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Showing 61 to 80 of 1244 Records
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2014 (8) TMI 1186
TDS u/s 194J or 192 - payments made to the teachers on adhoc basis - default u/s 201(1)/201(1A) - HELD THAT:- Relationship between the management and teaching staff involved an obligation to obey orders in the work to be performed, the said relationship could not be called contract for service since the teaching staff had not undertaken to render any professional or technical service. As there was a contract of service between the assessee deductor and its teaching staff appointed on adhoc basis and the salary paid to them being below the taxable limit, does not warrant deduction of tax at source and such non deduction of tax at source does not invalidate the provisions of Act making the assessee liable for the demand raised under section 201(1)/201(1A)
We are in agreement with the observation of the CIT (Appeals) that merely because the assessee had not maintained separate books of account for financially added courses and self financing courses was not relevant, as there was no requirement under the Act and by not maintaining separate books of account, the nature of payment would not get changed. In view of the teaching staff being appointed on adhoc basis, for a short period, there was no entitlement for any other benefits like PF, Gratuit y, HRA, increment, etc.
Upholding the order of the CIT (Appeals), we hold that the Assessing Officer was not correct in treating the payments made to the teachers on adhoc basis as professional payments in line with the provisions of section 194J of the Act. The assessee is thus not in default and there is no merit in raising of demand under section 201(1) of the Act and charging of interest under section 201(1A) of the Act. The grounds of appeal raised by the Revenue are thus dismissed.
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2014 (8) TMI 1185
Penalty u/s 271D - contravention of the provisions of section 269SS - journal entries or cash loans - HELD THAT:- We find that the issue relating to justification for the penalties u/s 271D of the Act in identical facts and circumstances of the case has come up before the Tribunal in the case of assessee’s mother Smt. G. Venkata Lakshmi [2013 (7) TMI 1017 - ITAT HYDERABAD] and [2012 (11) TMI 1171 - ITAT HYDERABAD] wherein held there is no proof of receipt of such loan from the records and they were only found to be journal entries. The learned Tribunal, in our view, correctly observed that relying on an entry in the journal, no penalty proceedings can be initiated. Hence, it was sent for clarification whether actual flow of money did take place - Decided against revenue
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2014 (8) TMI 1184
Permanent injunction restraining the respondent, its agents, workmen or any person acting through or on behalf from interfering with the operations of the mining machinery deployed in the schedule property pending adjudication of the disputes - Whether this Court exercising jurisdiction under Article 227 of the Constitution of India ought to entertain this writ petition and if so, as to whether any relief ought to be granted to the petitioner herein?
HELD THAT:- This is a case where this Court ought to exercise its jurisdiction under Article 227 of the Constitution. The reasons for entertaining the writ petition would become clear when the impugned order is considered on merits.
From a reading of the impugned order it is clear that nowhere reasons have been recorded as to why the trial Court was of the opinion that injunction had to be granted in the form of a status quo order with regard to agreement between the parties dated11.12.2012 by dispensing with notice to opposite party i.e., petitioner herein before it concluded that non-grant of expert order of status quo would be defeated by delay if notice was to be ordered on the opposite party i.e., petitioner herein. In fact the impugned order records submission of applicant’s counsel before the trial Court, but in the absence of there being reasons as to why the expert order ought to have been allowed the impugned order is illegal and an arbitrary exercise of power by the learned trial Judge. In fact the impugned order is bald, laconic and bereft of any reason.
In fact on a reading of the impugned order itis noted that in the absence of there being any reasons assigned for dispensation of notice to the respondent before the trial Court coupled with a fact that no reasons have been assigned as to how the applicant before the trial Court had made out a prima facie case there is in effect and substance, violation of the principles of natural justice. Had the petitioner herein who is the respondent before the trial Court known the reasons as to why there was dispensation of notice to it and as to what the grave situation was that the matter required an expert order then possibly petitioner herein could not have approached this Court on that aspect. Also, if there were reasons assigned which were erroneous then possibly petitioner herein could have assailed that order by way of an appeal by contending that reasons were erroneous - But in this case the impugned order does not give any reason as to how prime facie case was made out by respondent herein or for that matter what the balance of convenience between the parties was.
