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2011 (12) TMI 707
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... ... ..... ce on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise. 29. In the result, we allow this appeal, set aside the impugned judgment and order passed by the Division Bench of the High Court of Orissa dismissing the Writ Appeal No.11 of 2003. We, however, direct that the salary and allowances if any paid to respondent No.1 pursuant to the impugned judgment shall not be recovered from him. Parties shall bear their own costs in this Court as also in the courts below.
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2011 (12) TMI 706
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... ... ..... s of this order, as may be directed by this Court at the time of final disposal of the appeals; and (iv) the successful party in this appeal shall be entitled to interest on the amount stayed by this Court at such rate as may be directed at the time of final disposal of the appeal. It is clarified that this interim order shall apply only in case of filing of the requisite affidavit within a period of four weeks from today. We further direct that any default in deposit of any one of the instalments by the dates fixed above, would result in vacation of this stay order and it will be open to the department to recover the balance amount in accordance with law. We further clarify that there is no stay of imposition of service tax under sub-clause (zzzz) of clause (105) of Section 65 read with Section 66 of the Finance Act, 1994 (as amended), insofar as the future liability towards service tax with effect from 1st October, 2011 is concerned. Tag with Civil Appeal No. 8390 of 2011.
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2011 (12) TMI 705
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... ... ..... hat all assessees at the relevant time had turnover of more than 10 crores and (iii) that the cases involved are instances of transfer of DEPB credits. 46. In the result, to the extent mentioned above, decisions of the Tribunal involved in respective appeals are reversed. The appeals are allowed accordingly.” For the aforementioned premises, the order of the Tribunal is set aside answering the question in favour of the Revenue and against the assessee. Resultantly, the Tax Appeal is disposed of accordingly. At this stage, learned counsel for the respondent seeks certificate under Article 133 and 133A of the Constitution for approaching the Apex Court on the ground that substantial question of law of general importance is involved. Said is request is acceded to considering the fact that a substantial question of law of general importance is involved and that in the aforementioned appeals decided earlier by this Court also, such a request made by the counsel was allowed.
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2011 (12) TMI 704
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... ... ..... 1. The Apex Court further held that if the Department fails to take out the Notice of Motion within eight weeks from 10th May 2011, then the matter will not be considered by the High Court. 3. As per the aforesaid order of the Apex Court, the Revenue ought to have filed the present Notice of Motion on or before 5th July 2011, however, the present Notice of Motion is filed belatedly on 29th July 2011. In these circumstances, since the Notice of Motion is taken out beyond the time permitted by the Apex Court, we cannot consider the present Notice of Motion. Accordingly, the Notice of Motion is dismissed. 4. Since the Notice of Motion seeking condonation of delay is dismissed, the appeal papers be consigned to the record department.
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2011 (12) TMI 703
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... ... ..... Commissioner of Income-tax (Appeals) by pointing out that the payments in question are covered by the exception provided by Rule 6DD of the Income-tax Rules, 1962. 12. We have carefully considered the rival submissions and find that the Commissioner of Income-tax (Appeals) made no mistake in setting aside the disallowance, inasmuch as in terms of Rule 6DD(f)(ii) where the payment is made for the purchase of produce of animal husbandry or dairy or poultry farming, etc., the prohibition contained in section 40A(3) of the Act is not attracted. The aforesaid clause of Rule 6DD , in our view, clearly covers the case of the assessee and, therefore, the Commissioner of Income-tax (Appeals) made no mistake in deleting the disallowance of ₹ 3,30,899/- made by the Assessing Officer under section 40A(3) of the Act. We accordingly affirm his decision. 13. In the result, the appeal of the Revenue is dismissed. Decision pronounced in the open Court on the 15th Day of December, 2011.
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2011 (12) TMI 702
Assessment u/s 153A - Addition on unsecured loan u/s 68 - accommodation entries - cash credit - genuineness of transaction of the loans - incriminating documents found during search - Assessee surrendered additional income and disclosed the same in the hands of Shri Mahesh Mittal and Shri Pravin Mittal in AY 2007-08.
