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Showing 81 to 100 of 1230 Records
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2014 (5) TMI 1153
Scheme of Amalgamation - Held that:- In view of the approval accorded by the Shareholders and Creditors of the petitioner Company, representations/ reports filed by the Regional Director, Northern Region and the official liquidator, attached with this court to the proposed scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently sanction is hereby granted to the Scheme of Arrangement under Section 391 and 394 of the Companies Act, 1956.
The petitioner companies shall comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from receipt of the same.
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2014 (5) TMI 1152
Re-trial of the case on account of absence of the essential prosecution papers - conviction under Section 148, 302/149 and 307/149 I.P.C - Held that:- We find ourselves unable to decide this appeal on merits. It is pertinent to mention that learned counsel for the appellants insisted time and again when the appeal was taken up for hearing that in absence of the prosecution papers, he will not be able to make any submission on merits of the case for which availability of the prosecution papers are essential.
As discussed above, re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report, Chik FIR, site plan, inquest report, post mortem examination report, charge sheet, case diary, injury reports etc. Even affidavit filed by Sri N. Kolanchi, Superintendent of Police, Pilibhit dated 13.02.2014 unambiguously discloses information regarding the period for preservation of the prosecution papers and consequent thereto weeding out of the same after lapse of the stipulated period. In para 9 of the affidavit, it has been disclosed that the relevant prosecution papers have been weeded out due to which the deponent is handicapped to reconstruct the documents pertaining to the present case. In view of the above particular circumstances, the order of re-trial will not serve any purpose after gap of around 35 years when the incident took place on 12.05.1978.
As per the settled principles of criminal jurisprudence, every accused carries with him presumption of innocence even at appellate stage. Therefore, as per guidelines laid down in the case of Abhai Raj (2004 (3) TMI 774 - SUPREME COURT ), we conclude that the lower court judgment of conviction and sentence dated 29.01.1980 is liable to be set aside.
Accordingly, the appeal is allowed. The impugned judgment and order dated 29.01.1980 is hereby set aside and the present surviving appellants namely Lalman, Ram Swaroop and Chhotey Giri are acquitted of offences with which they have been charged. Their bail bonds are cancelled and sureties are discharged.
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2014 (5) TMI 1151
Unexplained loans and cash credits - absence of any evidence or material from the side of the assessee - Held that:- The books of accounts were neither produced before the assessing officer nor before CIT(Appeals). The Tribunal also noted that no steps were taken in bringing evidence on record, even before the Tribunal and for the purpose of additional evidence, there was absence of any application. Such non-cooperative attitude of the appellant led the Tribunal not to accede to the request of the appellant. Considering these glaring facts coupled with the fact that these findings are completely based on the factual matrix and no perversity could be noticed in such findings which would have given rise to substantial question of law. - Decided against assessee
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2014 (5) TMI 1150
Addition towards Transportation Charges - unserved notices as parties were not available on the addresses given by the assessee - genuine expenditure - Held that:- It is not disputed that the assessee had furnished proof of actual performance of transportation work, lifting of waste, payments of TDS, full addresses of the parties, confirmation of account with PAN and mode of payment. By giving such details, in our opinion, assessee had discharged its initial burden of proof. If AO had doubt about the genuineness of transaction or payment, he should have made further inquiries and should have confronted the assessee with the result of such inquiries. Assessee was awarded contract by MCGM for lifting solid waste and was paid for it by the corporation. It had hired sub-contractors to carry out job assigned by the Municipal Corporation. As per the terms of contract assessee had to get the vehicles used for lifting wastage with RTO. Inquiry with RTO/ MCGM would have brought truth in light. It is true that letter issued by the AO remained unserved, but that factor alone should not result in addition of Rupees more than two crores. Non service of notices issued by the AO was the starting point to investigate the matter further. But, the AO chose to stop there and ignored the documentary evidences produced by the assessee. In these circumstan -ces, we are of the opinion that the order of the FAA does not suffer from any legal infirmity - Decided in favour of assessee
Addition u/s. 68 - unexplained unsecured loans - establish the capacity, genuineness and proper identity of creditors - Held that:- Two of the creditors not only had appeared before the AO, but had also admitted of giving loan to the assessee. AO has not pointed out any abnormality in their statements. In these circumstances, there was no reason to make addition for the sums appearing in their names. From the order of the FAA it is clear that Shantiben Shah and Charmi A Mehta had capacity of advancing loans to the assessee and they were regular tax payees. Thus, FAA has conclusively proved that identity of the creditors, genuineness of the transaction and capacity to advancing loan cannot be doubted. - Decided in favour of assessee
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2014 (5) TMI 1149
Proper party to the suit - deleting the defendant / respondent no.2 from the array of defendants in the suit, holding the defendant / respondent no.2 to be neither a necessary nor a proper party to the suit - termination of the appellant / plaintiff’s service with the defendant no.1 by the defendant no.2 - whether because 100% of the shares of the defendant no.1 Company are held by the defendant no.2, the defendant no.2 is a necessary party?
