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2011 (5) TMI 1073
Penalty u/s 271D - Loans in excess of Prescibed limit - Reasonable Cause u/s 273B - Assessee received loans in cash in excess of Rs 20000 from relatives - HELD THAT:- We find that the assessee has received this loan in cash from relatives and transaction between relatives is not in the character of loans or deposit attracting the provisions of section 269SS. We are of the view that the loans from relatives are in the nature of financial support within the family and this is a reasonable cause falling u/s. 273B.
Accordingly, we delete the penalty levied by JCIT - Decision in favour of Assessee
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2011 (5) TMI 1072
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... ... ..... ssment order passed by the Assessing Officer is not only erroneous but is prejudicial to the interest of the revenue. Therefore, we hold that the ld. CIT has rightly exercised his jurisdiction under section 263 of the Act to set aside the assessment order after giving a finding that the assessment order passed by the Assessing Officer is not only erroneous but is prejudicial to the interest of the revenue. However, we hold that the Assessing Officer while framing the fresh assessment order, he will consider such document as may be produced by the assessee and also will accord full opportunity of hearing to the assessee without being influenced by the observation of the ld. CIT. 6. Subject to above observation, we dismiss the appeal of the assessee by confirming the order of ld. CIT. 7 In the result, the appeal of the assessee is dismissed subject to above observation. Order pronounced in the Open Court on 09.05.2011 in the presence of ld. representatives of both the parties.
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2011 (5) TMI 1071
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... ... ..... emium promising big business and success. Once money is mopped up from the public, in all those cases where the companies were created only for the purpose of mopping up hard earned money of public or to befool them. It is found that those big names disappear and in almost every litigation. Directors who formed part of the core of the company and gave promises that the Company would do roaring business quietly disappear from the scene or take plea that they were not responsible for business of the company. 37. The powers of management are vested in directors and they alone can exercise these powers. The only way in which the general body of a company can overrule the board of directors is altering the Articles and refusing to re-elect the directors, whose actions they disapprove. 38. In view of the above discussion, legal proposition, and submissions of both the parties, I find no merit in the instant petition. 39. The same is accordingly dismissed. 40. No order as to costs.
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2011 (5) TMI 1070
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... ... ..... the CIT(A) in confirming the order of the AO for treating the short term capital gains as business income. The learned counsel conceded that this issue is decided against the assessee by the Tribunal in the case of the same assessee, as well as in the case of Smt. Seema Ajay Ranka in which the Tribunal confirmed the order of the CIT(A) in treating the transaction through PMS to be income from business and not as capital gain. Since the Tribunal has already dismissed the appeal of the assessee on the similar issue, therefore, we confirm the order of the authorities below as the issue being covered. No other arguments were advanced before us. In the result, department’s appeal as well as CO are dismissed. 15. In the result, both the department’s appeals are dismissed. CO in the case of Smt. Seema Ajay Ranka is partly allowed for statistical purpose. CO in the case of the assessee, Dr. Ajay Ranka is however dismissed. Order pronounced in Open Court on 31st May, 2011
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2011 (5) TMI 1069
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... ... ..... e recorded by the Foreign Court and such an exercise is not contemplated before a Company Court. As has been held by the Supreme Court in IBA Health (Supra), a Company Court is required to act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the Company to pay a debt which is substantially disputed. What is seen here is that the Petitioner after obtaining the decree from the North Carolina Court, has neither resorted to execution proceeding in the USA nor in India but has chosen to file a winding up petition in India, against the judgment debtor. Bearing in mind the deficiencies earlier noticed, choice of this option appears to be an attempt, for enforcing a debt which is bona fide disputed by the Respondent Company. Accordingly, having regard to the ratio of the decision in IBA Health (Supra), I declare that this proceeding is not maintainable. 32. For the foregoing reasons, the petition is dismissed without any order of cost.