HELD THAT:- It was observed by the Supreme Court in the case of ITO vs. CH Atchaiah [1995 (12) TMI 1 - SUPREME COURT] that there is no option under the 1961 Act, unlike the one given under 1922 Act and the AO must tax the right person and right person only. By “right person” is meant the person, who is liable to be taxed according to the law with respect to a particular income. The expression “Wrong Person” is obviously used as opposite of the expression “right person”.
Merely because a wrong person is taxed with respect to a particular income, the AO is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact, which course is more beneficial to the Revenue. A person lawfully liable to be taxed can claim no immunity because the Assessing Officer has taxed the said income in the hands of another person contrary to law.
In the instant case, there is no dispute to the identity in so far as Lunkad Group is also on Department’s record and a survey has been carried out at premises of Lunkad Group. The genuineness of transaction of the loans become doubtful in view of the incriminating documents found during survey at Lunkad Group.
Applying the proposition of law been laid down by the Hon'ble Supreme Court in the case of Smt. Taradevi [1972 (11) TMI 2 - SUPREME COURT] to the facts of the instant case, we can safely conclude that the ld. CIT(A) was not justified in deleting the addition in the hands of the assessee company merely on the plea that the same amount has been added in the hands of the creditor company.
We found that in case of Lunkad Group addition was made in respect of cash received by it from persons, whose name, address and other particulars could not be furnished before AO. This addition is mothering to do with the genuineness of loan received by assessee from Lunkad Group. Before reaching to the third criteria of creditworthiness, assessee have to cross the barrier of genuineness of loan transaction, which has become doubtful in view of the incriminating material found during course of survey at Lunkad Group with regard to receipt of cash from the assessee company and issue of cheque against such cash in favour of the assessee company.
Thus, a legally wrong view has been taken by the ld.CIT(A), which made the Department entitled to file an appeal against such order of CIT(A). Thus, there is no merit in the argument of ld. AR to the effect that the Department had wrongly come in appeal against the order of CIT(A).
As we have reversed the order of CIT(A) with respect to deletion of addition made u/s 68, we also uphold the action of AO for disallowing interest expenses and for making addition on account of unexplained source of expenses incurred for the payment of commission on such accommodation entry.
Therefore, we reverse the order of CIT(A) and allow all the appeals of the Revenue in its favour.
Addition in respect of cash credit - Only because of incriminating document pertaining to period 1.4.2006 to 1.5.2006, the Department doubted the genuineness of all the loan transactions pertaining to period starting from 1.4.2001 to 31.3.2007. Before making addition or disallowing the cash credit, on the plea of genuineness, the Department is required to bring on record some evidence to indicate that the assessee has paid cash in consideration of the cheques so issued. Without any evidence, much less a cogent evidence, it is not legally justified to doubt the genuineness of loan transaction or make addition in the hands of the assessee company for which no material much less a cogent material is in possession of Department.
In the interest of justice and fair play, we restore the grounds raised by the assessee in the cross objection to the file of the AO for deciding afresh in terms of our above discussion and as per law.
Addition with respect to the peak amount of loan outstanding - In all these years, the assessee had taken loan and again repaid the same, therefore, the addition should be made only to the extent of peak amount of loan outstanding at any point of time falling during the period starting from 1.4.2001 to 31.3.2007. AO has prepared annexure I, which is forming part of its assessment order in case of Narmada Extrustion indicating party-wise and assessment-wise details of peak credit in respect of loans from Lunkad Group of companies.
As per Annexure I, we found that the peak amount of loan was in the AY 2005-06 amounting to ₹ 2.58 crores, however, the total addition in respect of total peak credit as made by the AO amounts to ₹ 7,59,50,000/- starting from AY 2002-03 to 2007-08. Thus, as per this Annexure the peak amount of the credit was ₹ 2.58 crores. The peak credit of ₹ 2.58 lacs as mentioned by AO in Annexure I appears to be wrong.
