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Showing 81 to 100 of 1301 Records
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2014 (4) TMI 1223 - BOMBAY HIGH COURT
Assessment of income - addition on account of profit arising from the sale of 11 flats admeasuring 1943 square metres out of which 50% has been taxed for each of the respondents abovenamed - It was the case of the assessee that the said amount was already assessed in the hands of one Mr. Monserrate (in whose favor construction right was transferred) for earlier assessment year and as such the taxation in the hands of the respondent would amount to double addition.
Held that:- Authorities below have concurrently found on the basis of appreciation of evidence on record that there was no transfer and as such the income could not be taxed in the hands of the respondent herein. The records also reveal that the person to whom flats have been assigned have duly been taxed on such income. As such the income of the said flats were shown in his return. The concurrent findings of fact arrived at by the authorities below based on evidence on record cannot be re-appreciated by this Court in the present appeal u/s 260A of the Income Tax Act unless any perversity is disclosed by the appellant.
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2014 (4) TMI 1222 - ITAT MUMBAI
Estimation of income - determination of percentage of sales - Hawala Income / Hawala Commission - allegations that the transaction with the sister concerns group concerns transactions which are done to inflate sale for obtaining bank facilities on which no commission is earned - During the course of survey, it was found that the assessee is not actually doing business in iron/steel, but is mainly engaged in issuing bogus sale bills without actually delivering the goods, except in a very few transactions.
Held that:- In the first round, the Tribunal has set aside the matter to the file of the Assessing Officer only for the purpose of examining the expenses and insofar as the assessment of net commission is concerned, the same was upheld at 1% of the turnover as determined by the Assessing Officer.
Now, in the third round of proceedings, the assessee has taken a plea that the turnover pertaining to its sister concerns should be excluded from the total turnover for the purpose of estimating the commission income. There is no observation or finding of the Tribunal on this score. Even in the second round of proceedings, the Tribunal has set aside the issue purely for examination of expenditures only. In this order also, there is no whisper with regard to the plea which has been raised by the assessee in this round of proceedings. Once the mater has reached upto the stage of the Tribunal and categorical directions have been given for framing the assessment, the Assessing Officer cannot travel beyond the scope and ambit of the directions of the Tribunal.
Appeal dismissed - Decided against the assessee.
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2014 (4) TMI 1221 - CESTAT AHMEDABAD
Applicability of notification - benefit of N/N. 5/2006-CE or N/N. 2/2008-CE.? - CENVAT Credit - Held that:- On an identical issue, the case of Savana Ceramics, [2014 (9) TMI 104 - CESTAT AHMEDABAD] this Bench has allowed the appeal at the stay stage itself, where it was held that It is now a settled proposition of law that when there are two exemption notifications available for a product then it is upto the assessee to choose the exemption notification more beneficial to him - appeal allowed - decided in favor of appellant.
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2014 (4) TMI 1220 - CESTAT NEW DELHI
Waste - Whether the appellant is liable to pay 10% of the value of the bagasse emerged as a waste product during the manufacture of molasses and sugar?
Held that:- Inasmuch as bagasse is an inevitable waste arising during the course of manufacture and cannot be held to be a final marketable excisable product there is no requirement of payment of 10% amount in terms of the provisions of Rule 6(3)(1).
The Board’s Circular No. 904/24/2009-CX, dated 28-10-2009, stands struck down by Allahabad High Court in the case of Balrampur Chini Mills v. Union of India [2013 (1) TMI 525 - ALLAHABAD HIGH COURT], it stands held that the bagasse does not attract the provision of Rule 6(3)(1) of Cenvat Credit Rules.
Appeal allowed - decided in favor of appellant.
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2014 (4) TMI 1219 - ANDHRA PRADESH HIGH COURT
CENVAT Credit - the decision in the case of DELOITTE SUPPORT SERVICES INDIA PVT. LTD. VERSUS C.C.E., HYDERABAD-IV [2013 (10) TMI 1483 - CESTAT BANGALORE] contested - Held that:- There is no reason to interfere with the impugned order as the impugned order has been passed relying on two High Court decisions - appeal dismissed.
