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2010 (1) TMI 1209 - SUPREME COURT
Suit under section 92 of the Code of Civil Procedure - jurisdiction of courts with reference to suits - Whether a District Court in the State of Tamil Nadu, does not have jurisdiction to try a suit u/s 92 of the Code? - State Government Notification No. GOM No.727 - The respondents instituted a suit on the file of the Principal District Judge, Cuddalore against the appellants u/s 92 of Code, seeking a direction to the second appellant to repay all the amounts spent by him after 20.6.2005 contrary to the terms of the supplementary deed of Trust, and also to convene the Trust meeting for approval of the income and expenditure and other consequential reliefs.
HELD THAT:- In view of the express provisions of section 92 specifying the courts which will have jurisdiction to entertain suits under that section, neither the provisions of sections 15 to 20 of the Code nor the provisions of section 12 of the Civil Courts Act will apply to such suits. Section 92 is a self contained provision, and conferment of jurisdiction in regard to suits under that section does not depend upon the value of the subject matter of the suit. Therefore, insofar as the suits u/s 92 are concerned, the District Courts and Sub- ordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits. We find that the learned District Judge had held that he had jurisdiction because the value of the subject matter was ₹ 10 lakhs, apparently keeping in view, section 12 of the Civil Courts Act. We make it clear that the pecuniary limits mentioned in section 12 of the Civil Courts Act, do not apply to suits u/s 92 of the Code.
In fact, if section 12 of the Civil Courts Act is applied to decide the jurisdiction of courts with reference to suits u/s 92 of the Code, it will then lead to the following anomalous position: The District Court will have jurisdiction if the value of the subject matter exceeds ₹ 5 lakhs. The Sub-ordinate Court will have jurisdiction where the value of the subject matter exceeds ₹ 1 lakh but does not exceed to ₹ 5 lakhs. That would mean that a suit u/s 92 of the Code, where the subject matter does not exceeds ₹ 1 lakh, cannot be filed in any court as section 92 confers jurisdiction only on District Court and Sub-ordinate Courts. This obviously was not intended. Be that as it may.
We do not therefore approve the decision of the learned Single Judge of the Madras High Court in PS Subramanian which ignores the earlier decisions of that court and decisions of other High Courts which have consistently taken the view that where jurisdiction is also conferred on any other court by the state government by a notification (u/s 92 of the Code or under any similar provision), then that court and the District Court will have concurrent jurisdiction.
Appeal is dismissed. The learned District Judge will proceed to decide the suit expeditiously.
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2010 (1) TMI 1208 - ITAT AHMEDABAD
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... ... ..... e decision in the case of Rogini Garment(supra). The above facts, therefore, proved on record that the assessee offered explanation before the Assessing Officer and also proved on record that explanation of the assessee was bona fide in making a claim u/s.80-IB of the I.T. Act, 1961 on the gross total income as per prevalent decision available on the issue. Therefore, it could not be held that assessee has failed to offer any explanation at the penalty stage and also failed to prove that the claim of the assessee was bona fide. Considering the facts and circumstances noted above in the light of the decisions referred to above, we are of the view that these are not fit cases for levy of penalty u/s.271(1)(c) of the I.T. Act, 1961. We accordingly set aside the orders of the authorities below and cancelled the penalty u/s.271(1)(c) of the I.T. Act, 1961. 12. In the result, all the appeals of the Assessee are allowed. Order signed, dated and pronounced in the Court on 22/01/2010
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2010 (1) TMI 1207 - ITAT AHMEDABAD
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... ... ..... mstances of the case and in the light of aforesaid decisions, we have no alternative but to uphold the finings of ld. CIT(A). Therefore. ground nos 6 & 7 in the appeal are dismissed. As regards alternate plea regarding telescoping the addition against intangible trading addition, there is no material before us nor the assessee established nexus between the two additions. Unless there was a connection between the gifts and the trading addition, it would be difficult to accord set off of the two figures as held in the decisions in the case of CIT v. Devi Prasad Viswanath Prasad 1969 72 ITR 194(SC) and CIT Vs. Jhaverbhai Biharilal & Co.160 ITR 634(Patna). Therefore, this plea of the assessee is also not tenable. 15. No additional ground having been raised in terms of the residuary ground no. 8 in the appeal of the assessee, accordingly, the said ground is also dismissed. 16. In the result, appeal of the Revenue is dismissed while that of the assessee is partly allowed..
