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2011 (11) TMI 868
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... ... ..... interest during the year under consideration, and the interest had been paid only on the brought forward balance of three parties. Finally, she had failed to prove a direct nexus between the interest bearing loans and the interest-free advances given, and had failed to note that at least two of the parties to whom advances had allegedly been given were firstly, not covered by the provisions of section 40A(2)(b) and secondly, the advances were given for supply of building materials and not simply for earning interest. 11. Given such facts and circumstances of the case, I have no other option but to direct the AO to delete the addition of Rs.3,50,960/-.” Since the above finding of the ld. CIT(A) remained uncontroverted by the Revenue, we feel no need to interfere with the order passed by him and the same is hereby confirmed. This ground of Revenue is dismissed. 10. In the result, the appeal filed by the Revenue is dismissed. Order was pronounced in open Court on 30/11/11.
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2011 (11) TMI 867
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... ... ..... e excellent assistance rendered by Mr.I.Subramaniam, the learned State Public Prosecutor, Mr.R.Shunmuga Sundaram, the learned Senior Counsel and Mr.N.R.Elango, the learned Senior Counsel. 51. In the result, the impugned order dated 10.10.2011 passed by the learned Judicial Magistrate No.V, Trichy, is set aside and Criminal Original Petition (MD).No.13683 of 2011 is allowed. The matter is remitted back to the said Magistrate for passing appropriate orders, under Section 167(1) of the Code of Criminal Procedure, after affording opportunity to the prosecution as well as to the accused. The respondents are directed to surrender before the learned Judicial Magistrate, on 09.11.2011, at 10.30 AM and if they fail to appear, the learned Magistrate shall secure their custody by issuing non - bailable warrants. We further direct that the Magistrate shall not adjourn the proceeding, at any cost and shall pass appropriate orders on the same day of the surrender/production of the accused.
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2011 (11) TMI 866
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... ... ..... ct. Under the circumstances, on the aforesaid ground the complaint is not required to be quashed and set aside. Under the circumstances, the decision relied upon in the case of S.P. Chegalvaraya Naidu (dead) (supra) would not be any assistance to the petitioners in the facts and circumstances of the case. 11. In view of the above and for the reasons stated above, no case is made out to quash and set aside the impugned complaint in exercise of powers under Section 482 of the Code of Criminal Procedure. Hence, present application deserves to be dismissed and is accordingly dismissed. Rule discharged. Ad-interim relief granted earlier stands vacated forthwith. At this stage, Shri J.T. Trivedi, learned Advocate for the petitioners has requested to extend the ad-interim relief granted earlier. In the facts and circumstances of the case and for the reasons stated above when no case is made out to quash and set aside the impugned complaint, the prayer of the petitioners is rejected.
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2011 (11) TMI 865
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... ... ..... ion before us. It is a settled proposition that the provisions of s. 198 are merely machinery provisions and are not related to computation of income and chargeability of income as held by the Bombay Tribunal in the case of Smt. Varsha G. Salunke (supra). In the absence of the charging provisions to tax such deemed income as the income of the assessee, the provisions of s. 198 of the Act cannot by themselves create a charge on certain receipts. Further, it is an admitted proposition that the AO accepted the claim of the assessee both in earlier and later years; it is also noted that the AO refrained from making additions in the reassessment proceedings also. In such factual circumstances, considering the principles of consistency from the Revenue's point of view, we are of the opinion that the order of the CIT(A) does not call for any interference. Accordingly, the grounds raised by the Revenue are dismissed. 6. In the result, the appeal filed by the Revenue is dismissed.
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2011 (11) TMI 864
Petition for quashing/setting aside initiation of suo motu proceedings by Competent Authority - gross misconduct on the part of the Notary - without application of mind - The State Government has initiated a suo motu proceedings against the petitioner for authenticating two marriage affidavits evidencing solemnization of marriage without verifying the records regarding the age of the girl which constitute gross misconduct/unbecoming on the part of the Notary. The petitioner has been further noticed to show cause within 14 days from the date of receipt of the same as to why action as prescribed under law shall not be taken against him for the aforesaid misconduct. Hence, the present writ petition.
