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Showing 21 to 40 of 1077 Records
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2014 (6) TMI 1060 - ITAT MUMBAI
Deduction u/s. 80 IB(10) - approval of the local authority was obtained on 28.11.1992 i.e. much before 01.10.1998 - AO disallowed the deduction on the ground that the project was started by commencement certificated dated 28th November, 1992 issued to M/s. Gas Property Developers, therefore, the assessee does not fulfilled the conditions laid down in section 80IB(10) according to which for being eligible for deduction under section 80IB(10) the project must have to be started on or after 1st October, 1998 - HELD THAT:- Number of no objection certificates were obtained by the assessee after entering into the Development Agreement. Copies of all these no objection certificates, IOD and CC were submitted. No contrary evidence has been brought on record to controvert these findings recorded by the learned CIT(A). Simply on the basis of the IOD obtained by M/s. Gas Property Developers, the AO has drawn an inference that it was continuation of the earlier project. However, the project has to be seen vis-à-vis the approval obtained for it and commencement of the project. The project commenced and developed by the assessee is not as per the old project for which approval was obtained by M/s. Gas Property Developers on 28th November, 1992.
These expenses also cannot be connected with the project got approved by the assessee in the financial year 2003 and on the basis of those expenditure it cannot be said that the project developed by the assessee is continuation of the earlier project for which approval was obtained by M/s. Gas Property Developers on 28th November, 1992.
No expenditure, whatsoever, has been shown to be incurred on the housing project for which approval was obtained by the assessee after entering into Development Agreement, i.e. on 10th July, 2003. The expenditure incurred by M/s. Gas Property Developers were not on the housing project approved by the municipal corporation on the revised layout
The expenditure incurred by M/s. Gas Property Developers was on repair of the boundary wall. Therefore, on the basis of the earlier approval obtained by M/s. Gas Property Developers, which has already lapsed, and the expenses were on account of repair of boundary wall the project cannot be stated to have been commenced before 01.10.1998. Therefore, we find no infirmity In the findings recorded by the learned CIT(A) that the AO was wrong in holding that the housing project of the assessee had commenced before 01.10.1998. - Decided against revenue.
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2014 (6) TMI 1059 - TELANGANA HIGH COURT
Conspiracy - Whether the order of sanction is mandatory from the competent authority for filing chargesheet against the petitioner? - Section 19 of the P.C. Act and also Section 197 of Cr.P.C. - HELD THAT:- It is settled principle of law that the order of sanction is only an administrative act and not a quasi judicial one. The competent authority can apply its mind on those facts and may pass appropriate orders for sanction of prosecution considering the facts and the prima facie evidence of commission of offence. The competent authority may grant or refuse to grant sanction - Before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is at liberty to produce the order of sanction even during the trial of the case.
The emphasis of Section 197 Cr.P.C. “ that no court shall take cognizance of such offence except with the previous sanction” suggests that before taking cognizance of offence alleged prior sanction from the competent authority is required. Before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is at liberty to produce the order of sanction even during the trial of the case - When, where court proceeds against public servant without sanction, he can raise the issue of jurisdiction of court. Sanction can be obtained even during trial depending upon facts of individual case. In that view of the matter, the respondent investigating agency is competent to file chargesheet even without obtaining prior sanction from the competent authority. Therefore the first issue is answered against the petitioner.
Whether any prima facie case is made out against the petitioner as per the material placed by the prosecution agency warranting interference of this Court under Section 482 Cr.P.C.? - HELD THAT:- It is also settled law that no hard-and-fast rule can be laid down and each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Section 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint - In the instant case, APIIC is the nodal agency with regard to allotment and fixation of price of land and the fact that the petitioner being the Secretary of the IT and C Department even according to the material placed by the prosecution is head of the Department only to process the application received by the department pursuant to the decision taken by the Government and also in view of the meetings conducted by the then Chief Minister.
In the instant case, APIIC is the nodal agency with regard to allotment and fixation of price of land and the fact that the petitioner being the Secretary of the IT and C Department even according to the material placed by the prosecution is head of the Department only to process the application received by the department pursuant to the decision taken by the Government and also in view of the meetings conducted by the then Chief Minister - the petitioner has not taken any independent decision in allotment of land or to fixation of price of land. Even otherwise, the charge sheet or the material does not disclose any criminal offence at all much less an offence either under Section 420 or Section 120-B IPC and 409.
From the counter averments and also the contents of the charge sheet itself the respondent investigation authority categorically stated that it is the APIIC which is the nodal agency for allotment of land and fixation of land value; and that after receiving the applications from three companies note was sent by the APIIC pursuant to the decision of the Government vide G.O.Ms.No.11 inviting applications from the companies for establishment of IT companies, that the APIIC which was authorised in that behalf, pursuant to the recommendations of the CCITI has forwarded the file after stating that “the Government after careful consideration has short listed some companies for Hyderabad and Visakhapatnam” and also stated in the note file that “information furnished by the company satisfied the requirement as fixed by the Government”, whereupon the note was processed and sent to the Law Secretary, Finance, Revenue and Chief Secretary and that taking into consideration the opinion of the Chief Secretary and thus the file passed through various phases - Since no ingredient under Section 120-B and 409 have been made out so also the ingredients of Section 420 IPC therefore, there is no reasons as to why the petitioner must be made to undergo the agony of a criminal trial.