The impugned order being bereft of reasons is liable to be quashed.
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2014 (8) TMI 1183
Revision u/s 263 - AO has not examined the issue as to whether these expenses pertaining to handling charges relatable to exempt income or taxable income - AO’s decision not to properly examine such expenses as above amounts to failure to examine the applicability of provisions of section 14A and has rendered the assessment erroneous and prejudicial to the interests of revenue - HELD THAT:- The total transport and handling charges appears in the accounts is inclusive of transport and service charges. The total handling charges appearing on expenditure side is the actual sum paid to various contractors (After considering the TDS). Thus, there is a direct nexus of expenditure incurred and income reflected in the accounts. Since this activity pertains to taxable income, the expenditure was deducted from transport and handling receipt. The expenditure and handling charges do not pertained to deriving any of the exempted income.
The various working submitted during the course of assessment have been verified by the concerned assessing Officer at relevant point of time and there is nothing on record to conclude that handling charges pertains to income from exempt activities as well as taxable activities. AO has passed the order after applying his mind to the facts of the case. In such a situation, the order of Assessing Officer cannot be said to be erroneous so as to prejudicial to the interests of revenue to invoke the provisions of section 263. So, the same is set aside. - Decided in favour of assessee.
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2014 (8) TMI 1182
Repair and maintenance service - Repair, maintenance or airworthiness of an aircraft - Liability of Service Tax - HELD THAT:- Though by amendment of the recent years, the right to practice law on the basis of the said qualification has been made subject to clearing /passing a Bar Exam to be held by the Bar Council of India , the same does not make the qualification of law not recognized by law. The recognition accorded by the Act, Rules and CAR supra to the Course Completion Certificate issued by the Institutes as the petitioner cannot be withered away or ignored merely because the same does not automatically allow the holder of such qualification to certify the repair, maintenance or airworthiness of an aircraft and for which authorization a further examination to be conducted by the DGCA has to be passed/cleared.
The Instruction aforesaid holding the petitioner to be assessable to Service Tax is contrary to Section 65(27)and the Notification dated 25th April, 2011.
Appeal dismissed.
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2014 (8) TMI 1181
Whether compliance of the provisions of Section 48 of the MCS Act, and Rule 48 (5) of MCS Rules, 1961 is mandatory for lending cooperative society before claiming protection/charge on immovable property of members? - HELD THAT:- Unless and until there is compliance of these two provisions, namely Section 48 and Rule 48 (5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of Section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise - the provisions of Section 48 and Rule 48 (5) are mandatory in nature for a Cooperative Society if a cooperative society wants to claim benefit /protection of the said provisions - answered in affirmative.
Whether it was necessary/mandatory for the appellant/plaintiff to serve the notice u/s 164 of the MCS Act before filing RCS No. 87/2012? - HELD THAT:- The act of the society in mortgaging the suit property which was already sold to the appellant who was not even a member of the society cannot fall in the definition of Sec. 164 of the Act. Therefore, the provisions of Section 164 will have no application in addition because the plaintiff wants to exercise his independent civil right - the notice u/s 164 for filing the suit was not at all necessary - answered in negative.
Whether the appellant/ plaintiff having served the notice under section 164 of the Act were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision? - HELD THAT:- When notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court as held by me above, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position that no such notice is necessary for filing the suit as a prerequisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 or he did not wait for the period of two months, would hence make no difference at all - When the law does not require issuance of notice u/s 164 of the MCS Act at all, to file the suit before expiry of the period would be of no consequence - answered in negative.