HELD THAT:- In the case at hand, it is nobody's case that the show cause notice has been issued by an authority without having jurisdiction to issue such notice. Moreover, the stand taken by the petitioner in this writ petition is almost similar to the stand taken in his reply letter dated 07.09.2011 (Annexure-3) submitted before the Principal Secretary to Government, Department of Law pursuant to letter dated 27.08.2011 (Annexure-2) which are disputed questions of fact and cannot be gone into by this Court in exercise of power under Articles 226 and 227 of the Constitution. Therefore, this writ petition is disposed of giving liberty to the petitioner to file his reply to the notice of show cause under Annexure-4 within two weeks from the date of receipt of a copy of this judgment. If such reply is filed by the petitioner, the same shall be considered and disposed of by the Competent Authority by strictly following the procedure prescribed under Rule 13 of the Rules, 1956. the writ petition is disposed of.
The functions and transactions of business by Notary as envisaged in Section 8 of the Act, 1952 and Rules, 1956 respectively cannot be done in a routine manner without application of mind; otherwise the very purpose of enacting Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 would be frustrated because sanctity is attached to the certificate of the Notary. Thus, Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 cast an obligation on Notary to apply his mind while discharging his notarial functions and transactions of business.
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2011 (11) TMI 863
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... ... ..... d by the Supreme Court in Vodafone International Holdings B.V. V/s. Union of India (Petition for Special Leave to Appeal (Civil) 464 of 2009). 3. Counsel appearing on behalf of the Petitioner has no objection to the same course of action being followed in the present case requiring the Assessing Officer to determine the issue of Jurisdiction as a preliminary issue, following the directions issued by the Supreme Court in Vodafone (Supra). 4. We direct that the jurisdictional issue shall be determined by the First Respondent as a preliminary issue. In the event that a decision adverse to the Petitioner is taken, all the rights and contentions are kept open for espousing such remedies as are available in law. In the event that a decision adverse to the Petitioner is taken, no further steps to enforce the demand shall be taken for a period of two weeks from the date of the communication of the order. 5. The Petition is accordingly disposed of. There shall be no order as to costs.
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2011 (11) TMI 862
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... ... ..... the assessee has failed to make out any case of denial of opportunity or having any sufficient cause for failure to adduce the evidences before the AO at the assessment stage. The learned CIT(A), therefore, was not justified in entertaining the additional evidence at the appellate stage in violation of Rule 46A of the IT Rules. As noted above, the learned CIT(A) also wrongly applied the theory of peak credit in the matter because the amount debited through cheque payment would not speak of peak theory. Therefore, deletion of addition on this issue is also highly unjustified. We accordingly, set aside the order of the learned CIT(A) to that extent also and restore the order of the AO. In view of the above discussions, the addition deleted by the learned CIT(A) is set aside and the order of the AO is restored. Grounds No.2 to 7 of the appeal of the revenue are accordingly allowed. 9. In the result, the appeal of the revenue is partly allowed. Order pronounced in the open Court.
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2011 (11) TMI 861
2G Spectrum Scam case - five bail applications for grant of regular bail - Prevention of Corruption Act, 1988 (PC ACT) - CBI had registered the FIR on the allegations of criminal conspiracy and criminal misconduct against the unknown officials of Department of Telecommunications, Government of India and some unknown private persons/companies and others u/s 120B IPC and u/s 13(2) read with Section 13(1)(d) of the (PC ACT) in respect of allotment of Letters of Intent, Unified Access Services (hereinafter referred to as "UAS") Licenses and 2G Spectrum by the Department of Telecommunications. CBI had filed the first charge sheet in the Court of learned Special Judge. A supplementary charge sheet was filed u/s 120B IPC read with Section 7/11/12 of the PC ACT.