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2010 (1) TMI 1206 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... f duty which has been patently contrary to 1st proviso to Section 11 AC of the Act. The Ld. Counsel supported his argument with the judgement of this Hon'ble Court in the case of CCE vs. J.R. Fabrics (P) Ltd., CEA No.05/2009 The questions of law raised by the appellant are identical as raised in CEA No.05/2009, J .R. Fabrics (P) Ltd . (supra). A Division Bench of this Court in CEA No.05/2009 vide its Order dated 03.04.2009 agreeing with the view taken by Delhi High Court in Malbro Appliances (P) Ltd. (supra) and KP Pouches (P) Ltd. vs. UOI, 2008 (228) ELT 31, has upheld the Order of the Tribunal and dismissed the Appeal of the Revenue. The counsel of the appellant has failed to show any contrary view of this Court or the Hon'ble Supreme Court. In view of the above, we hold that the present case is squarely covered by the decisions in M/s J.R. Fabrics (P) Ltd. (supra) and M/s Malbro Appliances (P) Ltd. (supra). The appeal filed by the Revenue is accordingly dismissed.
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2010 (1) TMI 1205 - ALLAHABAD HIGH COURT
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... ... ..... r expiration of the time prescribed or extended by the assessing authority, for submission of annual return." We are of the view that Section 25(2) of the Act completely prohibits for passing of any Provisional Assessment Order after furnishing of the annual return. It is immaterial that the return has been filed after the issue of the notice. Once the return was filed, the Assessing Authority was ceased with the power to pass any Provisional Assessment order. Since in the present case, the return was admittedly filed on 7.8.2009, the Assessing Authority had no power to pass the Provisional Assessment Order on 1.9.2009. In the result, the writ petition succeeds and is allowed. The Provisional Assessment Order dated 1.9.2009 for Ist, IInd, IIIrd and IVth quarters anneuxre-1 to the writ petition are quashed. However, it is open to the Assessing Authority concerned to pass the final assessment order on the basis of the return filed by the petitioner in accordance with law.
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2010 (1) TMI 1204 - SUPREME COURT
Whether an application for grant of FL-3 Licence should be considered with reference to the Rules as they existed when the application was made or in accordance with the Rules in force on the date of consideration - HELD THAT:- Considering the facts that the State has exclusive privilege of manufacture and sale of liquor, and no citizen has a fundamental right to carry on trade or business in liquor, the applicant did not have a vested right to get a licence. Where there is no vested right, the application for licence requires verification, inspection and processing. In such circumstances it has to be held that the consideration of application of FL-3 licence should be only with reference to the rules/law prevailing or in force on the date of consideration of the application by the excise authorities, with reference to the law and not as on the date of application. Consequently the direction by the High Court that the application for licence should be considered with reference to the Rules as they existed on the date of application cannot be sustained.
Whether the amendment to Rule 13(3) of Foreign Liquor Rules substituting the last proviso is valid - HELD THAT:- Rule 13(3) provides for grant of licences to sell foreign liquor in Hotels (Restaurants). The substitution of the last proviso to Rule 13(3) by the notification dated 20.2.2002 provided that no new licences under the said Rule shall be issued. The proviso does not nullify the licences already granted. Nor does it interfere with renewal of the existing licences. It only prohibits grant of further licences. The issue of such licences was to promote tourism in the State. The promotion of tourism should be balanced with the general public interest. If on account of the fact that sufficient licences had already been granted or in public interest, the State takes a policy decision not to grant further licences, it cannot be said to defeat the Rules. It merely gives effect to the policy of the State not to grant fresh licences until further orders. If the State on a periodical re-assessment of policy changed the policy, it may amend the Rules by adding, modifying or omitting any rule, to give effect to the policy. If the policy is not open to challenge, the amendments to implement the policy are also not open to challenge. When the amendment was made on 20.2.2002, the object of the newly added proviso was to stop the grant of fresh licences until a policy was finalized. Ultimately the proviso has to be construed upon its terms. Merely because it suspends or stops further operation of the main provision, the proviso does not become invalid. The challenge to the validity of the proviso is therefore rejected.
