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2010 (7) TMI 1132 - MADRAS HIGH COURT
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... ... ..... reported in 2008 (306) ITR 0403 Dr. C.M.K. Reddy v. Settlement Commission (IT/WT) under Section 245C of the Income-tax Act, 1961. 18. Applying the above cited judgments to the facts of this case and as the petitioner is not willing to pay the amount arrived at by the Settlement Commission and disputing the same even though he has not made full and true disclosure in the settlement application, the first respondent cannot be directed by this Court to accept the settlement or go into the claim, which is in dispute. In the impugned order itself it is stated that the Revenue should take up the adjudication as if no application has been filed for settlement. There is no perversity in the said order warranting interference by this Court under Article 226 of the Constitution of India. 19. The writ petition is dismissed. The Revenue is directed to finalise the adjudication proceedings within a period of three months from the date of receipt of copy of this order. No costs.
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2010 (7) TMI 1131 - SUPREME COURT
National Commission for Women (the ‘Commission’) - challenging the order of the HC - acquittal u/s 306 IPC - maintaining conviction u/s 376 IPC - quantum of sentence - In Present case, learned ADJ relying primarily on the dying declaration which was the suicide note, convicted the accused u/s 306 and to imprisonment for life u/s 376 both the sentences to run concurrently. An appeal was thereafter taken by the accused to the HC. The HC held that a case u/s 306 was not made out and the accused was entitled to acquittal under that provision but on the question of the offence u/s 376. An order reducing the term of imprisonment for life to that already undergone was, accordingly, made. The present Special Leave Petition has been filed by the the Commission and the only plea raised is that the reasons given by the High Court for reducing the sentence awarded u/s 376 were not acceptable.
HELD THAT:- In the present matter, we find that neither the State which is the complainant nor the heirs of the deceased have chosen to file a petition in the HC. As this responsibility has been taken up by the Commission at its own volition this is clearly not permissible following the decision in case of P.S.R. Sadhanantham v. Arunachalm And Another [1980 (2) TMI 271 - SUPREME COURT]. We are unable to comprehend as to how the Commission was entitled to maintain an appeal in the Supreme Court against the order of the High Court. An appeal is a creature of a Statute and cannot lie under any inherent power. This Court does undoubtedly grant leave to the appeal under the discretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organization pro-bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are ,therefore, of the opinion that the Special Leave Petition itself was not maintainable.
We are of the opinion that the discretion exercised by a Court, particularly a superior court, should not be lightly interfered with. We find that several factors had been taken into account while imposing a lesser sentence and it would be improper for us to interfere in the High Court’s discretion on the quantum of sentence except in extraordinary circumstances. We do not see any such circumstance. We, accordingly, dismiss the Special Leave Petition as not maintainable. The permission to file the Special Leave Petition granted vide this Court’s order dated 2nd April, 2009, is, accordingly, revoked.
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2010 (7) TMI 1130 - ITAT DELHI
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... ... ..... the assessing officer had not provided copy of reasons prior to passing of the order. Therefore, in our considered opinion, it will be fair to set aside the matter to the file of the assessing officer with the directions to provide copy of the reasons for reopening of assessment. The assessee will be entitled to raise objections on receipt of the reasons from the assessing officer. The assessing officer will be bound to dispose of the objections by passing a speaking order. The assessing officer is directed accordingly. 9. Since we have set aside the issue to the file of the assessing officer on assumption of jurisdiction, the addition made by the assessing officer and confirmed by the ld. CIT (Appeals) is also set aside with the directions to be decided de novo after giving the assessee a reasonable opportunity of being heard. 10. In the result, the appeal filed by the assessee is allowed, for statistical purposes. The order pronounced in the open court on 23rd July, 2010.