Held that:- First of the aforesaid argument is against the very grain of Company Law. A Company is a distinct legal entity from its shareholder, even if all the shares are held by one person only. Thus, merely because the defendant no.2 holds 100% of the shareholding of the defendant no.1 Company, would not make the defendant no.2 liable for the dues and acts of the defendant no.1. Admittedly both defendant no.1 and defendant no.2 are separate legal entities. No case for piercing of the corporate veil is made out. The Supreme Court in Vodafone International Holding B.V. Vs. Union of India (2012 (1) TMI 52 - SUPREME COURT OF INDIA ) has held that a Company is a separate legal persona and the fact that all its shares are owned by one person or by the parent Company has nothing to do with its separate legal existence.
Whether the termination of the services of the appellant / plaintiff could have been done by the defendant no.1 Company only and not by the defendant no.2.? - Held that:- The second argument is equally ambiguous. Even if it is to be presumed that it is the defendant no.2 which has terminated the services of the plaintiff and which the defendant no.2 could not have done, being not the employer of the appellant / plaintiff, that would only make the termination to be illegal but would not make the defendant no.2 Company with whom the appellant / plaintiff had no privity, liable. The claim if any of the appellant / plaintiff for such illegal termination would remain against the defendant no.1 Company only and not against the defendant no.2.
Plaintiff during the hearing has also argued that the appellant / plaintiff was reporting to the defendant no.2. Even if that be so, merely because an employee, in the course of employment, is required to report to another instead of to the employer, would not make such another liable for any claims arising from such employment. No cause of action against the defendant no.2 is disclosed. Appeal dismissed.
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2014 (5) TMI 1148
Pre-deposit of the proportionate interest due - When the issue of compliance is taken up today there is neither a representation on behalf of the appellant nor proof of pre-deposit of compliance of the order - appeal dismissed.
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2014 (5) TMI 1147
Re-trial of the petitioner permissible as already been acquitted - Section 300 Cr.P.C - NDPS Act - Person once convicted or acquitted not to be tried for same offence - learned counsel appearing for the petitioner was strenuously arguing that because, the present petitioner has been acquitted, he could not be re-tried - Held that:- I may point out that the above contention does not appear holding good. As soon as the very trial has been found not as per the provisions of the law and, as such, outside the jurisdiction of the competent court, the order of acquittal could be of no effect. Merely, because a Sessions Judge was a Special Judge was not creating competence in him to try the offence. It has always to be considered in light of the fact that no other trial procedure could be followed except the set of provisions contained in Chapter-XVIII in the light of Section 36C of the NDPS Act while trying an accused or an offence. As soon as the learned Special Judge-cum-Sessions Judge, Muzaffarpur was found having not followed the provision of Chapter-XVIII Cr.P.C., the trial was very much in inherent lack of jurisdiction and, as such, the acquittal could not be supported and it could not accrue any benefit of such acquittal to any accused like the present petitioner. Present petition lacks merit and the same is dismissed.