In view of the above, the appeals filed by the State are allowed in part and the appeals filed by the applicants for licences are dismissed, subject to the following clarifications.
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2010 (1) TMI 1203 - BOMBAY HIGH COURT
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... ... ..... #8377; 1,09,23,931/- in this Court and the said amount has been invested in the Fixed Deposits and renewed from time to time. 3. Having heard the parties for sometime and after having gone through the complex issues involved and looking to the consensus between the parties, it would be appropriate that the order of CESTAT impugned in W.P.No. 1802/2002 as also the refund order -cum- demand notice dated 6th March, 2002 impugned in W.P.No.1443/2002 are set aside. The CESTAT is directed to denovo hear and adjudicate upon the issues arising from the aforesaid orders in accordance with law by passing speaking order within four months from the date of receipt of this order. All rival contentions are kept open. 4. The amount deposited in this Court shall continue to remain in deposit subject to the final outcome of the proceedings. 5. Both writ petitions are disposed of in terms of this order with no order as to costs. 6. All the concerned to act on authenticated copy of this order.
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2010 (1) TMI 1202 - SC ORDER
Whom can be given option to redeem the goods – the decision in the case of UNION OF INDIA Versus MOHAMMED AIJAJ AHMED [2009 (7) TMI 308 - BOMBAY HIGH COURT] contested where it was held that The question of the Tribunal exercising the jurisdiction u/s. 125 of the Customs Act and remit the matter to give an option to the respondent herein to redeem the goods was clearly without jurisdiction - Held that: - the earlier decision is upheld - appeal dismissed - decided against appellant.
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2010 (1) TMI 1201 - ITAT DELHI
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... ... ..... can be imposed. In the present appeals also, two views were clearly possible which were supported by orders of the ITAT as well as decisions of Hon’ble High Court. In such situation, it cannot be said that assessees have concealed income or furnished inaccurate particulars. There is no allegation by the Assessing Officer that assessees have not disclosed the complete particulars. The only allegation is that assessees have claimed deduction on DEPB and duty draw back under Sec.80-IB which is not admissible to them. “ Since facts of the case are identical to the facts of the case of Oriental Rug Company (supra), penalty u/s 271(1)(c ) cannot be imposed in respect of disallowance made u/s 80IB on account of DEPB and duty draw back. Accordingly, we do not find any infirmity in the order passed by the ld. CIT(A) deleting the addition. 8. In the result, appeal filed by the Revenue of all the years, are dismissed. Order pronounced in the open Court on 29th January,2010.
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2010 (1) TMI 1200 - BOMBAY HIGH COURT
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... ... ..... ft, was to be decided by the Income-tax Officer. Therefore, in my view, once a decree is passed, it is a judgment and order of the court which culminates into final decree being passed which has to be discharged only on payment of the amount due under the said decree. The judgment debtor, therefore, cannot, in my view, deduct tax at source since it is an order and direction of the court and, as such, would not be liable for penal consequences for non-deduction of the tax due. Tax, if payable, can be decided by the Income-tax Officer after the amount is paid to the decree holder. Defendants, therefore, in my view, are not entitled to withhold the payment on the pretext that it has to be deducted as tax at source. Defendants may, therefore, pay the said amount to the plaintiff and for that purpose they would not be liable for non-deduction of tax at source as that issue has to be decided by the Income-tax authorities and if tax is payable the same may be paid by the plaintiff.
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2010 (1) TMI 1199 - ITAT MUMBAI
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... ... ..... 77; 20,87,450/- without appreciating the fact that there was no proof that debts have become bad. 3. The appellant prays that the Order of the CIT(A) on the above grounds be set aside and that of the A.O. be restored. 4. The appellant craves to amend or alter any ground or add a new ground which may be necessary.” 2. We have heard the learned D.R. as well as the learned Counsel appearing on behalf of the assessee in this regard and carefully perused the record. 3. In our considered opinion learned CIT(A) has given cogent reasons in coming to the conclusion that the addition of ₹ 76.33 lakhs made by the Assessing Officer as well as the disallowance of bad debts is not in accordance with law, in the peculiar circumstances of the case. Since, we are in agreement with the reasons given by the learned CIT(A), we uphold the Order of the learned CIT(A) and dismiss the appeal filed by the Revenue. Order pronounced in the open Court, on this the 27th day of January, 2010.