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2010 (7) TMI 1129 - ITAT AGRA
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... ... ..... ut by the assessee has shown the N.P. 5.16 . The A.O. has not pointed out any specific expenditure which can be disallowed. The CIT(A) although reduced the adhoc disallowance to ₹ 5,00,000/-but the assessee has not come in appeal. The ld. A.R. agreed before us that no appeal was filed by the assessee. It is only Revenue who has come in appeal in respect of the relief given by the CIT(A). We are, therefore, of the view that no disallowance can be made on adhoc basis without pointing out that the expenses incurred by the assessee are not for the purpose of business or is a personal expense or a capital expenditure and no such finding was brought on record and even this is not the case of the Revenue. Under these facts and circumstances, in our opinion, no interference is called for in the order of the CIT(A). Accordingly, we confirm the order of the CIT(A). 8. In the result, appeal field by the Revenue stands dismissed. (Order pronounced in the open Court on 23.07.2010).
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2010 (7) TMI 1128 - ALLAHABAD HIGH COURT
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... ... ..... and, the higher authorities ought to have granted full and complete stay during the pendency of the appeal. 4. Be as it may be, without going into controversy involved in appeal, as the appeal of the assessee is pending consideration before the Joint Commissioner (Appeals), this revision is disposed of with the consent of the parties with the direction to the first appellate authority to consider and decide the aforesaid appeal within a period of six weeks from the date of production of the certified copy of this order which the assessee undertakes to produce within a period of one week from today. 5. For a period of six weeks or till the decision of the appeal whichever is earlier, no realization of the disputed amount of tax shall be made from the assessee provided he furnishes security other than Cash and Bank guarantee to the satisfaction of the Assessing Authority. 6. It goes without saying that the assessee will co-operate with the early disposal of the pending appeal.
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2010 (7) TMI 1127 - ALLAHABAD HIGH COURT
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... ... ..... egs to stand, the higher authorities ought to have granted full and complete stay during the pendency of the appeal. Be as it may be, without going into controversy involved in appeal, as the appeal of the assessee is pending consideration before the Joint Commissioner (Appeals), this revision is disposed of with the consent of the parties with the direction to the first appellate authority to consider and decide the aforesaid appeal within a period of six weeks from the date of production of the certified copy of this order which the assessee undertakes to produce within a period of one week from today. For a period of six weeks or till the decision of the appeal whichever is earlier, no realization of the disputed amount of tax shall be made from the assessee provided he furnishes security other than Cash and Bank guarantee to the satisfaction of the assessing authority. It goes without saying that the assessee will co-operate with the early disposal of the pending appeal.
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2010 (7) TMI 1126 - GUJARAT HIGH COURT
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... ... ..... n (1) thereof, which requires the Director General or Chief Commissioner or Commissioner to transfer a case from one Assessing Officer to another after recording his reasons for doing so. A perusal of the impugned order dated 1st October 2009 made under sub-section (2) of section 127 of the Act indicates that the same does not reflect any reasons for transferring the cases from the Assessing Officer mentioned in column 4 of the order to the Assessing Officer mentioned in column 5 thereof. 8. In the light of the aforesaid, it is apparent that the impugned order made under sub-section (2) of section 127 of the Act is not in consonance with the provisions of sub-section (1) thereof and as such, cannot be sustained. 9. For the foregoing reasons, the petitions succeed and are, accordingly, allowed. The impugned orders dated 1st October 2009 made under section sub-section (2) of section 127 of the Act are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
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2010 (7) TMI 1125 - ITAT CHENNAI
Application under Rule 27 - reopening of the assessment - opening stock of TTK Biomed Ltd.- HELD THAT:- A perusal of the Balance Sheet and Schedule 7 thereto of TTK Biomed Ltd. as on 30.6.1999 clearly shows that the closing balance shown is as on 30.6.1999 at ₹ 6,91,58,608/-. Thus the opening stock as on 1.7.1999 would be at ₹ 6,91,58,608/-. In the circumstances we are of the view that the assessee has adopted the opening stock of TTK Biomed Ltd. as on 1.7.1999 at ₹ 6,91,58,608/- and such figure is not the opening stock as on 1.4.1999. Therefore the issue as noted in the assessment order being the first issue is held against the Revenue. Consequently, Revenue’s appeal stand dismissed.