HELD THAT:- the accused are charged of economic offence of huge magnitude and if proved, it may jeopardize the economy of the country, yet at the same time, the Court observed that it cannot lose the sight of the fact that the charge sheet has already been filed and charges have been framed and keeping in view the voluminous nature of documents and the number of witnesses, which are to be examined by the prosecution, it will not be conducive to keep the accused persons incarcerated indefinitely during the period of trial, when there is no serious challenge to their fleeing from the processes of law or tampering with the evidence or not subjecting themselves to such orders as the Court may pass from time to time. It was also contended that the Supreme Court has reiterated the denial of bail to an accused has to be done as an exception and for cogent and sound reasons, as it affects his right to liberty guaranteed under Article 21 of the Constitution. In the light of the aforesaid facts and circumstances, Court allowed the bail applications of all the five accused persons and they are directed to be released on bail on their furnishing a personal bond in the sum of ₹ 5 lakhs each with two sureties for the like amount to the satisfaction of the learned trial Court, subject to the conditions.
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2011 (11) TMI 860
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... ... ..... ading Corporation states that the reply of the State Trading Corporation is ready and can be filed in the Court today. At the request of Mr. Dhanure and to enable him to file the reply and forward copy of the same to all parties so also the parties to respond thereto, stand over for two weeks.
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2011 (11) TMI 859
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... ... ..... companies which are not statutory companies or Govt. companies as defined u/s. 617 of the Companies Act. (ii) In the Memorandum of Articles of Association, there is a clause to the effect that the dividends be declared as per the Board's resolution. 3. After hearing both the parties, we are of the opinion that similar issue was considered by this Tribunal in assessee’s own case for A.Y. 2005-06 in I.T.A. No. 1457/Hyd/2008 vide order dated 18.12.2008 and for the A.Y. 2006-07 in I.T.A. No. 850/Hyd/2009 vide order dated 9th July, 2010 and the Tribunal held that the assessee is entitled to exemption u/s. 11 of the Act and decided the issue in favour of the assessee. 4. In view of the above precedents, we are inclined to follow the same ratio laid down by the above orders of the Tribunal. Accordingly, the grounds raised by the Revenue are dismissed. 5. In the result, both the appeals of the Revenue are dismissed. Order pronounced in the open court on 22nd November, 2011.
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2011 (11) TMI 858
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... ... ..... n in the value of units of Birla Index Fund in computing the business income was neither substantiated by the assessee nor there was anything to show that the same was bonafide. Moreover, the relevant details or particulars relating to its claim for the said loss were not furnished by the assessee and it was only as a result of enquiry made by the AO during the course of assessment proceeding that the falsity of the assessee’s claim for the said loss was detected. Having regard to all these facts of the case and keeping in view the decision of Hon’ble Delhi High Court in the case of Zoom Communication (P) Ltd. (supra), we are of the view that it is a fit case to impose penalty u/s 271(1)(c). In that view of the matter, we uphold the penalty imposed by the AO and confirmed by the learned CIT(Appeals) and dismiss this appeal of the assessee. 14. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on this 18th day of Nov., 2011.