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2010 (1) TMI 1198 - ITAT AHMEDABAD
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... ... ..... s of customers initially the customer’s accounts were debited with full sale value of cars and with the help of ledger a/c it was shown that the customers though the full sale value of the cars were debited in the customer’s a/c, the concerned customer paid lesser amount by cheques/draft and the balance amount in the customer’s accounts were transferred to the commission expense/discount a/c. The assessee before the lower authorities have produced the ledger a/c. and the copy of sale bills along with books of account and even now they have filed these details. The fact is that the discount and commission, i.e. short payment is made by the customers and this can be easily verified from the books of account. Accordingly, CIT(A) has rightly deleted the addition as narrated above and we confirm the same. This issue of the Revenue’s appeal is dismissed. 6. In the result, Revenue’s appeal is dismissed. Order pronounced on this 18th day of January 2010
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2010 (1) TMI 1197 - ITAT MUMBAI
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... ... ..... he assessee challenged 263 order before the Tribunal. Vide order dated 28.8.2007, the Tribunal in ITA No.2877/Mum/2006 quashed the order passed by the learned CIT. The learned CIT(A), through the impugned order, took into consideration all these facts and set aside the assessment thereby allowing the assessee’s appeal. o p /o p 3. After considering the rival submissions and perusing the relevant material on record it is found as an undisputed position that the instant assessment order was passed pursuant to the direction given by the learned CIT vide his order u/s.263. o p /o p Since the very foundation of the present assessment proceedings, being the passing of revisional order u/s.263, does not survive, there is no question of continuing with the resultant proceedings. We, therefore, uphold the impugned order quashing the present assessment order. o p /o p 4. In the result, the appeal is dismissed. o p /o p Order pronounced on this 11th day of January, 2010. o p /o p
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2010 (1) TMI 1196 - KERALA HIGH COURT
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... ... ..... these items. However, sale consideration for the purchase of goodwill and for the licence fee is also assessable as undisclosed income under s. 158BB. o p /o p 7. We, therefore, dispose of the appeals by upholding the assessments confirmed by the Tribunal in principle, but by remanding the matter to the AO for recomputation of capital gains after granting eligible deduction to the assessee and after giving an opportunity of hearing to them. Even though counsel for the appellants contended that assessment should be made as a regular assessment and not as a block assessment under s. 158BC r/w s. 158BD, we are unable to accept this contention because assessment in the case of AOP is permissible under s. 158BD because in the course of search in the premises of M/s Puther Drugs and Sri Anto Thomas, the Department got enough materials based on which assessment was made at the hands of the AOP. Consequently, rate of tax applied namely, 60 per cent, is the appropriate one. o p /o p
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2010 (1) TMI 1195 - ITAT MUMBAI
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... ... ..... was allowed to the assessee for AY 1999-00 by completing the assessment u/s 143(3) and the assessee has not reduced the amount of deprecation allowed for AY 1999-00. Accordingly, the assessment was reopened in view of sec. 147/148. Since the Tribunal has confirmed thrusting upon the deprecation on the assessee for AY 1999-00; therefore, the amount of depreciation allowed for AY 1999-00 has to be taken into consideration for the purpose of determining the WDV so that depreciation of subsequent year can be determined accordingly. Since the effect of the order of the Tribunal passed for AY 1999-00 has to be given for the year under consideration also on account of determination of correct value of depreciation; therefore, in our considered view, the issue in respect to reopening assessment has become academic in nature and therefore, need not be adjudicated upon. 7. In the result, the appeal of the department as well as the assessee are dismissed. Order pronounced on 20.1.2010
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2010 (1) TMI 1194 - ITAT AHMEDABAD
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... ... ..... come Tax Act, 1961, the assessee could not deduct TDS from the payments made to labour, transport and carting expenses. The bonafide of the assessee is also proved by the fact that the concerned Chartered Accountant, who audited the accounts of the assessee under section 44AB has not pointed out non-deduction of TDS under section 194C from payments made to labour, transport an carting expenses. In these circumstances, the explanation of the assessee is bonafide. Penalty under section 271(1)(c) is not automatic. We are, therefore, of the view that the Learned Commissioner of Income Tax(Appeals) is legally and factually correct in cancelling the penalty of ₹ 7,42,707/- levied by the A.O. under section 271(1)(c) in respect of disallowance of ₹ 22,06,498/- made under section 40(a)(ia) of the Income Tax Act, 1961. We, therefore, decline to interfere. 6. In the result, the appeal of the Revenue is dismissed. This order is pronounced in Open Court on 22nd January, 2010.