Whether for filing the suit u/s. 38 of the Specific Relief Act, prior notice u/s 164 of the MCS Act is mandatory? - HELD THAT:- The suit had nothing to do with the any legal act touching the business of society as stated in Section 164 of the Act. On the contrary, it is well-settled legal position that suit under section 38 of the Specific Relief Act for perpetual injunction is clearly out of the purview of such type of provisions - the suit u/s 38 filed by the appellant/plaintiff in this case was not required to be preceded by notice u/s 164 of the Act.
Application disposed off.
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2014 (8) TMI 1180
Addition on account of low G.P - assessee was not maintaining stock register - CIT-A deleted the addition - HELD THAT:- We find that the CIT(A) has given a finding that the sale prices are fixed for years whereas the prices of raw material are fluctuating. He has also given a finding that in such a business, small variation in gross profit is not a basis to make any addition. We also find that the gross profit rate of the assessee was 42.23% in the present year as against 46% in the preceding year. Hence, fall in gross profit is about 3.27% which is less than 10% gross profit rate declared by the assessee. Considering these facts, we do not find any reason to interfere in the order of CIT(A) on this issue. This ground of of Revenue is rejected.
TDS u/s 195 - Disallowance of commission to a non-resident for the technical services rendered - whether there is no explicit provision under the Act for making a payment to non-resident without deduction of tax at source? - HELD THAT:- We find that this issue regarding requirement of TDS out of payment of commission to a non-resident foreign agent for his services rendered outside India is squarely covered in favour of the assessee by a recent Tribunal decision rendered in the case of Asstt. CIT v. Lohia Starlinger Ltd. [2014 (10) TMI 700 - ITAT LUCKNOW] the second amendment cited by Revenue being insertion of explanation 2 to section 195(1) of the Act, has no relevance because in the present case, payer is already resident of India and therefore, already within the purview of section 195 (1) and there is no need in the present case to extend or broaden the scope of the term "any person responsible for paying to a non-resident" appearing in sub section 1 to section 195 of the Act. But the requirement that the payee is liable to tax in India in respect of the impugned payment has to be there to attract the provisions of section 195 (1) but in the present case, this aspect is covered in favour of the assessee and against the revenue by the judgment of Hon'ble Allahabad High Court in M/S MODEL EXIMS [2014 (6) TMI 290 - ALLAHABAD HIGH COURT] wherein held payment of commission to foreign agents did not entitle such foreign agents to pay tax in India and thus the TDS was not liable to be deducted u/s 195 of the Act - The disallowance made by AO u/s 40 (a) (i) for non-deduction of tax at source u/s 195 were not justified.
Disallowance of foreign travelling expenses - assessee was making foreign trips to destinations where actually no business activities are carried out - CIT-A deleted the addition partly - HELD THAT:- CIT(A) has examined the issue in detail and has given a finding that the assessee's business involves travelling outside India and visit to Europe and USA has been justified because exports were made by the assessee to these countries. He has also given a finding that the visit to UAE has not been substantiated for the purpose of business. He has confirmed the disallowance of ₹ 2 lac in respect to visit to UAE and in the facts and circumstances of the case and in view of this fact that learned DR of the revenue could not controvert these findings of CIT(A), we do not find any reason to interfere in the order of CIT(A) on this issue. This ground is rejected.
Disallowance of business promotion expense - assessee failed to explain the exigency of the expenses under this head during the course of assessment proceedings - CIT-A restricted the addition - HELD THAT:- finding of CIT(A) could not be controverted by Learned D.R. of the Revenue that as per the details of expenses, business promotion expenses mainly relate to booking of stalls. When the expenses on booking of stall is allowed to the extent of 80%, it cannot be said that the balance 20% for booking of stall is not for business purpose. There may be some expenses other than booking of stall also and in that respect, the CIT(A) has confirmed the disallowance of ₹ 10,000/-. Considering these facts, we do not find any reason to interfere in the order of CIT(A) on this issue. - Decided against revenue
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2014 (8) TMI 1179
Reference to Arbitration - Whether the disputes in a petition properly brought under Sections 397 and 398 read with Section 402 of the Companies Act, 1956 can be referred to arbitration? - HELD THAT:- No, subject to the caveat that I have noted regarding a mala fide, vexatious or oppressive petition and one that is merely 'dressing up' to avoid an arbitration clause.