excess grant of depreciation - HELD THAT:- From the facts, it cannot be said that income chargeable to tax has escaped assessment on account of the excess grant of depreciation on the plant and machinery transferred by TTK Biomed Ltd to the assessee company. We may also mention here that the learned CIT(A) has deleted the addition made on this count and the Revenue has not preferred any ground against such deletion.
subsidy received by the assessee - HELD THAT:- From the facts as the subsidy received are not the income of the assessee for the relevant assessment year the finding of the learned CIT(A) in deleting the same is found to be correct and also the same does not result in escapement of income which gives room for reopening. We may also mention here that the order of the learned CIT(A) in deleting this addition has also been accepted by the Revenue insofar as no ground has been raised against such deletion.
In the circumstances, the appeal of the Revenue is partly allowed and the application under Rule 27 of the ITAT Rules raised by the assessee is admitted for adjudication and dismissed on merits. Consequently the reopening of the assessment is upheld and the Revenue’s appeal stands partly allowed.
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2010 (7) TMI 1124 - HIMACHAL PRADESH HIGH COURT
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... ... ..... a factory or a warehouse in accordance with the provisions of sub-rule (2) may, if not subjected to any process amounting to manufacture, be removed from the factory or warehouse without payment of duty subject to such conditions as may be specified by the Collector.” 20. A bare perusal of this Rule shows that if during the process of rectification or repair any material is subjected to process amounting to manufacture then the same cannot be removed without payment of duty. As held by us the process of making the defective material suitable for marketing to the consumers was a manufacturing process by deemed fiction of Chapter Note 11 to Chapter 29 and hence there finished product was exigible to duty. 21. In view of the above discussion, the question is answered in favour of the assessee insofar as it relates to Histic tablets and in favour of the Revenue and against the assessee insofar as it relates to Pen-G Acylase. The appeal is disposed of accordingly. No costs.
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2010 (7) TMI 1123 - UTTARAKHAND HIGH COURT
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... ... ..... is Court is in full agreement with the law cited by the Assessee in Commissioner of Income Tax v. V.T. Rajendran 2007 288 ITR 312 (Mad) and holds that re-assessment order cannot be passed purely on the basis of DVO’s report. In our view, in the present case the DVO’s report was called after accepting the books of account submitted by the Assessee. Not only the Assessing Officer has accepted the books of account but thereafter the reassessment order has been passed purely on the basis of DVO’s report, which in our view is not proper. In our view, having accepted the books of account it did not lie with the Assessing Officer to call for a report from the DVO. Therefore, this Court finds no merit in the contention advanced by the appellants i.e. the Revenue. This Court also finds no anomaly in the order of the Tribunal dated 31.7.2008, which is hereby upheld. The present Income Tax Appeal is liable to be dismissed and is hereby dismissed. No order as to costs.