On perusal of material produced by the prosecution itself, are inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to proceed against the petitioner; that allegations made in the charge sheet and the evidence collected in support of the same do not disclose commission of any offence alleged against the petitioner. Therefore, allowing the proceedings to continue against the petitioner would also amount to an abuse of the process of court. Hence, the cognizance of offence and the chargesheet filed insofar as the petitioner is liable to be quashed in order to meet the ends of justice.
Petition allowed.
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2014 (6) TMI 1058 - KARNATAKA HIGH COURT
Certification regarding the germination, quality and the specification - It is the case of the prosecution that the Seed Analyst submitted a report in respect of the sample drawn from a specific lot of seeds holding that they do not conform to the standard of specification regarding germination and purity as specified under Section 6(a) of the Act - time limitation under Section 468(2) (a) of the Code of Criminal Procedure - HELD THAT:- This Court find that the prosecution has failed to convince this Court on both aspects regarding the certificate issued by the Karnataka State Seed Certification Agency on 11.05.2012 being valid as on the date when the sample was drawn by the complainant on 21.07.2012, as drawing of the sample itself is erroneous. It is further seen that the prosecution has also failed to demonstrate that the complaint is filed within the period of limitation in as much as the laboratory report is dated 26.10.2012 and the complaint is filed on 19.06.2013 beyond the mandatory period of six months, within which, the complaint was required to be filed - the complaint falls short of requirement and the same is required to be quashed.
Petition allowed.
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2014 (6) TMI 1057 - KARNATAKA HIGH COURT
Deduction u/s 80P(2)(a)(i) - Assessee is a Cooperative Society - HELD THAT:- It is not in dispute that the assessee-The Karnataka State Co-Operative Housing Federation Limited is a co-operative society registered under the Act. It is a federal society, the membership of which is open to a co-operative society registered under the Act and not to individuals. However, the proviso makes it clear that if an individual is to be admitted as a member of a Federal Society it could be done as a nominal member. The definition of a Member contained under Section 2(f) includes a nominal and an associated member.
In order to attract the benefit of deduction in respect of income of a co-operative society, what is required is that the assessee claiming benefit should be carrying on the business of banking or providing credit facilities to its members. As an individual could be a nominal member both of a federal society and a co-operative society and if a federal society extends credit facilities to such nominal members, the income derived from such business falls within Sub-Section (2)(a)(i) of Section 80P of the Act. Therefore, the assessee would be entitled to the benefit of deduction. Therefore, the finding recorded by the Tribunal that the assessee is entitled to the said benefit is strictly in accordance with law and it cannot be found fault with. In that view of the matter, we do not see any merit in this appeal. Therefore, the substantial question of law is answered in favour of the assessee and against the revenue.
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2014 (6) TMI 1056 - ITAT BANGALORE
Disallowance on account of extraction/rescreening charges - AO found that the explanation offered by the assessee in respect of substantially higher extraction/rescreening charges claimed during the year under consideration was not reliable - there was a substantial difference between the sales and purchases declared by the assessee for the year under consideration showing higher gross profit (GP) rate as compared to the GP rate declared by the assessee in the immediately preceding year - HELD THAT:- Extraction/rescreening charges were paid by the assessee @ ₹ 38 and ₹ 55 per m.t. in the A.Ys. 2008-09 & 2010-11 respectively and the AO already having allowed the claim of the assessee for such charges @ ₹ 200 per m.t. during the year under consideration, we are of the view that even if the various reasons advanced by the assessee in support of its claim for higher extraction/rescreening charges are assumed to be correct, the same are already covered and taken care of by the fact that the higher extraction/rescreening charges @ ₹ 200 per m.t. are allowed by the AO himself, as compared to ₹ 38 as claimed by the assessee himself in the immediately preceding year.
Most of the adverse findings recorded by the AO while disallowing the claim of the assessee on account of extraction/rescreening charges to the extent of about ₹ 45 lakhs were found to be correct by the ld. CIT(A), but she still restricted the disallowance made by the AO on this issue to ₹ 23 lakhs, giving a relief of about ₹ 22 lakhs to the assessee on this issue, without giving any cogent or convincing reasons and without appreciating the fact that the claim of the assessee for higher extraction/rescreening charges was allowed by the AO by adopting the rate of ₹ 200 per m.t., as compared to the rate of ₹ 38 per m.t. claimed by the assessee in the immediately preceding year.
We are of the view that the disallowance made by the AO on account of extraction/rescreening charges was fair and reasonable and the ld. CIT(Appeals) was not justified in restricting the same to ₹ 23 lakhs. We, therefore, modify the impugned order of the ld. CIT(Appeals) on this issue and confirm the disallowance of ₹ 45,05,867 made by the AO on account of extraction/rescreening charges. - Decided in favour of revenue.
Disallowance u/s 40(a)(ia) - labour charges paid by the assessee to at least 17 persons were exceeding ₹ 50,000 - HELD THAT:- As out of the total expenses of ₹ 1.09 crores claimed by the assessee on account of extraction charges, expenses to the extent of ₹ 45.05 lakhs are already disallowed and it is not possible to ascertain precisely as to whether the expenses of ₹ 9,76,185, which were again disallowed by the AO u/s. 40(a)(ia) of the Act, are forming part of the expenses allowed or disallowed.