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2014 (4) TMI 1218 - ITAT MUMBAI
Rental income - nature of income - to be treated as Business income or income from house property - whether depreciation should be allowed - Held that:- Assessee is engaged in the business of Services, leasing and business Centre facilities, Maintenance & Running of Guest House - thus income of the assessee should be assessed under the head income from business and it should be allowed expenses incurred by it in carrying out its business - Depreciation claimed by the assessee has also been allowed by the Tribunal - FAA has granted relief to the assessee,in pursuance of the orders of the Tribunal - hence respectfully following the orders of the Tribunal for earlier years and confirming the order of the FAA,we decide effective ground of appeal against the AO - Decided in favor of assessee.
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2014 (4) TMI 1217 - ITAT HYDERABAD
Application for registration u/s 12AA rejected - nature of activities of the assessee as of commercial nature - scope of enquiry at registration stage - Held that:- The activities of the assessee-institution, which is meant to promote and protect the interests of the Grain and Seed Merchants, who are its members, cannot be said to be activities of a commercial nature, and they fall within the ambit of activities of ‘general public utility’.
For the financial affairs of the assessee, it is evident from the material on record that the donation to the Chief Minister’s Fund having been made by the assessee through a bank account of the assessee, from out of the receipt of donations from various members and others, numbering as many as 128, and as such, it cannot be said that there was any misuse of funds by the assessee. In respect of small amounts of donations received from many as many as 128 persons also, assessee claims to have maintained some record, which was produced before the Director of Income-tax(Exemption). No merit in the observations of the Director of Income-tax(Exemption) with regard to misuse of funds
Allahabad High Court in the case of CIT V/s. Red Rose School (2007 (2) TMI 575 - ALLAHABAD HIGH COURT) the scope of enquiry contemplated while granting registration under S.12AA cannot extend to misuse of fund or earning profit by the assessee, as that part would be taken care of by Sections 11 and 12, while granting exemption under those sections. - Decided in favour of assessee.
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2014 (4) TMI 1216 - CESTAT BANGALORE
Refund of CENVAT credit - various input services - denial on account of nexus - Held that: - without a building, no manufacture can take place and therefore the service relating to building lease rent can be definitely said to be in or in relation to the manufacture - all the services can be said to be in or in relation to the manufacture or are covered by the definition of input service - refund allowed - appeal dismissed - decided against Revenue.
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2014 (4) TMI 1215 - ITAT PUNE
Penalty proceedings u/s 271(1)(c) - Nature of land sold - assessee claimed that the land sold and subsequently purchased "along with development rights is agricultural land and is liable for capital gain tax - AO rejected the claim as the land in question at Mohamawadi is within 8 Kms. of Pune Municipal Corporation - LTCG OR STCG - Held that:- The assessee filed the return of income on 31st Dec., 2007 claiming the year of acquisition of the asset as 1999 instead of the correct year as 2004. The notice issued under s. 143(2) of the Act dt. 11th Sept., 2008 was issued and served on the assessee on 16th Sept., 2008 and the final order was passed on 30th Dec, 2009. Even though the period of holding of the asset sold was for less than 36 months and therefore the income does not fall within the long-term capital gain, we find the assessee never filed any revised return before the issue of notice under s. 143(2) Further, the assessee before the CIT(A) vide letter dt. 20th Jan., 2012 had stated that he had voluntarily accepted for the agreed addition in respect of deduction wrongly claimed by his consultant.
Thus the asset purchased in the year 2004 has been taken as 1999 to treat the profit on sale of the asset as long-term capital gain and assessee has neither filed any revised return nor brought the mistake to the notice of the AO before the same was detected. We set aside the order of the CIT(A) and confirm the penalty levied by the AO. Grounds raised by the Revenue are accordingly allowed.