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2010 (7) TMI 1122 - CESTAT AHMEDABAD
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... ... ..... ts 1. D.R. Polymers Ltd. Vs. CC, ICD, TKD, New Delhi 2004 (166) ELT 393 (Tri. Del.) 2. Narayan International Vs. Collector of Customs 1992 (58) ELT 126 (Tribunal) 3. Vintel Distributors Pvt. Ltd. Vs. CC (SEA), Chennai 2002 (149) ELT 145 (Tri. Chennai) 4. Elite Packaging Industries Vs. Collector of Cus. & C.EX. 1992 (60) ELT 311 (Tribunal) 5. Do Best Infoway Vs. CCE, Amritsar 2004 (166) ELT 424 (Tri. Del.) 7. Apart from above, we note that there is absolutely no evidence available on record showing that any extra money has flowed back to the supplier. Invoice is the only document on record reflecting the transaction value and in the absence of any evidence to doubt or establish the falsity of the value declared in the invoice, the same has to be accepted as the transaction value. We accordingly find no reasons to uphold the impugned order. The same is accordingly set aside and appeal allowed with consequential relief to the appellants. (Dictated & Pronounced in Court)
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2010 (7) TMI 1121 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... herefore, no addition is warranted. Thus, on this issue also, the assessee succeeds.” 3. We have heard learned counsel for the revenue. 4. Learned counsel for the revenue fairly states that questions (i) to (iii) are covered against the revenue by order passed by this Court dated 5.7.2010 in I.T.A. No.151 of 2010 Commissioner of Income Tax v. Market Committee, Narwana. Accordingly, the said questions cannot be held to be substantial questions of law. 5. As regards questions (iv) and (v), findings of the Tribunal clearly show that the assessee was following cash system of accounting. Even the order of assessment records that cash system of accounting was followed by the assessee. In such a situation, only on the basis of accrual of interest income, addition could not be made to the income of the assessee. The findings of the Tribunal are, thus, not erroneous in any manner. Questions (iv) and (v) cannot be held to be substantial questions of law. The appeal is dismissed.
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2010 (7) TMI 1120 - PATNA HIGH COURT
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... ... ..... that on facts the claim of the assessee should not have been allowed in view of the Explanation furnished under Rule 2 of the Rules. 7. In our view an important issue of facts arises in the present case as to whether besides the non-alloy steel ingots and billets falling under sub-heading Nos. mentioned in Rule 2 of the Rules, the other products were items ordinarily produced in the unit or were mere incidental products covered by the Explanation to Rule 2. 8. In view of the aforesaid discussion and for considering the relevant issue indicated above, the matter requires to be remitted to the learned Tribunal and hence the order under appeal dated 12-8-2008 is set aside and the case is remitted to the Tribunal. It is made clear that the Tribunal shall re-hear the matter and decide the relevant issues on merits without being influenced by any factual observations in this order. The appeal is allowed to the extent indicated above. There shall be no order as to costs.
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2010 (7) TMI 1119 - CESTAT BANGALORE
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... ... ..... d. Commissioner has relied upon the various decisions during the relevant period. We find that the co-ordinate Bench of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. 2007 (216) E.L.T. 589 (Tri.-Ahmd.) following their own order as reported at 2006 (196) E.L.T. 34 has held that for the DTA clearance computation of entitlement would include the deemed exports made by an assessee and deemed export to be treated on par with physical exports. This judgment of the co-ordinate Bench was taken up in Civil appeal by the Revenue to the Apex Court and the said civil appeal was dismissed as reported at 2010 (254) E.L.T. A98. Since the findings of the Tribunal in an identical issue have attained the finality in the hands of the Apex Court, we find that the impugned order is correct and does not suffer from any infirmity needs to be upheld. Appeal filed by the Revenue being devoid of merits and is rejected. (Operative portion of this order pronounced on conclusion of the hearing)
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2010 (7) TMI 1118 - MADRAS HIGH COURT
Whether a bank or financial institution, while invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Rules made thereunder, is entitled to bring the property for sale by way of auction without disclosing the encumbrance?
