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Showing 161 to 180 of 1498 Records
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2015 (1) TMI 1345 - SUPREME COURT
Maintainability of the suit - suit filed by the father of the appellants in respect of property owned by appellants Nos.1 and 2 even when the appellants were added as plaintiffs as heirs of their father who died during pendency of the suit - whether description of the appellants who are owners as heirs instead of owners in their own right will be a case of mere "error, defect or irregularity" not affecting the merits or jurisdiction of the Court which did not affect the maintainability of the suit. it is undisputed that appellants Nos.1 and 2 are the sole owners of the property in question
Held that:- It is not disputed that they were substituted as plaintiffs on the death of Shiv Kumar before the trial Court itself. It is also not disputed that they could maintain the suit for eviction. Thus on admitted facts, only defect pointed out is of formal nature in description without, in any manner, affecting the merits or the jurisdiction of the Court. Such irregularity could have been corrected by the Court under Order 1 Rule 10 and can be corrected even at this stage unless the defendant is in any manner prejudiced. No principle or authority has been brought to our notice which could affect the maintainability of the suit merely on account of wrong description which did not in any manner cause prejudice to the defendant, particularly when no such objection is shown to have been raised before the trial Court.
In our view, the District Judge is, thus, not justified in reversing the decree of the trial Court on such a technicality which did not in any manner affect the merits of the case. Section 99 of the Code of Civil Procedure, 1908 provides as under :
1 "99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction:
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
[Provided that nothing in this section shall apply to non-joinder of a necessary party.]
Thus, the High Court also erred in upholding the order of the District Judge.
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2015 (1) TMI 1344 - CALCUTTA HIGH COURT
Affidavit verifying petition - Grant of leave - whether the Court can grant leave to the persons who have sworn the affidavit verifying the instant winding-up petition, as being “duly authorised” to do so by the petitioners? - Held that:- This Court is of the view that in the facts and circumstances of the instant case, before such leave under Rule 21 of the Company (Court) Rules, 1959, is granted in favour of those persons, it is necessary for it to be satisfied that that all of them have been “duly authorised” by the petitioning-creditors to make and file the affidavit in support of the instant petition on their behalf. As such, the deponents are directed to satisfy this Court that they were “duly authorised” by the petitioning creditors to make and file the affidavit verifying the instant winding-up petition, by producing valid resolutions adopted by the Board of directors of the petitioning-creditors supported by powers of attorney given in their favour by the petitioning-creditors. Let such documents be produced before this Court on 29th January, 2015.
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2015 (1) TMI 1343 - KARNATAKA HIGH COURT
Petitioner ceased to be a Director on the date of alleged offence - no prosecution for the offences committed by other Directors - Held that:- Whether petitioner had ceased to be a Director on the date of alleged offence, whether petitioner can be held liable for offences committed by other Directors are the matters to be decided before the trial court. These factual disputes cannot be decided in a petition under Section 482 Cr.P.C.
The petition is dismissed with these observations.
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2015 (1) TMI 1342 - ITAT AHMEDABAD
Unexplained credit u/s.68 - non furnishing of information - Held that:- CIT(A) in appeal observed that evidences have been provided to Assessing Officer during assessment proceeding who instead of carrying further investigation into the source of funds with the lenders, issued show cause on the basis of doubts and suspicion. Even during course of remand proceedings, Assessing Officer did no investigations, which is not justified. Both the lenders are Income Tax assessee and confirmations were given. Source of funds with creditors were also provided to Assessing Officer. Assessing Officer instead of taking action, made addition for the reason that cash was deposited before the loan transactions. The deposit of cash proceeding transactions can give rise to doubt and be a starting point for investigation but cannot be the basis of conclusion disregarding other evidences. Nothing adverse has been brought on record by Assessing Officer with regard to evidence produced by assessee on this point. In any manner, since creditors were assessed to tax, confirmation were filed, TDS deducted on interest credit and loan were reflecting in their accounts, no addition could be made in the hands of assessee u/s. 68. Accordingly, CIT(A) justified in deleting addition - Decided in favour of assessee
Disallowance of interest - assessee had debited interest expenses which was provided at 12% but had not charged interest on loan given to 3 persons - Held that:- Matter was carried before the First Appellate Authority, wherein various contentions were raised on behalf of assessee and having called for remand report and considering the same CIT(A) observed that evidence shows that interest had been charged by assessee on advances given to M/s. Royal Agencies and fact that advances to other concerns were business advances, disallowance of interest was not warranted. Accordingly, same was rightly deleted. We uphold the same.- Decided in favour of assessee
Unexplained income on the basis of interest - non receipt of reply from parties u/s. 133(6) - Held that:- As before the First Appellate Authority, various contentions were raised on behalf of assessee inter alia stated that assessee had regular business dealings with these persons. Assessee submitted ledger copies in his books as also confirmations from the said parties to establish that transactions and outstanding balances were genuine. Same were forwarded to Assessing Officer for his comments after verification of genuineness. It was stated by Assessing Officer in remand report that contentions put for by Authorized Representative is correct and matter be decided on merits. In view of comments of Assessing officer and fact that necessary confirmations were submitted on behalf of assessee, which was in conformity with the outstanding balances in the books. CIT(A) was justified in deleting addition - Decided in favour of assessee
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2015 (1) TMI 1340 - SUPREME COURT
Dismiss or terminate the services of a workman - power exercised by Labor court - Held that:- It is a settled proposition of law that while considering the management's decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act.
Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained.
In the result, the appeal is allowed and the impugned judgment passed by the High Court is set aside and the award passed by the Labour Court is restored
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2015 (1) TMI 1339 - ITAT MUMBAI
Deduction u/s. 80IB - expenses eligible for deduction - Held that:- Undoubtedly, the job work charges are directly related with the business of the assessee, hence, eligible for deduction u/s. 80 IB of the Act. We order accordingly. However, in respect of the claim of other income which relates to sundry balances written back, we find that the sundry balances written back relates to the purchases/expenses made in the earlier years. However, this fact needs to be verified by the AO. We, therefore, restore this issue to the file of the AO for the limited purpose of verification of the written back amount relating to the purchases/expenses of earlier years. The AO is directed to verify and if found to be related with the purchases /expenses of earlier years, the same has to be treated as eligible for deduction u/s. 80IB
Bogus and fabricated purchase and sale - Held that:- It is an undisputed fact that there is no issue/dispute in relation to third party sales, whereas the Tribunal has considered and accepted the genuineness of the sales made to : (i) M/s. Suryavinayak Aromatics (ii) Laveesha Enterprises (iii) Jaywant Industries Ltd. & (iv) Jaywant Products Ltd.
After para -17 of the Tribunal’s order following para -17(a) is to be inserted which reads as under:
“Para-17(a) :To complete the adjudication we have considered the sales made to aforementioned parties though the sale made to these parties is not the issue raised by the Revenue in its ground.”
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2015 (1) TMI 1338 - ITAT PUNE
Treatment of the transaction of purchase and sale of shares - capital gain OR profits and gains of business - magnitude and frequency of the transaction - Held that:- The assessee is full time involved in other activity of being Executive Director of Serum Institute of India Ltd.. There is no material to suggest that any organizational structure or infrastructure is possessed by the assessee to undertake trading in shares as a business activity. There is no material to say that assessee acted as a frequent dealer in shares over an extended period of time. No doubt, for a short spell of time in the months of February and March, assessee has undertaken transactions in the shares of HCL Technologies Ltd..
But the same by itself cannot be categorized as a business activity, as it is not a continuous activity. Moreover, we also find weight in the plea setup by the Ld. Representative before us that if the intention was to incur loss, as canvassed by the Assessing Officer, then obviously such an activity cannot be categorized as ‘business’. It is well understood that no business is carried out with an intention of making a loss, rather the intention is always to make profits. Therefore, by taking an overall view of the facts and circumstances of the present case, we are unable to uphold the stand of the lower authorities that the transaction in the shares of HCL Technologies Ltd. is a business transaction. We hereby set-aside the order of the CIT(A) on this aspect and direct the Assessing Officer to re-compute the capital gain/loss on the sale of shares of HCL Technologies Ltd. considering it to be assessable under the 20 head capital gains as per law. Thus, on this aspect assessee succeeds.
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2015 (1) TMI 1337 - CESTAT BANGALORE
CENVAT credit - job-work - Held that: - the Larger Bench in the case of STERLITE INDUSTRIES (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI], took the view that MODVAT credit of duty paid on inputs used in the manufacture of final products cleared without payment of duty for further utilization in the manufacture of final products which are cleared on payment of duty by the principle manufacturer would not be hit by provisions of Rule 57C - appeal allowed - decided in favor of appellant.
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2015 (1) TMI 1336 - CESTAT, BANGALORE
CENVAT credit - duty paying invoices - the said credit is not available as the appellant had not produced the proper invoices and documents on the basis of which the same was availed - scope of SCN - Held that: - it was not open to the adjudicating authority to travel beyond the allegations made in the SCN and to deny the credit based on an altogether new ground.