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2010 (1) TMI 1192 - ITAT AHMEDABAD
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... ... ..... ndings of the ld. CIT(A) and restore the orders of AO, excluding 90 of the amount on account of Kasar , damages for cancellation of orders, credit balance written back and bad debt recovered while computing profits of the business for the purpose of deduction u/s 80HHC of the Act. Therefore, no.2 in the appeal of the Revenue for the AY 2001-2002 is allowed. 37. Ground nos. 2 & 3 in the appeals of the Revenue for the AY 2000-01 & ground nos. 3 & 4 in the appeal for the AY 2001-02 ,being general in nature, do not require any separate adjudication and are ,therefore, dismissed. 38. In the result, appeal of the assessee for the AY 2000-01 is partly allowed for statistical purposes while both the appeals of the Revenue for the AY 2000-01 are dismissed. The appeal of the assessee for the AY 2001-02 is partly allowed while that of the Revenue is allowed and the appeal of the assessee for the AY 2003-04 is allowed. Order pronounced in the open Court on 22nd January,2010.
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2010 (1) TMI 1191 - ITAT CHANDIGARH
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... ... ..... #39;ble jurisdictional High Court in CIT vs. Kanda Rice Mills (1990) 85 CTR (P&H) 5 (1989) 178 ITR 446(P&H) wherein it has been held that, "the CIT had to come to a firm decision that the order of the ITO was erroneous and was prejudicial to the interest of the Revenue". In the facts of the case before the jurisdictional High Court, the CIT did not furnish his opinion and merely observed that these were the points which deserved consideration and after setting aside the order of the ITO, issued a direction for making assessment afresh. 21. In our considered opinion, in line with our order in the paras hereinabove, we are of the view that in the facts and circumstances of the case, the CIT has erred in invoking the jurisdiction and passing the order under s. 263 of the IT Act. Accordingly, we set aside the order passed under s. 263 of the Act. The grounds of appeal raised by the assessee are thus allowed. 22. In the result, appeal of the assessee is allowed.
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2010 (1) TMI 1190 - ITAT AHMEDABAD
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... ... ..... provisions of section 44AE of the Act. 8. We also find that the assessee is in he retail trade of construction material like sand- and kapatchi etc. No dispute is between the two parties that the turnover in said business was ₹ 13,00,125/-. The same being less than 40 lakhs, the income from the said business an be estimated as per he provisions of section 44AF of the Act. We, therefore, direct the AO to compute the income from trading business as per the provisions section 44AF of the Act. 9. Since, in respect of both the business the statutory provisions for computing the presumptive income are applicable and since the income is required to be estimated no better estimate can be found that that prescribed in the statutory proviso itself. With the above directions, the AO is directed to re-compute the income. 10.For statistical purpose both the appeals are treated as partly allowed. This is so pronounced in the open court at the time of hearing itself i.e. on 4.1.2010.
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2010 (1) TMI 1189 - ITAT LUCKNOW
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... ... ..... of the procedural requirements. The Tribunal is fully justified in observing that the manner of application of funds and as to whether the applicant-assessee can claim the benefit of exemption in terms of ss. 11 and 12 is a question which has to be examined by the AO at the stage when it is urged and not by the CIT when such question is not before the CIT. It is hereby clarified and emphasized that while registration in accordance with the provisions of s. 12A of the Act is a condition precedent for claiming the benefits under ss. 11 and 12 of the Act a registration as per s. 12A by itself will not automatically confer the benefits of ss. 11 and 12 on a trust, but the trust will get the benefit only on complying with the requirements of ss. 11 and 12 of the Act, which compliance can be examined by the assessing authority, while processing the return filed by the trust. Therefore, this appeal has to be dismissed." 11. In the result, the assessee's appeal is allowed.
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