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2011 (5) TMI 1068
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... ... ..... be categorized as financial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifices and thus is not entitled to the notice under Section 19(2) of the SICA. Respondent No. 1 is, thus, liable to be treated as an "unsecured creditor", as has been done by the BIFR, and in view of the scheme which has been duly approved in accordance with law the entitlement is restricted to 10 per cent of the principal amount being in the category of an unsecured creditor. We may notice that it was pointed out to us that the Petitioner has not paid even that amount but then learned Counsel for the Petitioner pointed out that the said amount had to be paid at certain stages and the installment of the same has been brought to the Court by learned Counsel for the Petitioner. 29. The writ petition is accordingly allowed and the impugned order of the AAIFR dated 12.10.2010 is set aside making the rule absolute. 30. Parties are left to bear their own costs.
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2011 (5) TMI 1067
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... ... ..... or misleading the consumers in any manner with respect to the choice of meters available to the consumers; b) cease and desist from anti-competitive practices of limiting the consumers' choice of meters to only the vendors of meters approved by the opposite and directly or indirectly restricting and/ or denying market access to the relevant market of distribution/ supply of Consumer Meters; and c) publish complete and accurate information on their respective websites as required by the relevant laws and take necessary steps to make consumers aware of their right to procure a meter of their own choice. 143. Further, as observed earlier in this order, the conduct of the opposite parties amounting to abuse of their respective dominant positions in the two relevant markets resulted primarily from the non-compliance of the relevant sectoral rules and regulations, hence the concerned sectoral authority may look into this matter and take other necessary actions as it deems fit.
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2011 (5) TMI 1066
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... ... ..... ssuing such a direction as we were informed by the respondents during the course of the hearing that NAV of the scheme has now substantially increased and that no un itholder shall like to exit at the then prevailing NAV which was much lower. Moreover, no other unitholder/investor has come up in appeal before us. This, however, does not mean that the appellants who have been agitating the matter can be deprived of their right to exit the scheme as on the date of the change at the then prevailing NAV. A direction is, therefore, issued to respondents 2 to 5 to comply w ith Regulation 18(15A) of the Regulations qua the appellants and provide them with an exit route. The appellants are also directed to furnish adequate proof of the price at which they exited the scheme. We are issuing this direction in exercise of our powers under Rule 21 of the Securities Appellate Tribunal (Procedure) Rules, 2000 in order to secure the ends of justice. Parties are left to bear their own costs.
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2011 (5) TMI 1065
Challenging the order of H.C for cancelling bail order passes by Session Court - Fake Police Encounter or not - HELD THAT:- this is a very serious case and cannot be treated like an ordinary case. The accused who are policemen are supposed to uphold the law, but the allegation against them is that they functioned as contract killers. Their version that deceased Ramnarayan Gupta was shot in a police encounter has been found to be false during the investigation. It is true that we are not deciding the case finally as that will be done by the trial court where the case is pending, but we can certainly examine the material on record in deciding whether there is a prima facie case against the accused which disentitles them to bail.
The appeals are dismissed, but it is made clear that the trial court will decide the criminal case against the appellants uninfluenced by any observations made in this judgment, or in the impugned judgment of the High Court.
We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.
In the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chen-na bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan durbalaan balvattaraah” - This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker ones, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.
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2011 (5) TMI 1064
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... ... ..... 2005. We also do not think that it will be appropriate to non-suit the appellant on this ground after 8/9 years. As noticed above, we have proceeded on the principle whether there was any error in the decision making process i.e. whether the respondent could have introduced or imposed fresh conditions which were not mentioned in the brochure and when there was no violation of the statutory provisions. The respondent could not have taken into consideration irrelevant material and, therefore, an error has occurred in the decision making process. The aforesaid error in the decision making process is amiable to judicial review and can be corrected in the writ proceedings. 30. In view of the reasoning given above the appeal is allowed and writ of certiorari is issued quashing the letter of rejection dated 16th June, 2001 and mandamus is issued directing the respondent to pay ₹ 19,60,728/- with simple interest 8 per annum from 1st August, 2001 till payment is made. No costs.