The disputes before the CLB were outside the purview of the arbitration agreement as they related to matters not covered by the SSD.
The appointment of an observer-cum-facilitator was entirely without warrant and served no effective purpose.
The impugned order is upheld only to the extent that it holds that disputes in a properly brought petition under Sections 397 and 398 read with Section 402 of the Companies Act, 1956 are not referable to arbitration.
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2014 (8) TMI 1178
Disallowance of contribution to society - Addition u/s 40A - contribution was made by the assessee-company to a fund required to be set up by or under any other law for the time being in force - whether fund was constituted on bonafide for the welfare of its’ employees in smooth running of the business and hence the said contribution is to be allowed under section 37(1)? - HELD THAT:- Tribunal in assessee’s own case for assessment years 1990-92 and 1991-92 [2002 (9) TMI 254 - ITAT CALCUTTA-A] and [2013 (5) TMI 893 - ITAT KOLKATA] . Since we find the issues are covered by the order of the Tribunal in the case of the assessee itself as agreed to and thus, accepted by the department, these questions are not substantial questions of law to be adjudicated in appeal.
Payment of lump sum royalty - capital expenditure - HELD THAT:- Assessee did not derive any enduring benefit for payment of lump sum royalty as the agreement was for non-transferable license to manufacture licensed products in India.
appeal is admitted on question no. (iv) - Whether on the facts and in the circumstances of the case the Learned Tribunal erred in law and was not justified in law in giving direction to the Assessing Officer to allow depreciation on river bank embankment and that river bank embankment is to be treated as building ?
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2014 (8) TMI 1177
Deduction u/s 80-IA - as alleged assessee company executed works contract on behalf of other company and assessee company is only a sub-contractor executing contract on behalf of others - HELD THAT:- Isuue decided in favour of the assessee in its own case by the Tribunal for the assessment years 2003-04 to 2009-10 The issue has been consistently considered and decided by Income-tax Appellate Tribunal in assessee’s own case for all the earlier assessment years from 2003-04 to 2008-09. The Tribunal has accepted the contention of the assessee in the matter of its claim made under sec.80-IA. The case has been considered even after Explanation to sub-sec. (13) of sec.80-IA was inserted. Reference may be made to the orders of the Tribunal for assessment years 2007-08 and 2008-09. - Decided against revenue
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2014 (8) TMI 1176
Year of taxability of capital gain - when the development agreement was entered or when the built up area was completed and handed over to the assessee - handing over possession is relevant for capital gain tax - HELD THAT:- In the case of Commissioner Vs. D.K.Dayal [2012 (6) TMI 405 - KARNATAKA HIGH COURT], after noticing the case law on the point, has held that the date on which possession was handed over to the developer is relevant and therefore, the capital gain tax is payable for the assessment year in which the possession was handed over in terms of the joint development agreement. Therefore, on mere entering into a joint development agreement there is no transfer. The “transfer” in the Income Tax Act takes places on the date the possession of the property is delivered though not a registered document is executed conveying the title.