We are of the view that the benefit of doubt should go to the assessee and since substantial portion of the expenses claimed by the assessee on extraction charges are already disallowed, it would not be fair and proper to make a disallowance on account of extraction charges again u/s. 40(a)(ia), which may result into double disallowance of the same expenses. We, therefore, uphold the impugned order of the ld. CIT(A), deleting the disallowance made by the AO on account of extraction charges by invoking the provisions of section 40(a)(ia) and dismiss grounds of the revenue’s appeal.
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2014 (6) TMI 1055 - MADRAS HIGH COURT
Validity of Government Order in G.O. Ms. No. 178 Home (Police XIX), dated 19.03.2013 - direction to return the vehicles to the petitioner - case of the petitioner is that they granted financial assistance to the private respondents and its Partners/Directors, for purchase of vehicles - hypothetication agreement between the petitioner and the purchaser - Section 120(b), 406 & 420 IPC read with Section 5 of the TNPID Act - HELD THAT:- The writ petition has been filed to quash the Government Order in G.O. Ms. No. 178, dated 19.03.2013. The Government took note of the fact that the complaints were received from the depositors of the respondent company stating that they have defaulted in return of the deposits made by the depositors after maturity and the Government is satisfied that the financial establishments is not likely to return the deposits to the depositors and the Government have to protect the interest of such depositors and therefore, the movable and immovable properties alleged to have been procured by the financial establishments from and out of the deposits collected from the depositors, in exercise of powers conferred under Section 3 of the TNPID Act, makes an ad-interim order of attachment of the movable and immovable properties and transfers the control of the same to the competent authority, the third respondent in the writ petition.
Admittedly, the vehicles in question have not been disposed of by the competent authority and ad-interim attachment is yet to be made absolute and the application is stated to be pending - The challenge in the Criminal Revisions is to the orders passed by the Special Court dismissing the applications filed by the petitioner under Sections 451 & 457 Cr. P.C. The contentions raised by the petitioner and the objections made by the fourth respondent Police as well as the competent authority have been referred to in the preceding paragraphs. The Special Court after taking note of the submission made on either side referred to the Section 3 of the Act and held that the Government is having every power to attach the properties on financial establishment, who had defaulted in payment to the depositors and therefore, came to the conclusion that the petition filed by the petitioner is not maintainable in law.
The petitioner has to be necessarily heard in the matter and their right to seek for custody of the vehicles should be considered in the light of their right over the hypothetical and simultaneously, the powers under the Act, which was enacted to protect the depositors in the light of the above discussion, the order passed by the Special Court calls for interference.
The matter is remanded to the Special Court for fresh consideration - the Criminal Revision Cases are allowed.
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2014 (6) TMI 1054 - KARNATAKA HIGH COURT
Dishonor of Cheque - acquittal of the accused - cross-examination of the complainant - preponderance of probabilities - initial presumption under Section 118 and 139 of the N.I. Act - HELD THAT:- The initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. Of course, the accused need not rebut the presumption beyond all reasonable doubt as it is incumbent upon the complainant to prove his case beyond reasonable doubt. Nevertheless, the accused has to place sufficient materials to convince the Court that his case is probabilised when it is compared with the case of the complainant. If the accused has failed to establish that his case is proved by means of preponderance of possibility that is to say, probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt.
There are no hesitation to hold that the Trial Court has committed a serious error in appreciating the legal aspects and as well as the factual aspects as detailed above, and came to a wrong conclusion. No Court can come to such conclusion on the basis of above said materials on record. The findings recorded by this Court are based on the evidence on record. The Trial Court even not taken any pains to appreciate the evidence on record in detail to arrive at a proper conclusion - the Trial Court has committed a serious error in acquitting the accused even though sufficient materials are available on record in favour of the complainant and that the accused has not proved his defence by probabilities.
The judgment of acquittal recorded by the Trial Court is hereby set aside - Appeal allowed - decided in favor of appellant.
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2014 (6) TMI 1053 - BOMBAY HIGH COURT
Waiver of predeposit and stay - the tribunal has not assigned any reasons except referring to some judicial pronouncements - HELD THAT:- Reliance is placed upon an order passed by the Division Bench of this Court in COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS JSW STEEL LTD. [2014 (9) TMI 332 - BOMBAY HIGH COURT] where it was held that we have no alternative but to allow this Appeal only on this short, but substantial question of law and that is that the Appeals cannot be disposed merely by recording rival submissions and not discussing them elaborately but, in a perfunctory manner.
Appeal allowed.
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2014 (6) TMI 1052 - ITAT BANGALORE
Disallowance of Provision for Bad & Doubtful Debts claimed to the extent eligible u/s 36(1) (vii a) - HELD THAT:- As decided in assessee's own case [2015 (4) TMI 727 - ITAT BANGALORE] Assessee’s method of computation of 10% of the Aggregate Average Advances made by its rural branches computed in the prescribed manner viz., as per Rule 6ABA of the IT Rules, 1962 had not been doubted by the AO and hence the additional grounds raised were held to be not admissible.