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2011 (5) TMI 1063
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... ... ..... Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage..." As we have found in the present case that learned Magistrate had not applied his mind to the merits of the reports filed under Section 173, Cr.P.C., we are of the considered opinion that the exercise of power by the High Court under Section 482, Cr.P.C., was at an interlocutory stage and was not warranted in the facts of this case. 14. In the result, the appeal is allowed and the impugned order dated 25.03.2008 is set aside. The police will forward the further report of the Superintendent of Police, City-II, Ludhiana, to the Magistrate concerned and the learned Magistrate will apply his mind to the police report already forwarded to him and the further report of further investigation forwarded to him and take a final decision in accordance with law after considering the objections, if any, of the appellant against the further report of further investigation.
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2011 (5) TMI 1062
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... ... ..... order dated 6.4.2011 and 8.4.2011 are hereby quashed. The petitioner is entitled to retain his land over the plot under the Order dated 16.7.1987 which is hereby upheld. The respondents are restrained from interfering in the possession of the petitioner over the land in dispute in any manner whatsoever. The entries in favour of the petitioner shall be restored forthwith and the revenue records shall be corrected accordingly. To the Court it appears that the entire action of the respondent authorities is infested with not only malice in fact but malice in law. In view of the harassment that has been caused to the petitioner, This Court finds it necessary to impose costs on account of the conduct of the respondent authorities which is quantified as Rupees one thousand each on the Sub- Divisional Magistrate, the Tehsiidar and the Settlement Officer Consolidation which shall be deducted from their salary and further an entry to that effect shall be made in their service record.
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2011 (5) TMI 1061
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... ... ..... trust and restore the registration granted under sec.12AA." 7. Thus we find that the registration u/s.12AA was restored to the assessee first by the Tribunal vide afforesaid order. Therefore, the very reason for which the assessment orders as passed by the A.O. for the years under consideration were treated as erroneous and prejudicial to the interest of the Revenue by the Ld. CIT has become non-existent. The Revenue could not point out any error in the orders as passed by the A.O. after grant of registration u/s.12AA to the asseee trust by the Tribunal. Therefore, in view of the afforesaid order of the Tribunal the orders of assessment for the years under considerations cannot be treated as erroneous or prejducial to the interest of the Revenue for the reason mentioned in the orders passed u/s.263 by the Ld. CIT. We therefore, set aside the orders of the Ld. CIT and allow the appeals of the assesseee. 8. Order signed, dated and pronounced in the court on 23rd May,2011.
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2011 (5) TMI 1059
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... ... ..... ;ble Supreme Court in the case of TRF Ltd Vs CIT ( 323 ITR 397), the assessee is entitled to deduction in respect of the same. As regards the objection taken by the CIT(A), i.e. the assessee has not obtained the RBI permission for write off of debts, and, therefore, the claim for bad debts is inadmissible, we find the issue is now covered by Hon’ble Delhi High Court’s judgment in the case of CIT vs Nilofer I Singh (309 ITR 233). Their Lordships have held that obtaining RBI’s permission for write off of dues on a foreign importer is an irrelevant factor; so far admissibility of deduction as bad debts, on writing off the same, is concerned. In view of these discussions, as also bearing in mind entirety of the case, we uphold the grievance of the assessee and direct the Assessing Officer to delete the impugned disallowance of bad debts. The assessee gets the relief accordingly. 5. In the result, appeal is allowed. Pronounced in the open court on 31st May 2011.
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2011 (5) TMI 1058
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... ... ..... ed and ground No.1 raised by the revenue in appeal and ground raised in C.O. both are dismissed. 19. As regards the deletion of addition on account of work in progress and closing stock apart from the detailed examination by the C.I.T.(A), we find that once income is estimated by applying net profit theory is separate addition neither on account of work in progress nor on account of closing stock can be separately made unless there is a cogent evidence that the assessee has made investment in these items which are the unaccounted income of the assessee. Since there is no such material record, nor it was pointed out at the time of hearing by the ld.D.R. we, therefore, do not find any infirmity in the order of the C.I.T.(A) in holding both addition on account of work in progress and closing stock. The order of the C.I.T.(A) on both the issues is confirmed. In the result, the appeal of revenue as well as C.O. both are dismissed. Order pronounced in the open court on 13-05-2011.