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2011 (11) TMI 857
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... ... ..... material available on record. We find that the issue involved in this appeal, as to whether the assessee, maintaining cold chain storage facility, is eligible for deduction under S.80IB of the Act, is covered in favour of the assessee with the decision of the Agra Bench of the Tribunal in the case of Paliwal Ice & Cold Store V/s. ITO(ITA lNo.231/Agr/2007 dated 24.10.2008), a copy of which has also been filed before us. It has also been brought to our notice that the said decision of the Agra Bench of the Tribunal has also been affirmed by the Hon’ble Allahabad High Court, vide its order dated 3.11.2011 in Income Tax Appeal No.288 of 2009. In this view of the matter and in the absence of any decision to the contrary brought to our notice, we find no infirmity in the order of the CIT(A). We accordingly uphold the same rejecting the grounds of the Revenue in this appeal. 10. In the result, Revenue’s appeal is dismissed. Order pronounced in the court on 22.11.2011
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2011 (11) TMI 856
Prayer for CBI enquiry - Gross abuse and misappropriation of National Rural Health Mission (NRHM) funds by the State functionaries - failure to reconstitute State Health Mission and gross irregularities in purchase of various items and failure on the part of the State Government to take effective measures to monitor the implementation of the NRHM - murders of two Chief Medical Officers took place and the death of one Dy. CMO while in judicial custody - CAG has been requested to conduct special State level audit - HELD THAT:- We fail to appreciate that when so many reports were coming forward and one Press Release was issued by the State of U.P. itself taking cognizance of the matter then why effective steps were not taken till date for dealing with such gross irregularities. The State has not been able to explain its aforesaid inaction. The inaction of the State and omission to take necessary steps has not only resulted in committing financial irregularities which the learned Additional Advocate General terms as financial mismanagement but also has deprived the beneficiaries of the laudable scheme which was sought to be implemented for providing medical facilities
The consequence and effect of such inaction and omission on the part of the State have necessarily to be found out for which an independent enquiry by an independent agency as CBI is necessary. This would also be in consonance with the provision of Section 6-A of the CBI Act and para 9.1 of the CBI Manual that provides that where sufficient evidence is not available to register a regular case, preliminary enquiry may be conducted. We are prima facie convinced that gross irregularities - financial and administrative appear to have been committed in the execution and implementation of NRHM including the matter of award of contracts, procurement of goods, articles and etc. at various levels.
We are not inclined to grant the plea of learned Additional Advocate General that we should wait for the CAG Report before considering to entrust the matter to CBI in light of the fact that CAG is conducting a special state level audit more so when statutory audits by CAG were not got conducted, MoU obliged statutory audits by CAG of the funds routed through the MoU. None of the opposite parties have attempted to explain this inaction. Further, the special audit which has been ordered is only with respect to 24 districts for the financial year 2009-10 and 2010-11.
Learned Additional Solicitor General has also rightly pointed out that it is not necessary for this Court to wait for CAG Report as the scope of CAG and CBI being completely different and with the kind of irregularities appear to have been committed in the instant matter coupled with the fact that attempt was made to wash of some evidence, the exigencies of time require that immediate steps be taken to bring to light the persons guilty.
Learned Additional Advocate General has also not been able to explain as to why the State would have waited for the outcome of the CAG Report when it was itself competent to take necessary action. His argument that pending CAG Report, there is no material before this Court is untenable. We also take notice of the fact that the murders of two CMOs (Family Welfare), Dr. V.K. Arya and Dr. B.P. Singh, death of Dr. Y.S. Sachan while in judicial custody (Jail) and financial irregularities committed in the office of CMO, Lucknow all in relation to irregularities in NRHM are already being investigated by the CBI pursuant to the orders of this Court with the consent of the State Government.
The facts and circumstances, aforesaid make out a case for reference to CBI for making a preliminary enquiry in the affairs of NRHM in the entire State of U.P. right from the very inception of the NRHM. We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within four months. The State Government is directed to hand over and make available all the records as may be required by the CBI and render full support and cooperation to CBI. The Central Government is also directed to render full support as may be asked by the CBI.
We may make it clear that the allegations levelled in the instant petitions have been examined only on prima facie scale and therefore CBI may proceed to conduct preliminary enquiry independent of our observations in accordance with law.
Petitions accordingly stand disposed.
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2011 (11) TMI 855
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... ... ..... tion 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said Section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the Trial Court could proceed with the trial on merits. 10. Resultantly, the appeal is allowed. The impugned judgment as also the orders of the Chief Judicial Magistrate dated 18th February 2003 and 9th November 2005 are set aside and the complaint filed by the appellant is restored to the file of the Chief Judicial Magistrate. The Chief Judicial Magistrate shall now proceed with the trial after securing the presence of the accused.