Tribunal held Sec.36(1)(viia)(a) of the Act, clearly lays down that deduction of 7.5% of the total income has to be allowed as deduction. The plea of the learned DR to restrict the allowance to 7.5% of the total income of the rural branches is contrary to the provisions of the Act. The said additional ground was therefore held to be unsustainable on merits and does not even require an admission for adjudication as it does not arise out of the order of the AO or CIT(A). Thus all the additional grounds sought to be raised by the Revenue were not admitted for adjudication.
We hold that the Assessee in the present AY 09-10 is not entitled to deduction u/s.36(1)(viia)(a) of the Act on an amount greater than the amount debited to the profit and loss account as provision as laid down by the Hon’ble Punjab and Haryana High Court in the case of State Bank of Patial[2004 (5) TMI 12 - PUNJAB AND HARYANA HIGH COURT]. The disallowance made by the AO in this regard is restored and order of CIT(A) reversed on this aspect. Gr.No.2 raised by the Revenue is accordingly allowed.
Interest on Securities on accrual basis - HELD THAT:- It is not in dispute before us that identical decision has also been rendered by the Hon’ble High Court of Kerala in the case of CIT v. Federal Bank, [2008 (1) TMI 195 - KERALA HIGH COURT] In the present case, the assessee has been following the method of offering interest on securities to tax on receipt basis on maturity and the same has been accepted by the revenue in the past. In view of the aforesaid decision, we are of the view that the order of the CIT(A) does not call for any interference. Consequently, ground No.3 raised by the revenue is dismissed.
Loss on Valuation of Investments - HELD THAT:- The facts and circumstances in the present year being identical to the earlier assessment year i.e., AY 06-07[2015 (4) TMI 727 - ITAT BANGALORE] we are of the view that the order of the CIT(A) is just and proper and calls for no interference. Respectfully following the decision of the Tribunal for AY 06-07 referred to above, we dismiss, Gr.No.4 raised by the Revenue
Disallowance of expenses made invoking the provisions of Sec.14A while computing income under the normal provisions of the Act and adding the sum so disallowed to the profits as per Profit & Loss Account for the purpose of computing book profits u/s.115JB - HELD THAT:- It is not in dispute before us that identical issue was considered by this Tribunal in assessee’s own case for the A.Y. 2006-07[2015 (4) TMI 727 - ITAT BANGALORE] and this Tribunal remanded the issue for fresh consideration by the AO in the light of the decision of the Hon’ble Bombay High court in the case of Godrej & Boyce Mfg. Co. Ltd.,[2015 (4) TMI 727 - ITAT BANGALORE] - Following the aforesaid decision, we remand the issue to the AO for fresh consideration to be decided on the lines indicated by the Tribunal.
Deduction on account of provision made for payment of wage arrears on the ground that the same was unascertained liability which was contingent upon the finality of the wage agreement between the management and the employees - HELD THAT:- In this year the provision for wage arrears made by the Assessee was at 8% of the wages prevailing while the ultimate settlement with the workers was at 12%. Thus the estimate made by the Assessee was conservative and well below the ultimate increase that the Assessee conceded to workers in the settlements.
As laid down in the case of BEML [2000 (8) TMI 4 - SUPREME COURT] the criteria for allowing deduction on account of a provision is that the liability to incur the expenditure which is claimed by way of a provision should be certain and secondly the quantification of such liability should be scientific/reasonable. In the present case, the assessee was legally bound to pay the ultimate revision of wages to be settled. In our view going by the past history, the basis on which the provision was made was reasonable. The liability of the assessee to pay increased wages is certain but what was pending was only quantification. The revenue has not disputed the basis of quantification of such liability. In such circumstances, we are of the view that in the light of the principles laid down by the Hon’ble Supreme Court in the case of BEML (supra), the claim for deduction should be allowed. We accordingly direct the AO to allow the claim of the assessee in this regard.
MAT applicability - HELD THAT:- Provisions of Sec.115JB of the Act are not applicable to the Assessee which is a banking company.
Taxing unclaimed monies in NOSTRO Accounts as income of the Assessee taxable u/s.41 - whether similar sums which are credited to the Profit & Loss A/C. after due permission of RBI after conditions imposed by RBI similar to the one imposed in the case of the Assessee? - HELD THAT:- The Reserve Bank of India, while giving permission to close these accounts has clearly stipulated that the amount so transferred shall not be treated as available for distribution of dividends, meaning thereby the Reserve Bank of India has not permitted the bank to treat it as an income once and for all and it has always stipulated certain conditions and prescribed certain procedures and formalities to safeguard the interest of the bank as a whole but that does not take away the basic nature of the amounts. It cannot in any way convert the transactions of this nature as revenue transactions of the bank necessitating the same to be treated as income on the revenue account. At least, the Reserve Bank of India which was ceased of the issue when it was posed to it did not accept the claims of the assessee that this should be treated as miscellaneous income, meaning thereby, these amounts in question, even by efflux of time, cannot be treated as income for the obligations on the part of the bank is not extinguished and Reserve Bank of India has made it very clear that the assessee bank will be under obligation to discharge all the obligations arising therefrom.
In the light of the aforesaid decisions of the tribunal on identical facts as that of the case of the Assessee in the present appeal, we are of the view that the action of the revenue authorities in treating a sumbeing write back of credit balances in NOSTRO Accounts credited to profit and loss account cannot be treated as income of the Assessee and brought to tax.