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2011 (5) TMI 1057
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... ... ..... business income of ₹ 32,10,386/- on total contract receipts of ₹ 6,61,06,399/- which provides rate of 4.85 . In our considered opinion, it would meet the ends of justice if income from contracting business is estimated at 6 as against 8 estimated by the Commissioner of Income-tax (Appeals) on receipt of ₹ 523.5 lakhs. So far as profit on sub-contract and road roller hiring is concerned, we uphold the estimation as adopted by the Commissioner of Income-tax (Appeals). We direct accordingly. 13. Ground No. 4 of appeal that the assessment was barred by limitation has not been pressed by the learned Counsel for the assessee at the time of hearing and, is, therefore, dismissed as not pressed. 14. Ground No. 5 relating to levy of interest under section 234B, & 234C of the Act is consequential in nature and needs no adjudication. 15. In the result, the appeal of the assessee is partly allowed. Decision pronounced in the open court on this 13th day of May, 2011.
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2011 (5) TMI 1056
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... ... ..... ever, we find merit in the alternate ground of the assessee that the Assessing Officer has made addition of ₹ 6,67,564/- erroneously as against ₹ 5,06,414/- which was actually worked out by the assessee as per Assessing Officer’s procedure and observation which were given at page 6 of the paper book filed by the assessee. Under the circumstances, we feel it proper and just to restore the issue to the file of the Assessing Officer to recompute the addition and accordingly, we direct the Assessing Officer to relook the computation made by the assessee as per Assessing Officer’s procedure and observation and recomputed the working if the assessee’s plea is correct. Hence, ground No.6 raised by the assessee is partly allowed. 11. Ground Nos. 7 & 8 is general in nature and no adjudication is required. 12. In the result, the appeal of the assessee is treated as partly allowed for statistical purposes. Order pronounced in the Court on 13. 05. 2011.
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2011 (5) TMI 1055
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... ... ..... re of rubber contraceptives. Here it may also be mentioned that the chart, which has been referred to earlier and which has been extracted from the order of the learned CIT(A) from page 18 of his order, is in respect of the production details of surgeons gloves and not in respect of rubber contraceptives. Thus the assessee has practically stopped the production of rubber contraceptives and has failed to attain the requisite minimum production of surgeons gloves also. In these circumstances it is found that the said decision would not be applicable.” 13. By respectfully following the above order of the Tribunal, we cannot allow this ground of the Revenue. 14. In the result, the appeal of the Revenue for assessment year 2002-03 is partly allowed. 15. To summarize the result, the appeal of the Revenue for assessment year 2001-02 is partly allowed for statistical purposes and that of assessment year 2002-03 is partly allowed. Order pronounced in the open court on 5.5.2011.
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2011 (5) TMI 1054
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... ... ..... assessee has made the adjustment bona fide without having the knowledge that such book entries may render the assessee liable to penalty under section 271D of the Act on account of violation of the provisions of section 269SS of the Act. That there was a reasonable cause and hence no penalty was leviable.” In the present case also we find that on the record there was no evidence to show that the transactions were made for defiance of the provisions. It is not even the case of the revenue that assessee had indulged in tax planning or tax evasion. We further find that the assessee was compelled to make certain book entries to tide over its financial crises particularly in light of the fact that due to its financial difficulties, it was unable to pay its creditors and was also not in position to operate bank account. Such being facts we are not inclined to interfere with the order of the Tribunal though for reasons or same adopted by the Tribunal. Tax appeal is dismissed.
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2011 (5) TMI 1053
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... ... ..... the Tribunal which indicates that it was filed on 11th May, 2010. Even otherwise, the aforesaid averment is supported by an affidavit filed along with this application. 4. We have also heard learned counsel for the parties for some time to have the flavour of the dispute between the parties. We are of the opinion that in a matter like this, the appellant had an arguable case and therefore non-appearance of learned counsel before the CESTAT was serious prejudice to their interests when appellants have been able to show sufficient cause of non-appearance on 12th May, 2010. On this ground alone we set aside the impugned order passed by the Tribunal. We make it clear that we have not made any observations or remarks on the merits of the case. It would be for the Tribunal to give a view after giving hearing to the parties. 5. These appeals are allowed on the aforesaid terms without any order as to costs. The parties shall appear before the Tribunal on 4th August, 2011.
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