In the instant case, the authorities have held that the capital gain tax is payable in the assessment year 1995-96 when the joint development agreement was entered into by the assessee with the developer for transfer of 66% interest in an undivided immovable property and possession of the land was handed over and not when the built up area was completed and handed over to the assessee in the assessment year 1998-99. Hence, we answer the substantial question of law raised in favour of the assessee
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2014 (8) TMI 1174
Winding up - working of the office of the Official Liquidator completely collapsed - HELD THAT:- Assistant Official Liquidators who are qualified Advocates hardly attended to the matters in Court. The Advocates appearing before the Court repeatedly made a grievance that the entire office of the Official Liquidator would be deserted by 5.30 p.m. and no one would be available to assist them. Advocates briefed in the matters to represent the Official Liquidator also complained that they were receiving briefs at 10.30 in the morning on the day the matter was placed for hearing and no instructions would be forthcoming from the office of the Official Liquidator. The above pathetic functioning of the working in the office of the Official Liquidator had to be brought to the notice of the Learned Chief Justice who was pleased to immediately appoint a Committee to look into and supervise the working of the office of the Official Liquidator. During the initial meetings of the Committee, even the Regional Director was requested to remain present and was apprised of the above state of affairs.
Though with the appointment of Mr. S. Ramakantha, there seems to be some improvement, the office of the Official Liquidator needs a complete revamp. Officers like Mr. Reddy and Mr. Gupta are required to be forthwith transferred. The Ministry of Company and Corporate Affiars, New Delhi should ensure that the Officers who were appointed as Deputy and Assistant Official Liquidators are willing workers and well versed with the provisions of the Companies Act. In view thereof, a copy of this order shall immediately be forwarded to the Secretary, Ministry of Company and Corporate Affairs, New Delhi for immediate action.
Mr. Reddy is called upon to show cause as to why except for writing two letters to the Directors of the Company – Amar Remedies Ltd. calling upon them to submit the statutory records, no action was taken by his office pursuant to his appointment as the provisional Liquidator of the Company by an order dated 31st July, 2013. Mr. Reddy shall give his explanation on affidavit and appear before this Court on 12th September, 2014.
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2014 (8) TMI 1173
Best judgment assessment - CIT-A non considering submissions and the evidences filed during the course of appellate proceedings - remand report not supplied to the assessee by the CIT(A)- HELD THAT:- A.O. submitted the remand report vide letter dated 11-3-201 and the assessee appeared before the A.O. on 20-3-2013, 22-3-2013 and 25-3-2013 but the A.O. never informed him that he has already submitted the remand report on 13-3-2013. Even the copy of the remand report was not supplied to the assessee by the ld. CIT(A). Considering all these facts in totality in the light of the affidavit filed by the assessee, in our considered opinion, the issue needs to be re-adjudicated afresh by the ld. CIT(A).
CIT(A) is directed to consider all the evidences afresh and also furnish a copy of the remand report to the assessee. The assessee is directed to file necessary details before the ld. CIT(A). - Assessee appeal allowed for statistical purpose.
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2014 (8) TMI 1172
Penalty levied u/s 271(1)(c) - bonafide claim - disallowance of assessee’s claim of brought forwarded expense by the AO - assessee had furnished inaccurate particulars of income or had concealed its income - HELD THAT:- In the quantum appeal proceedings, the AO had allowed the work in progress to be capitalized during the earlier assessment years. In none of the earlier assessment years, the AO had computed the income of the assessee under the percentage completion method. Under such circumstances, it cannot be said that the assessee’s claim was not bonafide.
The computation adopted by the assessee was according to one of the possible views/methods of accounting, which though was not accepted by the AO and further by the Tribunal, but was held to be justified by the CIT(A) in quantum assessment/appellate proceedings.
Merely because the accounting method of the assessee was not accepted by the AO or that the claim of brought forwarded expenses was disallowed because of the peculiar fact that no construction activity could be carried out by the assessee during the past years, that itself, ipso facto, cannot be a ground in holding that the assessee had furnished inaccurate particulars of income or had concealed its income - It is not a fit case for levy of penalty and accordingly the penalty levied by the lower authorities is hereby set aside. - Decided in favour of assessee.