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2014 (4) TMI 1214 - ITAT KOLKATA
Carry forward of short-term capital loss - assessee had not claimed any such loss in the return of income - Held that:- It is not disputed by the Revenue that the loss arose to the assessee on account of surrender of single premium equity linked insurance policies, which were used for making investments in Mutual Fund. Revenue has also not disputed the claim of assessee that resulting loss on account of such surrender of single premium insurance policy could be treated as short-term capital loss. It’s only grievance is that assessee had not made such a claim before the ld. CIT(Appeals). It is true that assessee had not made the claim in her return of income. However, it is also a fact that assessee had endeavoured to set off the loss against her interest income, which was not allowed by the Assessing Officer. Hence, it is not that there was no claim of loss at all. We are, therefore, of the view that ld. CIT(Appeals) acted well within his powers, when he directed the Assessing Officer to allow the carry forward of short-term capital loss - Decided against revenue
Disallowance of interest - Held that:- The profits were sufficient to meet the advance tax liability and the profits were deposited in the overdraft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of the business.CIT(Appeals) was justified in allowing the interest paid on loans to be deducted from the interest earned. - Decided against revenue
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2014 (4) TMI 1213 - DELHI HIGH COURT
Oppression and mismanagement - violation of the SEBI Act, Take Over Regulations, PFUTP and DIP Guidelines - Held that:- The fact that some of the acts complained of may also violate the SEBI Act or Regulations made thereundere would not prevent the respondent from pursuing the remedies under Sections 397 and 398 of the Act. To hold otherwise would mean that the respondent has to elect whether he can complain against statutory violations under the SEBI Act or initiate proceedings under Sections 397-398 of the Act. The two proceedings as discussed are completely different in their nature and occupy a different and distinct jurisdictional field. Thus unable to accept that the two proceedings are mutually exclusive.
Whether the proceedings filed by respondent no. 1 are an abuse of process of law? - Held that:-Apart from the conclusion that the SEBI Act and the statutory regulations and guidelines framed thereunder have not been violated, it is doubtful whether any other observations made by SEBI would preclude respondent no.1 from ventilating his grievance before the CLB. The order dated 25.04.2012 passed by SAT seems to imply that respondent no.1 is at liberty to agitate all his grievances before the CLB. Even if it is assumed that any question raised before the CLB is concluded between the parties in proceedings before SEBI, the same would not prevent respondent no.1 from pursuing its petition before the CLB. It is not necessary for this Court to decide whether any grievance raised by respondent no.1 before the CLB is barred by the principles of issue estoppel and it will be open for the parties to place their contentions with respect to this aspect before the CLB. And, the CLB shall consider the same in accordance with law. The present appeal is dismissed as being devoid of any merit
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2014 (4) TMI 1212 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Creation of artificial volumes - Allegations against the appellant were mainly that he made misleading corporate announcement in March 2005 regarding preferential / rights issue with a view to lure investors - Guilty of violating PFUTP Regulations, SAST Regulations and PIT Regulations - Held that:- As during the proceedings before this Tribunal, the appellant was granted leave to obtain and submit a signature comparison report from a Forensic expert. Accordingly, the appellant furnished a signature comparison report dated June 18, 2013. The respondent also filed reply / comments in response to the said report. During the course of hearing, it was felt that in the facts and circumstances of the case, a comparison of the appellant’s signature would be required to ascertain authenticity of his alleged signature on the transfer deed. This factual analysis may also require additional evidence. It would be, therefore, appropriate to remand this matter to the learned adjudicating officer for fresh hearing and adjudication.
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2014 (4) TMI 1211 - SUPREME COURT
Eligibility of auction - permissible for the Port Trust to terminate the tender - Held that:- As already pointed out that can hardly be a ground to test the validity of a decision in administrative law. For the sake of argument, even if you presume that there a concluded contract, mere termination thereof cannot be dubbed as arbitrary. A concluded contract if terminated in a bonafide manner, that may amount to breach of contract and certain consequences may follow thereupon under the law of contract. However, on the touch stone of parameters laid down in the administrative law to adjudge a decision as are arbitrary or not, when such a decision is found to be bonafide and not actuated with arbitrariness, such a contention in administrative law is not admissible namely how and why a concluded contract is terminated. We, therefore, reject this contention of the appellant.
Doctrine of promissory estoppel applicability - Held that:- If there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Merely because the resolution was announced for a particular period, it did not mean that the Government could not amend and change the policy under any circumstances. If the party claiming application of doctrine acted on the basis of a notification, it should have known that such notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest. This contention of the appellant, therefore, is equally devoid of any merits.
Concluded contract between the parties - Held that:- When the LOI is itself hedged with the condition that the final allotment would be made later after obtaining CRZ and other clearances, it may depict an intention to enter into contract at a later stage. Thus, we find that on the facts of this case it appears that a letter with intention to enter into a contract which could take place after all other formalities are completed. However, when the completion of these formalities had taken undue long time and the prices of land, in the interregnum, shot up sharply, the respondent had a right to cancel the process which had not resulted in a concluded contract.