In the paper book, we find one more date-wise statement of loan taken by the assessee (Narmada Extrusions Limited) from various Lunkad Group Companies starting from 10th July, 2001 to 31st March, 2007. As per this statement, the peak amount of loan is ₹ 6,44,37,338/- as on 29th June, 2006. We, therefore, direct the AO to reverify and recompute the peak amount of loan and to restrict the addition to the extent of peak amount of the loan. We direct accordingly.
In the result, all the appeals of the Revenue are allowed, whereas cross objections are allowed in part for statistical purposes, in terms indicated hereinabove.
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2011 (12) TMI 701
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... ... ..... s cited before us, considered the submissions advanced. We find that the Petitioner has raised sole ground before this Court in respect of validity of notice issued under Section 148 of the Income Tax Act, 1961. The assessment year in this case is 20062007. The notice under Section 148 of the Act was issued on 26th July, 2010. Considering the provisions of the Income Tax Act, 1961 as stated above, we do not find any error in the Tax Authorities in issuing notice under Section 148 of the Income Tax Act, 1961. 5. The another circumstance which is reflected from the order of the Income Tax Authorities is, that incometax return submitted by the Petitioner for the assessment year 8 20062007 was processed under Section 143(1) of the Income Tax Act, 1961 on 10th March, 2007 and the same was accepted. There is no merit in the Petition. We do not find that extra ordinary writ jurisdiction of this Court is required to be exercised in this Writ Petition. The Writ Petition is dismissed.
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2011 (12) TMI 700
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... ... ..... d on the SLP Paper Books. Additional documents, if any, may be filed by the parties.
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2011 (12) TMI 699
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... ... ..... e Adjudicating Officer. 5. That being the position, and without expressing any opinion on the correctness of the findings of the Adjudicating Officer on merits, we set aside the impugned order of the Tribunal dated 26 October 2009 and remit the proceedings back to the Tribunal for a fresh decision. In the view that we have taken, we have not expressed any opinion on the questions of law raised and leave open all the rights and contentions of the parties to be raised before and decided by the Appellate Tribunal. We, however, clarify, by consent, that charge no. 5 which has been dropped by the Adjudicating Officer and on which finding there was no challenge by the Union of India shall not form the subject matter of the proceedings on remand. We leave it open to the Tribunal to consider all the material that may be produced by the Respondents including on the sufficiency of the certificate of KPMG. 5. The appeal is, accordingly, disposed of. There shall be no order as to costs.
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2011 (12) TMI 698
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... ... ..... rved that the decisions cited by the ld. counsel pertain to the period prior to the amendment in section 147 of the Act, which finding stands unrebutted on behalf of the assessee. Recently, the Hon’ble Delhi High Court in the case of AGR Investment Ltd. vs. Addl. CIT, 333 ITR 146 has dealt with the similar issue and has taken the view that the reasons recorded by the Assessing Officer amply demonstrate that the income has escaped assessment and they held that there was application of mind on the part of the Assessing Officer. In this case also, catena of decisions cited by the ld. counsel for the assessee has been considered by the Hon’ble Court. We, therefore, find no infirmity in the order of the ld. first appellant authority on this count and ground No.3 of the cross-objection is, therefore, rejected. 13. In the result, the appeal filed by the Revenue and the cross objection filed by the assessee are dismissed. Order pronounced in the open court on 26.12.2011.
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2011 (12) TMI 697
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... ... ..... rement that the respondent cooperative society has to credit a sum calculated at the rate of 1% of net profits every year as contribution to the Cooperative Education Fund maintained by the National Cooperative Union of India, New Delhi. The aforesaid contribution has been imposed by the statute itself. We fail to understand why statutory payment to the aforesaid fund cannot be allowed as a deduction and is not an expense. Earlier for the assessment years 1991-92 and 1992-93 the matter had come up to the Delhi High Court on the question whether the said contribution was a cess, tax, duty or fee and therefore, Section 43B of the Act was applicable. It is not disputed in the present case that aforesaid payment to the cess has been made. In earlier years the payment was not disallowed on the ground that it is not an expense under Section 37 of the Act or mere application of income. On the second ground, we do not see any reason to interfere. The appeal is accordingly dismissed.
