed. 12. In the result, Revenue’s appeal in ITA No.1684/Ahd/2004 is allowed partly for statistical purposes and Revenue’s appeals in ITA No.790- 795/Ahd/2005 are dismissed. Assessee’s COs No.151-153/Ahd/2005 are dismissed as not pressed. Order pronounced in Open Court on 07/08/2009
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2009 (8) TMI 1195 - ITAT BANGALORE
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... ... ..... he ITAT Bangalore Bench, in case of ACIT Vs M/s Infosys Technologies Ltd., Bangalore in ITA Nos.653 & 969(B)/2006 dated 17-10-2007 has also taken a similar view. Facts being same, so following the same reasoning, we are not inclined to interfere with the findings of CIT(A) who has directed the AO to exclude expenditure incurred by the assessee in foreign currency on travel from the total turnover as well. The same is upheld. This view is fortified by the decision of Chennai Special Bench in ITA Nos.691 & 1953(Mds.) 2007 in the case of ITO Vs SAK SOFT Ld., Chennai dated 06-03-2009”. Facts being same, so following the same reasoning the AO is directed to exclude foreign travel expenses incurred for technical services outside India from the total turnover as well for computing the deduction u/s 10A of the IT Act, 1961. The AO is directed accordingly. 3. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on the date of hearing.
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2009 (8) TMI 1194 - KERALA HIGH COURT
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... ... ..... Agencies Vs. CTO (2008) 14 VST 293 (Ker.). 4. Considering the facts and circumstances, this Court does not require any second thought to hold that Ext.P5 order passed by the first respondent, as a 'Composite Order' is not correct or sustainable. More so, in view of the fact that the penalty has been simply added as a matter of course. It has been made clear in binding judicial precedents that penalty cannot be imposed as a matter of course and that a specific finding has to be rendered, before imposing the same, as to the conscious act stated as pursued by the assessee, involving the violation. 5. In the above facts and circumstances, Ext.P5 order is set aside and the first respondent is directed to finalize the proceedings afresh; only after proper notice to the petitioner in accordance with law. As such, all further coercive steps stated as being pursued against petitioner, shall be kept in abeyance for the time being. The Writ Petition is disposed of accordingly.
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2009 (8) TMI 1193 - ITAT AHMEDABAD
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... ... ..... d Commissioner of Income Tax(Appeals) deleted the addition by observing to quote as under “In view of the submissions made, the addition is directed to be deleted.” 8. We have heard the rival submissions and perused the orders of the lower authorities and the materials available on record. Both the parties submitted at the time of hearing that the Learned Commissioner of Income Tax(Appeals) has not passed a reasoned order while deciding the above grounds of appeal and therefore the matter should be remanded back to his file to decide the matter afresh by passing a reasoned order. Therefore, we set aside the order of the Learned Commissioner of Income Tax(Appeals) and remand the matter back to his file to decide the issues afresh by passing a well reasoned and speaking order. 9. In the result, the appeal of the revenue is allowed for statistical purposes. Order pronounced in the Court at the close of the hearing in the presence of the parties on 12th August, 2009.
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