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2014 (8) TMI 1171
Renewal of mining leases - execution of second renewal lease deeds - principles of promissory estoppel - Section 8(2), read with the provisions of Section 24A(3) of MC Rules - Held that:- The renewal beyond the first renewal for a period of twenty years is conditional upon the State Government forming an opinion that in the interest of mineral development, it is necessary to do so and also conditional upon the State Government recording reasons for such renewal of a mining lease in respect of iron ore which is not specified in Part A and Part B of the First Schedule - In Tata Iron and Steel Co. Ltd. v. Union of India and Anr. (supra), this Court has held that the language of Sub-section (3) of Section 8 is quite clear that ordinarily a lease is not to be granted beyond the time specified in Sub-section (2) and only if the Government is of the view that it would be in the interest of mineral development, it is empowered to renew lease of a lessee for a further period after recording sound reasons for doing so. This Court has further held in the aforesaid case that this measure has been incorporated in the legislative scheme as a safeguard against arbitrariness and the letter and spirit of the law must be adhered to in a strict manner.
The MC Rules have been made under Section 13 of the MMDR Act by the Central Government and obviously could not have been made in a manner inconsistent with the provisions of the Act. Sub-rule (6) of Rule 24A of the MC Rules provides that if an application for the renewal of a mining lease made within the time referred to in Sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of the lease shall be deemed to have been extended by a further period till the State Government passes order thereon. This sub-rule cannot apply to a renewal under Sub-section (3) of Section 8 of the MMDR Act because the renewal under this provision cannot be made without express orders of the State Government recording reasons for renewal in the interest of mineral development.
Sub-rule (6) of Rule 24A of the MC Rules will apply to a case of first renewal under Sub-section (2) of Section 8 of the MMDR Act other than a case covered under Sub-rule (9) of Rule 24A of the MC Rules, but will not apply to renewal under Sub-section (3) of Section 8 of the MMDR Act. In our view, the deemed mining leases of the lessees in Goa expired on 22.11.1987 under Sub-section (1) of Section 5 of the Abolition Act and the maximum of 20 years renewal period of the deemed mining leases in Goa as provided in Sub-section (2) of Section 8 of the MMDR Act read with Sub-rules (8) and (9) of Rule 24A of the MC Rules expired on 22.11.2007.
Admittedly, there is no challenge to Section 8(3) of the MMDR Act and it can hardly be suggested that this provision is impliedly struck off by the Supreme Court.
In the case in hand, admittedly, all the petitioners have made applications for second renewal within the time limit i.e. before expiry of the term of first renewal of the mining leases. The mining plans for the second renewal, thereafter, came to be approved by the IBM. The IBM also recorded its subjective satisfaction that the same is in the interest of mineral development. Thus, there is enough material on record to show that the Government agreed to grant the second renewal of mining leases under Section 8(3) of the MMDR Act and thereafter amended the Stamp Act and directed some of the petitioners to pay the stamp duty and even accepted the same. Thus, the Government gave promise that the mining leases would be executed under Section 8(3) and pursuant to the promise, the petitioners altered their position by depositing the huge stamp duty - the principle of promissory estoppel is squarely applicable to the facts of the present case.
The Respondent-State of Goa is directed to execute the lease deeds under Section 8(3) of the MMDR Act in favour of the petitioners/lease holders who/which have already paid the stamp duty pursuant to the orders of the Government, in accordance with the Goa Mineral Policy, 2013 - So far as the petitioners/lease holders who/which have not paid the stamp duty are concerned, the Respondent-State of Goa is directed to decide their renewal applications under Section 8(3), as expeditiously as possible, and preferably within a period of three months from the date of receipt of copy of this order.
Petition disposed off.
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2014 (8) TMI 1170
Allocation of coal blocks for the period 1993 to 2010 - Non-compliance of the mandatory legal procedure under the Mines and Minerals (Development and Regulation) Act, 1957 - Breach of Section 3(3)(a)(iii) of the Coal Mines (Nationalisation) Act, 1973 - Violation of the principle of Trusteeship of natural resources by gifting away precious resources as largesse - Arbitrariness, lack of transparency, lack of objectivity and non-application of mind - Allotment tainted with mala fides and corruption and made in favour of ineligible companies tainted with mala fides and corruption.