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2011 (12) TMI 696
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... ... ..... the assessee getting any enduring benefit. With the approval of SEBI, the assessee was to increase the share capital and thereby promote its business activity. However, the same got aborted due to reasons beyond its control. In these circumstances, in view of the decision of this Court in the case of Commissioner of Income Tax V/s. M/s.Essar Oil Limited, Income Tax Appeal (L) No.921 of 2006 decided on 16th October 2008, in our opinion, no fault can be found with the decision of the Income Tax Appellate Tribunal in allowing the aborted share issue expenditure under Section 37 of the Income Tax Act, 1961. 3. Accordingly, the appeal is dismissed with no order as to costs.
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2011 (12) TMI 695
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... ... ..... by him, however it is the Respondent's concern that doing so may cause excessive load on the Respondent's server. In that case, the Respondent can provide the said information in installments / batches over a period of time so that the efficiency of their server is not sacrificed at the cost of Appellant's RTI Application. 8. Thus, the Commission hereby directs the Respondent to provide the information sought by the Appellant through the said RTI Application in the form of CD / DVD. The information shall be provided over a period of 3 months whereby the first batch of information for the period of 01/01/2010 to 31/03/2010 shall be provided within 30 days of receipt of this Order and the second batch of information for the period of 01/04/2010 to 30/06/2010 shall be provided in the next 30 days and finally, the third batch of information for the period of 01/07/2010 to 20/09/2010 shall be provided within the next 30 days. 9. The Appeal is accordingly disposed of.
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2011 (12) TMI 694
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... ... ..... cern of the assessee. The ld. D.R. could not place any material so as to take a contrary view other than the view taken by the Tribunal. We, therefore, do not find any infirmity in the order of the ld. CIT(A) and accordingly uphold the same. The ground raised by the Revenue is accordingly dismissed. 3. In the result, Revenue’s appeal in ITA No. 6402/Mum/2010 for A.Y. 2004-05 is dismissed. ITA No. 6203 to 6205/Mum/2010 for A.Y. 2005-06 to 2007-08 & 6390/ Mum/2010 for A.Y. 2006-07 & 6391 to 6392/Mum/2010 for A.Y. 2007- 08 (By Revenue). 4. The grounds taken by the Revenue in the above appeals are identical to the ground taken by the Revenue in ITA No. 6402/Mum/2010. We have already decided the issue in favour of the assessee and dismissed the appeal filed by the Revenue. Following the same ratio, the grounds raised by the Revenue in the above appeals are dismissed. 5. In the result, all the appeals filed by the Revenue are dismissed. Order pronounced on 21.12.2011
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2011 (12) TMI 693
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... ... ..... for E.C and NDPS Act cases, Madurai. CRIMINAL APPEAL (MD).No.256 of 2009 and CRL.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 M.JAICHANDREN, J. AND S.NAGAMUTHU, J. These matters are again listed today under the caption "For Being Mentioned" at the instance of the learned counsel appearing for the respondent in order to correct a typographical error in the order dated 23.12.2011. 2. The learned counsel appearing for the respondent would point out that in Paragraph No.25 of the order, in the last but one sentence, instead of the words "on or after 18.11.2009", it has been mistakenly typed out as "on or before 18.11.2009" and this needs to be corrected. 3. In our considered opinion, it is purely a typographical error, and therefore, it needs to be corrected. Accordingly, the words "on or before 18.11.2009 are corrected as "on or after 18.11.2009". The Registry is directed to carryout necessary amendments and issue a fresh order copy.