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2010 (7) TMI 1117 - ITAT AHMEDABAD
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... ... ..... the transaction should have been verified and shown that it was in fact money of the assessee and not that of Mrs. Trivedi. Once having accepted the genuineness of the transaction, the explanation cannot be treated as unsatisfactory unless it is investigated and found to be false. If the events narrated in the explanation could have taken place then without contradicting the facts stated in the explanation, it cannot be rejected. If the law provides that penalty can be levied as explanation is not satisfactory then satisfaction of the AO on the explanation furnished by the assessee should be objective and not merely subjective rejecting out-rightly, even though there is no material to contradict the facts stated in the explanation. I accordingly hold under the circumstances the explanation furnished by the assessee as satisfactory and accordingly cancel the penalty. 7. In the result, the appeal filed by the assessee is allowed. Order was pronounced in open Court on 7/7/2010
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2010 (7) TMI 1116 - ITAT MUMBAI
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... ... ..... that the relationship between the jobbers and the assessee company is that of cosharer of profit/loss and therefore the provisions of sec. 194C are not attracted. He has not given any independent finding in this case. Further, neither the ld. D.R. nor the ld. counsel could throw any light as to whether the order of the CIT(A) in the case of Prakash K. Shah Shares & Securities P. Ltd. (supra) has been accepted by the Revenue or the Revenue has filed any appeal before the Tribunal and, if so, the outcome of the same. We, therefore, deem it proper to restore this matter to the file of AO with a direction to adjudicate the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The ground raised by the Revenue is accordingly allowed for statistical purposes. 11. In the result, the appeal filed by the Revenue is partly allowed for statistical purposes. Order pronounced on the 09th day of July, 2010.
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2010 (7) TMI 1115 - COMPANY LAW BOARD
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... ... ..... n with the covenants of the SHA which contains an arbitration clause. (D) The respondents have raised the plea that there is an arbitration agreement and prayed for referring the disputes to arbitration as contemplated by the arbitration clause before submitting their first statement on the substance of the dispute. (E) The substratum of the disputes in both petitions emanate from the SHA. (F) The question of bifurcation of causes of action or bifurcation of parties does not arise. ( 18. ) For the reasons mentioned above I allow C. A. No. 466 of 2009 filed in C. P. No. 78/ND of 2009 and C. A. No. 468 of 2009 filed in C. P. No. 79/ND of 2009 and refer the parties in both matters to arbitration to be conducted in accordance with the rules of Conciliation and Arbitration of the International Chamber of Commerce in London. No order as to costs. Both C.P. No. 78/ND of 2009 and C. P. No. 79/ND of 2009 accordingly stand disposed of. A copy of this order be placed in both petitions.
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2010 (7) TMI 1114 - ITAT AHMEDABAD
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... ... ..... of the Tribunal to demonstrate that in Assessment Year 2001-02 earlier an order was passed in assessee’s own case bearing ITA No.870/Ahd/2003 dated 09/03/2007, through which the matter was restored back to the stage of the Assessing Officer to decide the issue whether the donations could be held as income of the assessee’s trust or eligible for deduction. In the second round, again the matter had reached upto the Tribunal for Assessment Year 2001-02 wherein the Revenue’s appeal was dismissed in ITA No.1806/Ahd/2009 vide order dated 04/09/2009 by Respected Co-ordinate “B” Bench and held that the assessee is entitled to exemption u/s.11 of the I.T. Act, 1961. 5. In the light of above background, hardly any scope has left for our interference at this stage, therefore, we find no force in the ground of the Revenue, hence, dismissed. 6. In the result, appeal of the Revenue is dismissed. Order signed, dated and pronounced in the Court on 30/ 07 /2010.
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2010 (7) TMI 1113 - ITAT KOLKATA
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... ... ..... SC) wherein the Supreme Court held that merely because the assessee had claimed the expenditure which claim was not accepted or was not acceptable to the Revenue that by itself would not, in our opinion, attract the penalty u/s 271(1)(c) . If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the A.O. for any reason, the assessee will invite penalty u/s 271(1)(c) . That is clearly not the intendment of the Legislature. Therefore, he requested to uphold the order of the CIT(A). 7. After hearing the rival submissions and careful perusal of the materials available on record and respectfully following the ratio laid down by the Apex Court in the case of CIT vs Reliance Petroproducts Pvt. Ltd. (supra) , we are of the considered opinion that no interference is required in the order of the CIT(A). Therefore, we confirm the same and dismiss the appeal of the assessee. 8. In the result, the appeal of the assessee is dismissed.
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