Held that:- The entire allocation of coal block as per recommendations made by the Screening Committee from 14.07.1993 in 36 meetings and the allocation through the Government dispensation route suffers from the vice of arbitrariness and legal flaws. The Screening Committee has never been consistent, it has not been transparent, there is no proper application of mind, it has acted on no material in many cases, relevant factors have seldom been its guiding factors, there was no transparency and guidelines have seldom guided it. On many occasions, guidelines have been honoured more in their breach. There was no objective criteria, nay, no criteria for evaluation of comparative merits. The approach had been ad-hoc and casual. There was no fair and transparent procedure, all resulting in unfair distribution of the national wealth. Common good and public interest have, thus, suffered heavily. Hence, the allocation of coal blocks based on the recommendations made in all the 36 meetings of the Screening Committee is illegal.
The allocation of coal blocks through Government dispensation route, however laudable the object may be, also is illegal since it is impermissible as per the scheme of the CMN Act. No State Government or public sector undertakings of the State Governments are eligible for mining coal for commercial use. S
It is worthwhile to note that the 1957 Act has been amended introducing Section 11-A w.e.f. 13.02.2012. As per the said amendment, the grant of reconnaissance permit or prospecting licence or mining lease in respect of an area containing coal or lignite can be made only through selection through auction by competitive bidding even among the eligible entities Under Section 3(3)(a)(iii), referred to above. However, Government companies, Government corporations or companies or corporations, which have been awarded power projects on the basis of competitive bids for tariff (including Ultra Mega Power Projects) have been exempted of allocation in favour of them is not meant to be through the competitive bidding process.
As it is already found that the allocations made, both under the Screening Committee route and the Government dispensation route, are arbitrary and illegal, what should be the consequences, is the issue which remains to be tackled. To this limited extent, the matter requires further hearing.
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2014 (8) TMI 1169
Claim u/s 80IA(4) - HELD THAT:- The statutory provision under Section-80IA(4) states that where the total income of the assessee includes any profit and gain from the enterprises i.e. joint venture or Special Private Venture (S.P.V.) carrying on the defined business of developing or operating or maintaining any infrastructure finally then assessee would be liable for deduction.
It is also provided that the project should be owned by the company or consortium of companies, who got the contract from the State, as mentioned in Article-12 of the Constitution. But this facility is available only w.e.f. 01.04.1995, as per the amended provision and for the assessment year it is applicable. When it is so, then we find no reason to interfere with the impugned order passed by the Tribunal. The same is hereby sustained along with the reasons mentioned therein. Substantial questions of law is in favour of the assessee and against the department.
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2014 (8) TMI 1168
Eligibility to section 80IB / 80IA - assessee be denied deduction u/s 80IB(3) in subsequent years as the assessee from investment point of view, matures out of SSI definition, when the assessee is a SSI in the initial years of deduction - HELD THAT:- There is no dispute on the fact that the assessee is a SSI in the initial years. It is prospered and is no longer a SSI. Further, the assessee was given benefit of deduction u/s 80IB(3) of the Act in earlier years. Under these facts, we find the above judgment in the case of M/s. Ace Multi Axes Systems Ltd [2014 (8) TMI 596 - KARNATAKA HIGH COURT], has applicability to the present issue. CIT (A) has rightly adjudicated the issue under consideration while granting the relief to the assessee. Accordingly, we find no infirmity in the order of the CIT (A) and it does not call for any interference. Accordingly, the grounds raised by the Revenue are dismissed.