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2014 (5) TMI 1146
CENVAT credit - duty paying invoices - debit notes issued by the service provider - Held that: - Examination of record reveals that the decision taken by the adjudicating authority does not show the consideration of documents on record and decision arrived by him was not proper and legal - matter remanded to the adjudicating authority to consider their documents on record - appeal allowed by way of remand.
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2014 (5) TMI 1145
Addition made u/s 94(7) - profit earned by the assessee from the sale of shares held for a period of less than six months - short term capital gain or business income - treated by the AO as the business income - Held that:- It is observed that the profit earned by the assessee from the sale of shares held for a period of less than six months has been treated by the ld. CIT(A) as short term capital gain in the hands of the assessee and as submitted by the ld. counsel for the assessee, the department has not filed an appeal before the Tribunal against the order of ld. CIT(A) on this issue. It therefore, follows that the entire profit/loss arising to the assessee on sale of shares has been finally taxed in the hands of the assessee under the head “ capital gains” and consequently in addition/disallowance u/s 94(7) of the Act is liable to be made under the head “capital gains” as rightly claimed by the assessee and not under the head “profit and gains of the business or profession” as held by the AO and ld. CIT(A).
We, therefore, set aside the impugned of the ld. CIT(A) and direct the AO to make addition/disallowance u/s 94(7) of the Act under the head “capital gains”. - Decided in favour of assessee.
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2014 (5) TMI 1144
CENVAT credit - consultancy and professional fees paid by the appellant to Chartered Accountants - Held that: - It is also a settled law that the services rendered by the service provider can be classified in the hands of the jurisdictional authorities who are supposed to classify and reclassify the services rendered, the authorities at the recipient’s end in this case reclassified the services rendered and denied the Cenvat credit - appeal allowed - decided in favor of appellant.
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2014 (5) TMI 1143
Gujarat Town Planning and Urban Development Act, 1976 -Whether Section 40(3)(jj)(a) of the Gujarat Town Planning and Urban Development Act, 1976 would be operative for the land other than the land covered by Section 20(2) of the Act 1976, though upheld the validity of Section 40(3)(jj) of the Act 1976? - whether after the lapse of the period for reservation as per Section 20(2) of the Act 1976, can the said land be again acquired by resorting to the provisions of Section 40 of the Act 1976?
Section 40 of the Act 1976 contains the words “regard being had” and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.
It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.
In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.
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2014 (5) TMI 1142
Reference to the DVO u/s. 55A - valuation of the registered valuer of the assessee should be accepted and not the valuation given by the DVO - Held that:- Assessing Officer has no power to make the reference to the DVO for the A.Y. 2008-09 by invoking u/s. 55A of the Income-tax Act for determining fair market value as on 01-04-1981. Moreover, the issue has been decided in favour of the assessee by the jurisdictional High Court in the case of CIT Vs. Puja Prints [2014 (1) TMI 764 - BOMBAY HIGH COURT]. We, therefore, find no reason to interfere with the order of the Ld. CIT(A). Accordingly, the same is confirm and grounds taken by the Revenue are dismissed.
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2014 (5) TMI 1141
Validity of assessment u/s 153C - alternate remedy - availability of statutory remedies - Held that:- We are of the opinion that at this stage no interference is called for. Section 153C as is well known, pertains to assessment of income of persons other than one who is subjected to search. Subsection (1) of section 153C provides that where any Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belonged to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A of the Act.
Section 158BD of the Act makes similar provisions for block assessment of undisclosed income of persons other than the searched person. Under the circumstances, the petitioner’s contention that notice under section 153C of the Act could not have been issued after search operations were over cannot be accepted.
We are not inclined to entertain the writ petition in view of the availability of statutory remedies. Since we relegate the petitioners to remedies under the statute, at this stage, we express no opinion on the validity of the reference.