We again emphasise that the issue of the argument of their being a concluded contract is raised in a petition filed under Article 226 of the Constitution and not by way of suit. The issue whether there was a concluded contract and breach thereof become secondary and is examined by us with that limited scope in mind. In such proceedings main aspect which has to be is as to whether impugned decision of the Port Trust was arbitrary or unreasonable. It is also important to remark that in a given case even if it is held that there was a concluded contract, whether specific performance can be ordered or not would be a moot question in writ proceedings. The appellant took the calculated risk in not going to the civil court and choosing to invoke extraordinary jurisdiction of the High Court, which is also discretionary in nature. Appeal dismissed.
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2014 (4) TMI 1210 - KARNATAKA HIGH COURT
Validity of Section 28-A(4) of the Karnataka Cooperative Societies Act, 1959, as substituted by the amended Act dated 11.02.2013 - retrospectivity or prospectivity - Held that:- having regard to the language employed in the Amending Act No. 3 of 2013 and the Act of 2011 (97th Amendment to the Constitution) we are satisfied that by necessary implication/intendment the amended provision would operate retrospectively and as a result thereof, term of all the boards shall stand extended till expiry of the period of five years from the date of their election. Sub-section (4) of Section 28-A of the Act has retrospective operation.
The members of the existing boards shall continue to hold office till expiry of the period of five years from the date of their election and no administrator can be appointed till then.
The order of the learned single Judge dated 6th March 2014 disposing of the writ petitions from which these appeals arise is set-aside. The elected boards of the societies shall continue to hold office till expiry of the period of five years from the date of their elections and till then, no administrator shall be appointed and the elected board shall take charge only on expiry of the term of office of the members of the board. In view thereof, the communication dated 29.01.2014, impugned in the writ petitions is rendered ineffective. The writ appeals are accordingly disposed of in terms of the opinion expressed by us in this judgment.
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2014 (4) TMI 1209 - GUJARAT HIGH COURT
Currency notes seized by the police during the search and seizure - Income Tax authorities entitlement to receive tax on the seized amount, but currency notes are not to be handed over to the authority - Held that:- Considering the provisions of Sections 132A(2), 132B and 153A of the Income Tax Act, 1961 and the case relied by the learned Senior Advocate for the applicant – Department, I am of the view that the impugned order is contrary to the provisions of the Income Tax Act, 1961 and currency notes seized by the police during the search and seizure in exercise of powers under Prohibition of Gambling Act, deserves to be handed over to the Income Tax Department. Accordingly, order dated 28.06.2013 passed by the learned Metropolitan Magistrate, Court No.22, Ahmedabad in Misc. Application No.108 of 2013 is hereby quashed and set aside and the Incharge Police Officer of Ellisbridge Police Station, Ahmedabad shall hand over muddamal being currency notes of ₹ 4,78,356/and ₹ 36,30,990/to the concerned officer of the petitioner – department.
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2014 (4) TMI 1208 - ALLAHABAD HIGH COURT
Recovery of alleged dues - it is alleged that cheques were issued but were not honoured as payment was stopped by the drawers - Held that: - it would not be appropriate, in our view, to entertain the petition under Article 226 of the Constitution and pass an order, that would essentially be a money decree. At the least, the defence would raise issues on which evidence would have to be adduced before a civil court. Quite independently of that, in a matter of this nature, remedies are available either in the form of a suit under Order XXXVII of the Code of Civil Procedure, 1908 or in the form a complaint under Section 138 of the Negotiable Instrument Act, 1888 - we decline to entertain this petition and relegate the petitioner to the remedy available in law - petition dismissed.
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2014 (4) TMI 1207 - ALLAHABAD HIGH COURT
Refund of security deposit which was furnished in pursuance of a contract awarded to the petitioner- Held that: - reliefs which are claimed are purely in terms of money decree for the payment of work allegedly due in respect of bills submitted for execution of certain work orders. Such reliefs cannot be granted in exercise of a writ jurisdiction under Article 226 of the Constitution - petition dismissed.