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2014 (8) TMI 1167
Surrender /termination of the lease - whether mere writing of letters by a tenant to the landlord calling upon him to take the possession of the tenanted premises would tantamount to surrender /termination of the lease? - Held that:- Vacant possession of the leased premises could be handed over to the lessor only after removal of its belongings by the lessee. Let us now examine what is the effect of three letters dated 22nd July, 2008; 23rd August, 2008 or 20th September, 2008 written by the lessee to the lessor. None of these communications specifically state that the lease would stand terminated. The letters also do not state that the appellant had removed its installations and vacated the premises and therefore, the lessor should visit the spot on any particular specified date or month to take over the vacant possession in accordance with the law in terms of Clause- 1 (d) of the said Lease. These letters thus do not contain a clear demand upon the lessor to take back the possession at a particular date and time.
Thus, the embedded installations of the LIC thus had not been removed prior to or even after sending the letter dated 22nd July, 2008. They were still in place almost two years thereafter on the 6 th of March, 2010, when the Local Commissioner visited the leased premises and the LIC sought time from the Local Commissioner for vacating the premises.
Whether merely writing such communications absolve the tenant of the liability to pay rent for the period till such time the premises were actually handed over to the landlord? - Held that:- Given the clear stipulation in the lease deed as well as the requirement under the Transfer of Property Act, it was the responsibility of the tenant to invite the landlord on a date and time as to when it was going to hand over the vacant possession of the property. The tenant made no efforts to remove its fittings and fixtures and was not in a position to hand over the vacant and physical possession even on the visit of Local Commissioner on 6th March, 2010. As such the landlord is within his rights to seek recovery of rent. Therefore, it has to be held that the three letters written by the lessee though terminated the lease, therefore, did not express intention to hand over vacant and peaceful possession of the premises. These communications therefore do not absolve LIC from its liability to pay rent.
The respondent's letter dated 22nd July, 2008 could be deemed to be notice of termination of the lease but it certainly does not invite the plaintiff as to when the vacant possession should be taken in terms of Clause-1(d) of the Lease Deed dated 9th May, 2008. The other two letters are of identical tenor and effect. In the instant case, the lessee was bound by virtue of Clause-1 (d) of the Lease Deed dated 9th May, 2008 to put the landlord in vacant possession of tenanted premises and the provisions of Section 108 (q) of Transfer of Property Act.
The suit filed by the appellants-plaintiffs is decreed against the respondent-defendant directing it to pay the appellants/ plaintiffs rent @ `3,18,750/- per month w.e.f. 1st June, 2008 till 15th April, 2010 together with costs all throughout - Appeal allowed.
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2014 (8) TMI 1166
Refusal on the part of the Adjudicating Officer to consider decision of another Adjudicating Officer of SEBI - Penalty u/s 15HA of SEBI Act, 1992 - Object of conferring penal powers upon the Adjudicating Officer - Held that:- Object of conferring penal powers upon the Adjudicating Officer is to ensure that the market players who violate the provisions of SEBI Act and the Rules and Regulations made there-under are brought to book and punished if found guilty, so that the order acts as a deterrent to other market players and carry on their trades in securities market in accordance with law.
In an Adjudication proceedings, if a party relies on adjudication order passed in an another case, then, judicial discipline demands that the Adjudicating Officer considers that order and thereafter passes an order either to follow or distinguish the earlier order or disagree with the order by recording reasons as to how that order is erroneous and ought not to be followed.
In the present case, the Adjudicating Officer has flatly declined to consider the order passed by another Adjudicating Officer on ground that such an order does not have binding effect and that he would prefer to form an independent view. Unless facts and circumstances set out in an order passed by Adjudicating Officer are materially different from the facts and circumstances of the case in hand, it would be just and proper for the Adjudicating Officer to follow the earlier order so that there is uniformity in the quasi judicial orders passed by the Adjudicating Officers' of SEBI.
In the present case, since the Adjudicating Officer of SEBI has committed impropriety of refusing to consider the decision of another Adjudicating Officer which according to the Appellant has direct bearing on the facts of present case, without going into the merits of the case we set aside the impugned order and direct SEBI to pass fresh order.
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