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2014 (5) TMI 1140
Disallowance of claim on account of additional cost of land - poof of obligation as per the development agreement to make any such payment - Held that:- We find the Assessing Officer has not doubted the payment to the land owners but disallowed the amount of ₹ 18 lakhs on the ground that assessee was under no obligation as per the development agreement to make any such payment. The existence of a Civil Suit on the impugned land because of which the development work on the land could not be carried out for a long time was within the knowledge of the Assessing Officer. There is no dispute to the fact that the payment of ₹ 18 lakhs has been made on 17-07-2007 although the development agreement was dated 17-05-2005 and the payment have been made by crossed account payee cheque to the land owners. In view of the above and in view of the detailed reasoning given by the Ld.CIT(A) we find no infirmity in his order.
Addition u/s 40(a)(ia) - retrospectivity - Held that:- The assessee has made a new legal argument that the Finance Act, 2010 has amended the first proviso to section 40(a)(ia) w.e.f. 01-04-2010 and it has been held by various judicial authorities that such amendment is retrospective in nature. It is the submission of the Ld. Counsel for the assessee that the second proviso to section 40(a)(ia) was inserted by the Finance Act, 2012 w.e.f. 01-04-2013 wherein it is stated that disallowance u/s.40(a)(ia) of the Act need not be made if the assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the I.T. Act., therefore, this should also be held as retrospective since it has been introduced to eliminate unintended consequences which may cause undue hardship to the tax payers.
We find some force in the above argument of the Ld. Counsel for the assessee. We find the Cochin Bench of the Tribunal in the case of Antony D. Mundackal (2013 (12) TMI 67 - ITAT COCHIN ) relied on by Ld. Counsel for the assessee, had an occasion to decide an issue in the light of the above argument and has restored the issue to the file of the Assessing Officer with certain directions. Thus we restore this issue to the file of the Assessing Officer with a direction to examine the above contention of the assessee and decide the issue afresh and in accordance with law.
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2014 (5) TMI 1139
Identity theft - It is the petitioner’s case that it received the Code only on 17th September, 1997 and during the interregnum one Mr. A.K. Singh claiming himself to be Proprietor of M/s. Vikas Exports and after giving the same address as that of the petitioner’s firm opened a current account bearing No. 49057 with the Oriental Bank of Commerce, Air Force Station, Palam, New Delhi branch and then effected certain exports and availed drawback against the same Held that: - This Court finds it strange that while the Department did not initiate any criminal proceeding against Mr. A.K. Singh, it now wants to penalise the petitioner who is also a victim of the fraud - petition allowed - recovery proceedings initiated against petitioner is dropped - decided in favor of petitioner.
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2014 (5) TMI 1138
MAT - deduction of provision for diminution in the value of investment while computing the book profit under Section 115JB - Held that:- In a case where the assessee is reducing the diminution in the value from the current asset’s value of the company, then also credit entries are passed in the account of the current assets to reduce the value and there also the corresponding debit is made to the Profit & Loss account thereby reducing the profit or increase the loss of the company. Whether it is shown as a separate provision or it is reduced from the current asset’s value, the corresponding and consequential effect is to reduce the profit of the assessee or increase the loss of the assessee by debiting to Profit & Loss account. As far as the credit entry is concerned, it can either be shown as a separate provision on the liability side of the balance sheet or reduce from the current asset’s value shown in the asset side of the balance sheet. This is only an accounting format. It does not change the character of the amount sought to be deducted by the assessee. It does not affect the accounting/financial result. It always affects the income or loss aspect of the assessee.
Therefore, only for the reason that the assessee has not created a separate provision, but only reduced the diminution in the value of investment from the current asset’s value, does not make any difference and the adjustment made by the assessee is equally covered by the retrospective amendment brought in by the Finance Act, 2009. Commissioner of Income Tax (Appeals) is justified in confirming the order of the Assessing Officer for adding back the diminution in the value of investment to the book profit of the assessee for the purpose of Section 115JB.