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2014 (6) TMI 1051 - BOMBAY HIGH COURT
Maintainability of appeal - Whether the findings of the CESTAT, that the CHA had obtained authorization, and the shipping documents were filed by the employee of the CHA having custom pass, is based on no evidence or partly relevant or partly irrelevant evidence and is otherwise perverse and arbitrary?
HELD THAT:- The Appeal is Admitted on the substantial question of law.
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2014 (6) TMI 1050 - ITAT CHANDIGARH
Correct head of income - treatment of interest on FDR s during the construction period - capital receipt or income from other sources - HELD THAT:- We find that the facts of the present case are similar to the facts before the Hon 'ble Supreme Court in Tuticorin Alkali Chemicals & Fertilizers Ltd. Vs. CIT[1997 (7) TMI 4 - SUPREME COURT] and applying the ratio laid down by the Hon 'ble Apex Court we hold that the interest earned by the assessee by parking its funds in short term deposits with the bank is assessable as income from other sources.
We find no merit in the reliance placed upon the decision in Indian Oil Panipal Consortium Ltd. [2009 (2) TMI 32 - DELHI HIGH COURT] as the facts of the said case were at variance. We also find no merit in the plea of the assessee that the interest earned by the assessee is to be infused as share capital and/or to be returned to the Principals who had had advanced the loans to the assessee as the assessee has failed to bring on record any evidence to establish its claim. Merely because the money in future would be utilized for capital expenditure does not make the receipts as capital receipts in the hands of the assessee. - Decided against assessee.
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2014 (6) TMI 1049 - ITAT HYDERABAD
Estimation of income - A.O. completed the assessment under section 144 - CIT-A estimated the income at 3% of the gross receipts as against 5% estimated by the A.O. - Revenue argued that CIT(A) gave relief without calling for any remand report from the AO - HELD THAT:- Since the assessee has not furnished any additional evidence, re-appraising the existing fact on the basis of the submissions does not require any remand report. Ld. CIT(A) based his judgment on the basis of available facts on record and also considering the difficulties expressed by the assessee in not earning higher profit. Estimation of profit at 3% of turnover is reasonable. Therefore, grounds of the Revenue are rejected.
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2014 (6) TMI 1048 - ITAT CUTTACK
Exemption u/s 11 - application of the Assessee for registration u/s 12AA - As per CIT-A as per the objectives stated in the amended constitution, the prime object of the Assessee is to preach and practice, teach and educate the tenets of Christianity in the district of Mayurbhanj, neighbouring districts and states. Therefore, the Trust is basically a religious trust created for the benefit of particular religious community or caste - HELD THAT:- From the Income and Expenditure account which was filed before us, we noted that the Assessee has income from sale of literature as well as sale of agricultural product. These incomes clearly show that the activities of the Assessee are in the nature of trade, commerce or business. The words used in proviso to Sec. 2(15) are “any activity in the nature of trade, commerce or business”. This denotes that the Assessee need not actually be engaged in trade, commerce or business but the activities are such which can be in the nature of trade, commerce or business. The words “activity in the nature”, in our opinion, has been used by the legislature as the legislature is fully aware that for carrying out trade, commerce or business there should be a profit motive.
A trust or society which is created for charitable purposes does not have profit motive in carrying out its activities. Therefore, wherever the activities are of the nature of trade, commerce or business, it cannot be said that the trust/institution is engaged in charitable purposes. As the Assessee has income from sale of literature as well as sale of agricultural product, the aforesaid discussion proves that the activities of the trust/institution are not genuine. Even the Assessee could not prove the genuineness of the trust/institution. We, therefore, do not find any illegality or infirmity in the order of CIT as, in our opinion, any trust/institution seeking registration u/s 12AA has to be governed by the Indian Income Tax Act. We, accordingly, dismiss the appeal filed by the Assessee. - Decided against assessee.
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2014 (6) TMI 1047 - HIMACHAL PRADESH HIGH COURT
Sexual assault - offences punishable under sections 452, 342, 376 (2) (g) and 506 read with section 34 of the Indian Penal Code - HELD THAT:- The incident is stated to happened on 29.2.2008 at 10.30 P.M. From the variance in the contents of Ex.PW-3/A and the statement of PW-3 Vidya Devi coupled with statements of PW-1 Ved Parkash and PW-2 Rajinder Singh, it cannot be held that the prosecutrix was subjected to forcible sexual act. She had an opportunity to raise alarm when the boys were standing in front of the door of her house for 10 minutes and insisted to have sex with her. She had again an opportunity to raise alarm when Tara Devi came to her, but she did not raise alarm. She knew that PW-2 Rajinder Kumar was residing in the adjoining room. He was in the room. The door of one of the rooms of prosecutrix goes to the room of Rajinder Kumar. PW-1 Ved Parkash though has stated that it was locked. However, it is apparent that what was happening in the room was being heard by Rajinder Kumar. It is for this reason that Rajinder Kumar told the boys to come out. According to rukka, when she raised alarm PW-1 Ved Parkash and PW-2 Rajinder Kumar had come on the spot. However, in her statement, she has stated that she came out and went to the house of Ved Paraksh and stayed there over night with him. PW-11 Gopal Dutt has not supported the prosecution case at all. In fact, PW-1 Ved Parkash and PW-2 Rajinder Kumar have been declared hostile. The only conclusion, which can be drawn from the evidence of the prosecution, is that the sexual act was consensual. The prosecutrix was 32 years of age having two children. There are material contradictions, inconsistencies and embellishments in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused.