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2011 (12) TMI 692
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... ... ..... ver found it essential at all times to give the Act, 1996 a primacy. In this case, the Act, 2006 which is an Act of the Parliament and will hold itself field for determining the rights of parties for the disputes that they have arisen between a supplier and a buyer. The arbitral proceedings before the Council have not made much head way except that through the impugned order, it is clear that the Council has decided to accept the termination of conciliation proceedings and it has stated that the case was being adjourned and the parties will be informed the future date of hearing. The petitioner shall have his recourse only under the Act, 2006 and with reference to the procedures for which the Act, 2006 does not make provision for conducting the arbitral process, he shall be entitled to resort to the Act, 1996 to the extent to which it is applicable. In the light of the above reasoning, the writ petitions challenging the impugned order ought to fail and accordingly dismissed.
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2011 (12) TMI 691
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... ... ..... furnished all necessary details in respect of sale of land. It is also noted by the Ld. CIT(A) as to whether the profit on sale of land is assessable as business income or capital gain is a debatable issue and since all the particulars have been disclosed by the assessee, it cannot be held to be a case of furnishing inaccurate particulars of income so as to attract levy of penalty. This finding of Ld. CIT(A) could not be controverted by the Ld. D.R. of the revenue and hence, we are of the considered opinion that in the present case, no interference is called for in the order of ld. CIT(A) regarding deletion of penalty. 19. In the result, this appeal of the revenue is dismissed. 20. In the combined result, the appeal of the assessee is dismissed and the quantum appeal of the revenue is allowed for assessment year 1999- 2000 and penalty appeal of the revenue is dismissed for the assessment year 2000-01. 21. Order pronounced in the open court on the date mentioned hereinabove.
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2011 (12) TMI 690
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... ... ..... ted under the head “business”, depreciation is allowable u/s.32 of the I.T. Act, 1961 as per Rules and when income is computed u/s.56 of the I.T. Act, 1961 and income is of the nature of clauses (ii) & (iii) of section (1) of section 56, then deduction of the nature of that provided u/s.32(1) & 32(2) are to be allowed by virtue of section 57(2) of the I.T. Act, 1961. The receipt shown by the assessee is fully taxable and has been so offered by the assessee. Accordingly, the order of the Learned CIT(Appeals) is correct and, therefore, does not require any interference. In the result, the appeal of the Revenue is dismissed.” In view of above, we are of the view that ld. CIT(A) has rightly deleted the impugned addition. His order is in conformity with the order of the Tribunal. We uphold the same. The ground raised by the Revenue is dismissed. 7. In the result, the appeal filed by the Revenue is dismissed. Order was pronounced in open Court on 2/12/11.
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2011 (12) TMI 689
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... ... ..... ed for registration of the same mark in respect of salt. The right of the plaintiff to maintain a quia timet action was upheld by this Court. I, therefore, hold that even if there has been no use of the trademark GE by the defendants, the plaintiff, on account of the defendants having applied for registration of the aforesaid trademark, is very much entitled to seek injunction against infringement of its trademark by them. CONCLUSION For the reasons given in the preceding paragraphs, a decree for injunction with proportionate costs is passed restraining the defendants from using the mark GE or any other mark which is identical or similar to the registered trademarks GENERAL ELECTRIC, GE (monogram) and GE of the plaintiff. In the facts and circumstances of the case particular considering the fact that there is no evidence of actual user of the mark GE by the defendants, I do not deem it appropriate to grant any other relief to the plaintiff. Decree sheet be drawn accordingly.
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2011 (12) TMI 688
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... ... ..... would remain a disposal of the capital asset only and not a transaction of any ‘stock in trade so as to be subscribed as ‘adventure in the nature of trade. If the tests as applied by Jurisdctional High Court in the case CIT vs Sohan Khan, (supra) are applied in the instance case then transactions in respect of sale of land is to be considered as transaction of sale of capital asset. The word ‘asessable’ has been included in Section 50C w.e.f. 1-10-2009. Hence before that date the same made through agreement of sale are not covered u/s 50C of the Act. On this issue, both the Jodhpur and Jaipur Bench held that Section 50C are not applicable in case the sales are made through agreement. We therefore, hold that the ld.CIT(A) was justified in directing the AO to treat the profit from sale of plots as capital gain and not as business income. 5 .0 In the result, the appeal of the Revenue is dismissed. The order is pronounced in the open Court on 16-12-2011.
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