Levy of interest under Sections 234B and 234C - Held that:- Hon’ble Madras High Court in the case of CIT v. Revathi Equipment Ltd. (2007 (6) TMI 154 - MADRAS HIGH COURT) has held that when an assessee could not have foreseen liability caused on account of a subsequent legislative amendment, the assessee cannot be liable for interest on the differential amount of tax in the reason that the assessee could not have paid the differential amount of tax for the relevant previous year. Here also, the income escaping assessment was passed because of the retrospective amendment brought in by Finance Act, 2009. The additional liability has been generated only in the assessment. It was not possible for the assessee to foresee the retrospective amendment. So, it was not possible for the assessee to pay advance tax for the relevant previous year against the differential demand of tax that would arise in future. Therefore, we delete the liability of interest made under Section 234B and 234C of the Income-tax Act, 1961.
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2014 (5) TMI 1137
Disallowance of claim of deduction u/s.80IB(10) - Gram Panchayat is not a local authority competent to issue approvals and completion for the housing project - Held that:- We hold that the concerned Gram Panchayat is a competent local authority for the purpose of issuing approval and completion certificates for claiming deduction u/s.80IB(10) in respect of the profit from sale of eligible flats in project in question. The Assessing Officer is directed accordingly. See Shri Krishna Haribhau Lohokare, Prop. Harikrupa Builders Versus ITO, Ward-4 (5) , Pune [2013 (2) TMI 800 - ITAT PUNE ]
Road area not part of the project and hence the area of the land was less than one acre - Held that:- This issue is covered in favour of assessee by the order of ITAT, Pune ‘B’ Bench in Bunty Builders Vs. ITO [2010 (2) TMI 791 - ITAT, Pune ] to hold that the area of amenity space compulsorily required to be handed over to Municipal Corporation constitutes an integral part of housing project and hence, is required to be considered while calculating the one acre area of plot of land of housing project for the purpose of deduction u/s.80IB(10). So, the assessee is eligible for claiming deduction on this account as well. The Assessing Officer is directed accordingly. - Appeal decided in favour of assessee
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2014 (5) TMI 1136
Disallowance of administrative expenses - Held that:- In the present case, it is an admitted fact that the assessee is a public limited company, so there cannot be a personal use on account of telephone and trunk call expenses. In the instant case, the Assessing Officer did not point out any instance where the expenses relating to travelling and conveyance were unreasonable or excessive or proved to be bogus. The Assessing Officer himself accepted 90% of the rental expenses as allowable and merely on the basis that there was an increase in the rental expenses as compared to earlier years it cannot lead to the disallowance of expenses in part. In the present case, the Assessing Officer disallowed the membership and subscription expenses merely on this basis that the proper vouchers had not been maintained but no defect was pointed out and no specific instance of claim being bogus and unreasonable or excessive had been pointed out, therefore, disallowance made by the Assessing Officer was rightly deleted by the Ld. CIT(A). We do not see any infirmity in the order of the Ld. CIT(A) on this issue. - Decided against revenue
Disallowance of repairs and maintenance of plant and machinery - Held that:- In the present case, it is an admitted fact that turnover of the assessee increased in comparison to the earlier years and the Assessing Officer had not pointed out any specific instance of bogus, unreasonable or excessive expenses relating to repairs and maintenance of plant and machinery. He had also not pointed out that the expenses were not incurred for business purposes or those were personal in nature, therefore, the disallowance made on the basis of surmises and conjecture is not tenable and the Ld. CIT(A) rightly deleted the same - Decided against revenue
Disallowance of manufacturing expenses - Held that:- Assessing Officer made the adhoc disallowance without quantifying any of the expenses, which was not incurred for the business purposes. The Assessing Officer also not pointed out which of the item was not supported by proper bills and vouchers, therefore, the disallowance was made only on the basis of presumption, which is not tenable and the Ld. CIT(A) was justified in deleting the same. - Decided against revenue
Disallowance of selling expenses - Held that:- It appears that the Assessing Officer made an adhoc disallowance only on this basis that the expenses were more in the year under consideration as compared to the earlier years. However, he ignored this vital fact that the main expenses amounting to ₹ 18.25 lacs out of total expenses of ₹ 26.60 lacs under this head were on account of royalty and the Assessing Officer did not point out any specific instance where the expenses were not incurred for the business purpose. Therefore, the disallowance made by the Assessing Officer was only on the basis of presumption, which is not tenable and the Ld. CIT(A) rightly deleted the same.