The prosecution has failed to prove the charge under section 342 of the Indian Penal Code. It is duly proved from the statement of PW-2 Rajinder Kumar that prosecutrix was not wrongfully confined. She had an opportunity to raise alarm when the landlord’s daughter Tara Devi had come and more particularly when PW-2 Rajinder Kumar was residing in the adjoining room.
In order to prove charge under section 452 of the Indian Penal Code, the prosecution is required to prove that the accused committed house trespass as defined in section 442 of the Indian Penal Code and that the house trespass was committed after the accused made preparation for causing hurt to, or for assaulting, or for wrongfully restraining some person, or for putting some person in fear of hurt, assault or wrongful restraint. The prosecution has failed to prove the charge under section 452 of the Indian Penal Code. The accused were standing, according to the statement of PW-3 Vidya Devi, in front of door of her house for ten minutes. It is not the case of the prosecution that accused used some force to enter the house - Similarly, prosecution has failed to prove charge under section 506 of the Indian Penal Code in view of the statements of PW-1 Ved Parkash, PW-2 Rajinder Kumar, PW-3 Vidya Devi and PW-11 Gopal Dutt.
Accused are acquitted of the charges framed against them. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case - appeal allowed.
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2014 (6) TMI 1046 - COMPANY LAW BOARD, MUMBAI
Appointment of professional management organization, such as Alvarez & Marsal to manage the affairs of the Company - directing Promoter Group immediately cease to participate in the management and day to day operations of the Company - directing the Company and the Promoter Group to schedule and attend a meeting between BSR and Deloitte, no later than three days from the date of this application - appointing a suitable person as an Administrator on the Board of Directors of the Company, with the power to forthwith conduct the day to day affairs of the Company and to takeover charge of the maintenance of the statutory books and accounting records of the Company - restraint on Promoter Group from acting or holding themselves out to be Directors/executive of the Company - restraint on R-2 to R-8 from holding any meeting of the Board of Directors or shareholders of the Company and/or passing any resolution/s without the consent of this Hon'ble Board - restraint on R-2 to R-8, from appointing any other persons as Directors on the Board of Directors of the Company - directing the Respondents to provide to Deloitte all information, books and records, including but not limited to the Tally server of the Company for the last two years - directing the Respondents jointly and/or severally to provide to the Petitioners all information as sought for by them in respect of the activities of the Company and to provide the Petitioner with all the necessary cooperation and information to ascertain the working of the affairs of the Company.
HELD THAT:- The Respondents all along avoided to accept service of documents. It is further apparent from their conduct that they did not extend any cooperation to Deloitte who was undertaking the impact assessment exercise on the basis of the consent order. The Respondents caused delay in their exercise of carrying out an impact assessment on one ground or the other.
I have also carefully gone through various orders passed by the Committee headed by Mr. Mehta prescribing the mechanism whereby the Company was directed to provide its comments on the documents that were handed over by EY to Deloitte. However, it appears from the perusal of the record, that the Respondents avoided to accept the documents and despite an opportunity being afforded to them to raise any objections, in a timely manner, they did not do so. However, it appears that to deflect attention from the findings of the interim report, the Respondents have resorted to raise unfair allegations against Deloitte on the pretext that Deloitte did not get the documents authenticated from the Company.
There are no reason to disregard the interim report submitted by Deloitte. I am also not inclined to accept the contentions of the Respondents that since no physical verification regarding the alleged variation in the assets of the Company was made, the report is liable to be ignored on this ground. In the absence of full cooperation from the side of the Respondents, it was not possible for the Deloitte to physically verify the assets of the Company. I am therefore not convinced with the contentions of the Ld. Sr. Counsel that the interim report deservers to be set aside. Based on the above, I do not find any merits in the application. Prayers made in this application are thus declined.
It is a settled proposition of law that while granting an ad-interim injunction order, the Court is required to examine three essential ingredients. Firstly, prima facie case in favour of a party who seeks an ad-interim injunction orders. Secondly, balance of convenience and thirdly, question of irreparable loss. In other words, the court while granting or refusing to grant ad interim injunction should exercise sound judicial discretion to find out the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused as compared with that it is likely to be caused to the other side, if the injunction is granted. In light of the above law, I will consider the submissions advanced by the Ld. Counsel appearing for the respective parties.
The CLB after giving an opportunity to the Parties to lead their evidence finally comes to a final conclusion that the Respondents have diverted the funds of the company to their own entities and/or there are related party transaction, the CLB is competent to pass an order to recover such amounts from the third parties who have been benefited by the Respondents by way of diversion of funds. In my considered view, an arbitrator is incapable to pass such orders. I have therefore come to the conclusion that looking into the nature of the disputes raised in the petition and the reliefs sought for are not capable of being arbitrated by an Arbitrator nor as an Arbitrator empowered to grant such reliefs which the CLB enjoys by virtue of Section 402 of the Act.