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2014 (4) TMI 1206 - SUPREME COURT
Offence under Section 120-B of the IPC read with Section 12 of the Prevention of Corruption Act, 1988 - legality of a sting operation prompted by overwhelming public interest - murky deeds in seats of governmental power - Held that: - sting operations conducted by the law enforcement agencies themselves in the above jurisdictions have not been recognized as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered.
A crime does not stand obliterated or extinguished merely because its commission is claimed to be in public interest. Any such principle would be abhorrent to our criminal jurisprudence. At the same time the criminal intent behind the commission of the act which is alleged to have occasioned the crime will have to be established before the liability of the person charged with the commission of crime can be adjudged. The doctrine of mens rea, though a salient feature of the Indian criminal justice system, finds expression in different statutory provisions requiring proof of either intention or knowledge on the part of the accused. Such proof is to be gathered from the surrounding facts established by the evidence and materials before the Court and not by a process of probe of the mental state of the accused which the law does not contemplate. The offence of abetment defined by Section 107 of the IPC or the offence of criminal conspiracy under Section 120A of IPC would, thus, require criminal intent on the part of the offender like any other offence.
A journalist or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment under Section 12 or that of conspiracy under Section 120B IPC. Non applicability of the aforesaid provisions of law in such situations, therefore, may be ex-facie apparent. The cause of journalism and its role and responsibility in spreading information and awareness will stand sub-served. It is only in cases where the question reasonably arises whether the sting operator had a stake in the favours that were allegedly sought in return for the bribe that the issue will require determination in the course of a full-fledged trial. The above is certainly not exhaustive of the situations where such further questions may arise requiring a deeper probe. As such situations are myriad, if not infinite, any attempt at illustration must be avoided.
Appeal dismissed - decided against appellant.
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2014 (4) TMI 1205 - ITAT, PUNE
Addition on account of capital gain - the addition is solely based on valuation of report called for u/s. 55A(a) - whether reference to DVO for valuing the property for valuation u/s. 55A was without jurisdiction? - Held that:- Up to 01.07.2012, the Assessing Officer could make reference to Valuation Officer under clause (a) of section 55A in case of value of asset claimed by assessee in the opinion of Assessing Officer is less than market value. In the case under appeal, the value of land as on 01.04.1981 as per opinion of the Assessing Officer is more than market value claimed by the assessee and hence, the Assessing Officer cannot refer the property for valuation by Valuation Officer under clause (a) of section 55A of the Act. For similar reason as above, the Assessing Officer could not refer the property for Valuation Officer under clause (b)(i) of section 55A of the Act. The Assessing Officer could not refer the property for valuation by DVO under clause (b)(ii) of section 55A as the assessee has adopted the value as on 01.04.1981 on the basis of valuation report of government approved valuer Shri Atul Thombare
The stand of the assessee is fortified from the amendment made to section 55A w.e.f. 01.07.2012. In order to remove the above hurdle for referring the property for valuation where as per Assessing Officer, the value of the property is different from the value adopted by assessee, the legislature has replaced the words "is less than fair market value" by the word "is at variance with its fair market value" by the Finance Act, 2012 w.e.f. 01.07.2012. There is nothing before us to suggest that the amendment is retrospective. In view of above facts and discussion including the amendment to section 55A, the CIT(A) rightly held that the Assessing Officer was not justified in making addition by referring the property for value by DVO u/s. 55A - Decided in favour of assessee.
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2014 (4) TMI 1204 - THE ITAT, HYDERABAD BENCH, HYDERABAD
Claim of depreciation on coal fired pressure boiler restricted to 50% - put to use - Held that:- The fact brought out on record relating to consumption of diesel and electricity up to January 2009 and post January 2009 clearly establishes the fact that the cogeneration plant has commenced productions in February 2009 and not in September 2008 as claimed by the assessee. The ledger account of the assessee also clearly mentions that the assessee has paid hotel bills of Mr. Lojet towards his visit on 02.03.2009 in connection with turbine erection. If as per assessee's version, the cogeneration plant has started production in September 2008, there is no reason why Mr. Lojet should pay visit for erection of turbines on 02.03.2009. As the assessee has failed to substantiate its claim with conclusive evidence that the cogeneration plant was put to use for the purpose of assessee's business on or before September 2008, we are unable to accept the assessee's claim of 100% depreciation on the cogeneration plant. Accordingly, we uphold the order of the CIT(A). The ground raised by assessee is dismissed.
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