- Decided against revenue
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2014 (5) TMI 1135
Disallowance u/s 14A computation - Held that:- We are also of the view that the basic facts about the details of the investment as well as the source of the investment in shares and mutual funds for the purpose of earning exempted dividend has not been properly explained to the lower authorities. As decided in assessee’s own case for A.Y. 1998-99 and 2001-02 wherein, as well, the matter was restored for reconsideration as per law as relied upon Hero Cycle [2009 (11) TMI 33 - PUNJAB AND HARYANA HIGH COURT ] wherein it was observed that disallowance u/s.14A requires finding of incurring of expenditure and where it is found that for earning exempted income no expenditure has been incurred, disallowance u/s.14A could not be made.
Consistent with the view taken in the past by the Tribunal in assessee’s own cases, we deem it proper to restore this ground back to the stage of the AO to be decided denovo after taking into account the latest decisions on the issue of the applicability provisions of Section 14A. The AO is required to examine the balance-sheet and related accounts of the assessee so as to see whether there was investment in shares/mutual funds out of the borrowed funds or non borrowed funds. In the light of the above directions, this ground of the assessee may be treated as allowed for statistical purpose only.
Depreciation on the assets leased back to Rajasthan Electricity Board (RSBB) is to be allowed as per law.
Expenditure in respect of a sale of a capital asset - allowable Revenue expenditure u/s.37 - Held that:- The accepted factual position was that the LPG Division was sold by the assessee in earlier years as a “slump sale”. We have been informed that on sale of the said LPG Division the assessee had offered to tax a ‘capital gain’ in the past. The assessee’s only argument is that the additional stamp duty was demanded in the year under consideration, therefore, the liability had crystallized during the year; hence, allowable only in this year. We are not convinced with the argument of learned AR because under the provisions of Section 37 of IT Act an expenditure which is incurred wholly and exclusively for the purpose of the business can be allowed as an expenditure. The expenditure of additional stamp duty being not an expenditure for the purpose of the business of the assessee but pertained to a capital gain which was shown in the past years, therefore, not to be allowed u/s.37 of IT Act for the year under consideration.
Expenditure for acquiring license to use software applications would be applicable as Revenue expenditure.
Adjustment of capital gain - whether a short term capital gain/loss can be adjusted against the long term capital gain/loss - Held that:- We are of the view that the long term capital gain is to be adjusted against the long term capital loss and likewise the short term capital gain is to be adjusted first against the short term capital loss. The provisions of the Act has prescribed the intra-head adjustments, therefore, the Revenue Authorities have correctly held that the appellant had wrongly adopted the method of adjustment of capital gain. Further we have also noted that, although not in the ground of appeal, the question of cost as per index cost was directed to be computed by AO as per Section 48 vide paragraph 16.2.1 of the order of learned CIT(A). Therefore, the assessee should not have any grievance in this regard. This ground of the Assessee is hereby dismissed.
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2014 (5) TMI 1134
Registration under section 12AA denied - non disposal of application - Held that:- Since the ld. Commissioner of Income-tax has not disposed of the application for registration within a period of six months consequent to the order of the Tribunal remitting the matter back to him vide its order dated 28.1.2010, registration under section 12AA of the Act will be deemed to have been granted. Accordingly, we direct the ld. Commissioner of Income-tax to grant registration under section 12AA of the Act forthwith. - Decided n favour of assessee
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