Having regard to the facts and circumstances of the case, as well as the law propounded by various courts, granting of such reliefs would amount to granting of final prayers at the interim stage which is impermissible under law. I, therefore, keeping in mind the paramount interest of the Company and balancing the equities between the parties, allow the prayers for further interim reliefs.
The Respondent No. 1 shall not raise any new debt or issue any guarantee(s) without prior approval of this Board - The Respondent No. 1 Company shall not alienate, encumber, or dispose off any of its movable and/or immovable assets, save and except it is required in the usual course of business and with prior information to the Petitioners and this Bench - Application disposed off.
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2014 (6) TMI 1045 - KARNATAKA HIGH COURT
Assessment passed on revised return - revised return was filed beyond time - As per order of assessment framed by the Assessing Authority on the basis of such invalid revised return is a nullity and the Tribunal also held that even if the order of assessment is held to be passed on the original return, it was barred by limitation as it is hit by Section 153 - HELD THAT:- Assessment order was passed not on the basis of the revised return but on the basis of the original return and therefore the amount claimed as exemption was also liable to be taxed.
Tribunal committed a serious error in holding that the assessment order is passed on the basis of the invalid return filed beyond time. Therefore, it is a clear case of misreading. The order passed by the tribunal is ex-facie illegal and therefore the said order requires to be set aside and accordingly it is set aside.
The return was filed for the assessment year 2001-02. The previous year begins from 1-4-2000 to 31-3-2001 and end of the assessment year is 31-3-2002. In view of Section 153(1)(a), two years period is prescribed for passing of the assessment order which ends on 31-3-2004. The assessment order was passed on 31-3-2004 and therefore, the order passed by the Assessing Authority on the basis of the original return is in time. Unfortunately, the Tribunal had not applied its mind properly and erroneously came to the conclusion that even if the assessment order is to be held as the assessment order passed on the originalreturn, it is barred by time which again is ex-facie illegal and requires to be set aside.
Appeal is allowed. The impugned order passed by the Tribunal is hereby set aside and the order of the Assessing Authority is restored. - Decided against the assessee.
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2014 (6) TMI 1044 - ITAT CHENNAI
Exemption u/s 54EC - assessee has invested the sale consideration in REC bonds beyond the prescribed time limit of six months - assessee is 94 years old, a retired army officer AND chartered accountant appearing for the assessee, the assessee fell ill and could not attend the work of depositing the sale consideration in the bonds within the rigidity of the time frame - HELD THAT:- Assessee was prevented from investing his money within the period of six months because of his illness. The assessee was making efforts to locate a suitable house for him. The moment he came to know that it was not possible for him to find out a house immediately, he sought for the alternative remedy suggested by the statute to invest the funds in eligible bonds. Once he decided to invest in bonds, he fell ill and was prevented from purchasing the bonds within the stipulated period. As soon as he recovered from the illness, he purchased the bonds and complied with the provisions of sec.54EC even though by a normal gap of 59 days.
Assessee is excused by the Doctrine of supervening impossibility. It was not possible for the assessee to purchase the bonds on or before 3rd December, 2007 because of his illness. He purchased the bonds immediately after recovering from the illness. Nominal delay of 59 days is excused by Law. When the delay is excused on a principle of law, we have to see that the assessee is entitled for the exemption on the ground that the delay is to be ignored. Therefore, we find that it is necessary to construe that the assessee has purchased the bonds within due date and, therefore, entitled for exemption provided under sec.54EC. - Decided in favour of assessee.
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2014 (6) TMI 1043 - ITAT MUMBAI
Tax on capital gain - sale of a capital asset as held as a business asset and depreciation was claimed on it - charged at 20% OR at the normal tax rate - computation of capital gain u/s 50 r.w,s 50C - HELD THAT:- We are of the opinion that whenever depreciation is claimed on and assessed it has to be treated as STCG as per the provisions of the Act. But while calculating the tax liability of the assessee as per the provisions of section 112 of the Act the asset has to be taken as long term asset, if same is hold for more than three years by the assessee in the case of Smita Conductors Ltd. [2013 (9) TMI 1056 - ITAT MUMBAI] held that if the flat is held for more than three years the tax rate has to be applied as provided in section 112 of the IT Act applicable in respect of capital gain arising from transfer of long term capital asset.
We, therefore, held that, for the purpose of computation of capital gain, the flat has to be treated as short term capital gain u/s 50 of the IT Act, but for the purpose of applicability of tax rate it has to be treated as long term capital gain if held for more than three years. - Decided in favour of assessee.
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2014 (6) TMI 1042 - KERALA HIGH COURT
Seeking stay of recovery proceedings - garnishee proceedings initiated under s. 226(3) - recovery, which had been lying dormant from June, 2013 was revived just prior to the close of the financial year and recovery effected of the entire amounts demanded under the assessment order - intention of the 3rd respondent was to attach the amounts remaining in the account maintained by the petitioner with the additional 4th respondent-bank; without notice to the assessee - HELD THAT:- Act of withdrawal of the amount after having validly attached the amounts, without any real presumable cause for suspecting delay or impediment in such recovery, was a clear abuse, especially since there was no notice to the assessee, which is the mandate of due process of law. The Department acted without deliberation or due cause and the unavoidable consequence is a direction for the refund of amounts withdrawn under s. 226(3), after deducting ₹ 4 crores, as stipulated in the conditional order passed by this Court on 27th March, 2014.