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2011 (11) TMI 854
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... ... ..... e present case, I am of the opinion that this Revision Application is required to be allowed and the parties be permitted to compound the offence. 9. In the result, the Revision Application is allowed. The judgment and order of conviction and sentence dated 16.05.2011 passed in Criminal Case No.1787 of 2010 by the learned Metropolitan Magistrate (NI Act), Court No.5, Ahmedabad, as also the judgment and order dated 09.08.2011 passed in Criminal Appeal No.2685 of 2011 by the learned Additional Sessions Judge, Ahmedabad City., dismissing the same are hereby quashed and set aside. The amount of ₹ 25,000/ deposited by the applicant in the Registry of this Court be refunded to the respondent No.1 on proper identification. The parties are permitted to compound the offence and the accused is acquitted. The amount of fine paid by the accused is treated as the costs towards the Government and will not be refunded to the accused. Rule is made absolute. Direct service is permitted.
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2011 (11) TMI 853
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... ... ..... any power conferred by or under the said Acts shall be deemed to have been done or taken in the exercise of the powers conferred by or under the 2001 Act as if the said Act was in force on the date on which such a thing was done or action taken. As a result of the said statutory provision, the registration of the petitioner under the 1350 Fasli Act is deemed to have been done under the 2001 Act. The respondent has overlooked this indisputable position of law. Therefore, the action of the respondent in treating the petitioner's tender as not valid cannot be sustained and the same is accordingly declared as illegal. The respondent is therefore directed to consider the petitioner's tender along with the other tenders and finalise the same strictly in accordance with the tender conditions. 5. The Writ Petition is accordingly allowed to the extent indicated above. 6. As a sequel, interim order dated 15-3-2011 is vacated and WPMP No. 8198/2011 is disposed of as infructuous.
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2011 (11) TMI 852
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... ... ..... te between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some "misunderstanding and misconception" will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Code of Criminal Procedure. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below. 15. We accordingly allow this appeal, set aside the impugned order passed by the High Court and quash the prosecution in CC 183/2010 pending in the Court of Judicial Magistrate, First Class, Neyyattinkara.
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2011 (11) TMI 851
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... ... ..... ipes Ltd. (2003) 5 SCC 705 at page 727), this Court after examining the grounds on which an award of the arbitrator can be set aside under Section 34 of the Act has said 31'However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term 'public policy' in Renusagar case it is required to be held that the award could be set aside if it is patently illegal. 12. We accordingly set aside the Award of the arbitrator and the judgments of the City Civil Court, Hyderabad and the High Court and remit the matter to the arbitrator for deciding the claims of the Appellant and the Respondent No. 2 in accordance with the findings in the Award on Issue Nos. 1, 2 and 3 and in accordance with this judgment. The appeal is allowed with no order as to costs.
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2011 (11) TMI 850
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... ... ..... and not in a whimsical or arbitrary or capricious manner. If the trial court commits illegality or irregularity in exercise of its judicial discretion that occasions in failure of justice or results in injustice, such order is always amenable to correction by a higher court in appeal or revision or by a High Court in its supervisory jurisdiction. Having regard to the facts of the present case, which we have already indicated above, it cannot be said that the trial court acted illegally or with material irregularity or irrationally or in an arbitrary manner in passing the orders dated February 28, 2005 and March 17, 2005. The Defendants by their conduct and tactics disentitled themselves from any further indulgence by the trial court. The course adopted by the trial court can not be said to be unfair or inconsistent with the provisions of the Code. 71. In view of the above, appeal has no merit and is dismissed with costs which we quantify at ₹ 50,000/- (fifty thousand).
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2011 (11) TMI 849
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... ... ..... Pune ITAT in Kanbay Software Pvt. Ltd., and the most recent judgment of Hon’ble supreme Court in the case of cited above, I am of the view that no grounds are made out for levy of concealment penalty in this case.” 4. After hearing both the parties and perusing the material on record, we find that that all the additions made while completing the assessment involved either interpretation of the law, or exercise of opinion, estimation or making of an adhoc disallowance. Further, the penalty is not automatic upon an addition being made to income during the assessment. 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, attract the penalty u/s 271(1)(c) of the Act. Under the circumstances, the CIT(A) was justified in deleting the penalty levied by the Assessing Officer. 5. In the result, the appeal of the Revenue is dismissed. Pronounced in the open on 29th November 2011.
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