The refund shall be made within a period of two weeks with interest from the date of withdrawal, to the date of repayment, at the rate applicable in the account of the petitioner; if the account is interest bearing. The refund shall be made without looking at the result of the appeal, which is said to have been heard on 20th March, 2014, since the same is only a first appeal and substantial amounts are already recovered and allowed to be retained with the Revenue as per the interim order of this Court.
This Court does not intend to go into the conduct of the individual officer, since the learned standing counsel points out that she is new to office and had only acted in anxiety to protect Revenue. This Court cannot also discount the pressure brought upon subordinate officers; when, as referred to in UTI Mutual Fund [2012 (3) TMI 333 - BOMBAY HIGH COURT] the Chairman, CBDT, himself, has addressed the Chief CIT, Director Generals, etc., of the IT Department, requiring speedy recovery and consequent weightage in the normal incidence of service. This Court has to necessarily practise the judicial restrain, it preached at the beginning. Suffice it to observe that the zeal to serve the nation shall not cross the bounds of law and result in over-zealous actions infringing upon the rights of citizens, for whom the State exists.
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2014 (6) TMI 1041 - ITAT AHMEDABAD
Disallowance u/s 14A - as argued entire investment was made in the earlier years by erstwhile Gujarat Electricity Board (GEB) which got de-merged in the immediately preceding year. The assessee was one of the seven de-merged companies thereof - HELD THAT:- Respectfully following the precedent we restore this issue back to the file of the Assessing Officer for adjudication afresh with the same directions as given by the Tribunal in the Assessment Year 2006-07 [2013 (9) TMI 1071 - ITAT AHMEDABAD] as held that the investments were in the form of shares of subsidiary companies as part of the financial restructuring plan approved by the Government of Gujarat which was integral to the demerger - decision of Hon'ble Bombay High Court pronounced in the case of Godrej & Boyce Mfg. Co. Ltd. Muimbai vs. Dy.CIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] - AO is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income - AO should provide a reasonable opportunity to the assessee of producing its accounts - Remanded back for statistical purpose.
Disallowance under the head assets written off on the ground that the same is not a revenue expenditure - HELD THAT:- Items in question are drills, tools and equipments which do not have life of more than a year has to be verified from the account books and documents of the assessee as they are not available on record. Therefore, we set aside the order of the Commissioner of Income Tax (Appeals) and restore the matter back to the file of the Assessing Officer for adjudication of the issue afresh in the line of the decision of ADI Artech Transducers (P) Limited [2013 (8) TMI 1105 - GUJARAT HIGH COURT] after allowing reasonable opportunity of hearing to the assessee. Thus, this ground of appeal is allowed for statistical purpose.
Disallowance of prior paid expenses - HELD THAT:- Various claims in respect of transmission charges, tariff, additional capacity charges, building charges etc raised by National Thermal Power Corporation Limited, Power Grid Corporation of India Limited, Gandhar Power Station, Maharashtra State Electricity Board etc. were settled during the year and the liability to pay got crystallized only during the accounting year. The Departmental Representative has relied on the order of the Assessing Officer. He could not bring any material on record to show that the finding of the Commissioner of Income Tax (Appeals) that various expenses claimed by the assessee under the head prior paid expenses got crystallized during the year and therefore were claimed as deduction during the year under consideration was incorrect. Neither has it been shown by the Revenue that the expenses claimed by the assessee are not genuine. It is the claim of the Revenue that since the assessee is following mercantile system of accounting, therefore expenses relating to the year under consideration are only allowable to the assessee.
Even in the case where assessee is following mercantile system of accounting, expenses which are disputed and are finally settled and crystallized in a later year, they are allowable as deduction to the assessee in the year of crystallization of such expenses. Therefore, we do not find any good and justifiable reason to interfere with the order of the Commissioner of Income Tax (Appeals) which is confirmed and this ground of appeal of the Revenue is dismissed.
Disallowance of miscellaneous expenses and write-off - HELD THAT:- Assessing Officer should also get an opportunity to verify the documents which were filed before the Commissioner of Income Tax (Appeals) for the first time by the assessee. In view of the above submissions of the Departmental Representative, we set aside the order of the Commissioner of Income Tax (Appeals) and restore this matter back to the file of the Assessing Officer for adjudication of the issue afresh as per law after allowing reasonable and proper opportunity of hearing to the assessee. The assessee is also directed to file all the details and documents before the Assessing Officer as and when called upon to do so. Thus, this ground of appeal of Revenue is allowed for statistical purpose.
Addition u/s. 40(a)(ia) - legal and professional charges - failure to furnish the details with regard to payment and tax deducted thereon and credited the same to the Government - HELD THAT:- Assessing Officer should also get an opportunity to verify the evidences which were filed for the first time before the Commissioner of Income Tax (Appeals) by the assessee. Therefore, in view of the above submissions of the Departmental Representative, we set aside the order of the Commissioner of Income Tax (Appeals) and restore the matter back to the file of Assessing Officer for adjudication of the issue afresh after allowing reasonable and proper opportunity of hearing to the assessee. Thus, this ground of appeal is allowed for statistical purpose.
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