The adjudicating authority has also disallowed the credit of ₹ 94,611/- as excess credit availed. Learned advocate has tried to establish the figures of the entire credit availed and the credit attributable to each and every service and submits that there is no reason for the Commissioner to come to the finding of the excess credit - appeal allowed by way of remand.
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2015 (1) TMI 1335 - ITAT HYDERABAD
TPA - determination of ALP - selection of comparable - Held that:- Assessee is an IT solution company that provides software development service in the areas of ERP solutions design, implementation & maintenance and Internet technology solutions to its customers. The company has a hundred percent Export Oriented Undertaking (EOU) registered with the software Technology Parks of India {STIP}, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
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2015 (1) TMI 1334 - CALCUTTA HIGH COURT
Addition u/s 68 - Held that:- What will be the implication after section 68 is applied to the opening balance of a little over ₹ 12 lakhs in this case vis- a -vis the further transactions is a serious question of fact which has to be considered and for that purpose we are of the opinion that a remand is required. We should not be deemed to have expressed any opinion as to whether the peak credit theory is applicable to the facts and circumstances of the case or is not applicable to the facts and circumstances of the case. That question is left to be decided by the Tribunal on the basis of evidence, which may be adduced before them and they shall allow letting in of necessary evidence, if the assessee so desires. The limited question to be considered is whether the assessee is entitled to any benefit on the basis of peak credit theory.
In the result, the order under challenge is set aside and the matter is remanded to the learned Tribunal for re-hearing. The learned Tribunal is requested to hear out the matter within a period of six months from the date of communication of this order.
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2015 (1) TMI 1333 - RAJASTHAN HIGH COURT
Treatment to assessee Samiti as registered under Section 12-A - the assessee got itself registered under Section 12-A w.e.f. 26.9.2005 - Held that:- Section 11 of the Act of 1961 provides that subject to the provisions of Sections 60 to 63, the income derived from property held under trust wholly for charitable or religious purpose shall not be included in the total income of the previous year of the person in receipt of the income. The Krishi Upaj Mandi Samiti being created under a statute is discharging public charitable functions from the date of its establishment and as such merely the fact of certification at a belated stage will not make it disentitled to have benefit of Section 11 ibid. Looking to peculiar fact that the instant assessee was created under the Rajasthan Agriculture Produce Market Act, 1961 with its statutory duties and liabilities, we are of the view that the Income Tax Appellate Tribunal was justified in holding that the Samiti is a charitable institution from inception and, thus, is entitled for getting its income computed by taking into consideration provisions of Section 11(1) of the Act of 1961, even for the years prior to having certificate under Section 12-A of the Act of 1961.
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2015 (1) TMI 1332 - SUPREME COURT
Offence made out against the appellant under the provisions of Prevention of Corruption Act - Held that:- The Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, "the crux of the matter is the conversation between the complainant and the accused no.1 of 22.11.2010". That conversation is inaudible and the same is not to be taken in evidence. Therefore, once the 'crux' goes, the superstructure also falls, lacking in legs. Hence, prosecution becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part, unfortunately, the High Court missed.
Once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point in making a request for sanction for prosecution. If the prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[(1997) 7 SCC 622], this Court has in unmistakable terms made it clear that no court can issue a positive direction to an authority to give sanction for prosecution.
The High Court exceeded in its jurisdiction in substituting its views and that too without any legal basis. The impugned order is hence set aside. Appeal is allowed.
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2015 (1) TMI 1331 - RAJASTHAN HIGH COURT
Pre-deposit - maintainability of petition - Held that: - taking into consideration the financial status of the company, Tribunal passed the order impugned. The order does not suffer from any error that may warrant interference of this Court while exercising powers under Article 226 of the Constitution of India - petition dismissed.
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2015 (1) TMI 1330 - JHARKHAND HIGH COURT
Levy of CST instead of Jharkhand VAT - petitioner's case is that petitioner is e-auction purchaser of coal within the State of Jharkhand. He is a registered dealer within the State of Jharkhand. The seller and purchaser of the goods are within the State of Jharkhand. The whole transaction of sale has been completed within the State of Jharkhand and, therefore, the Annexure 4 as CST Invoice cannot be issued. In fact, it should have been VAT and respondent No.6 is at no loss at all , because the VAT is also at the rate of 5% and the CST is at the rate of 5%, but it would make a difference for this petitioner for getting input tax credit.
Held that: - even if the movement of goods have taken place out of one State to another State, by per se, CST is not leviable. One has to draw his attention, whether the movement of goods from one State to another has taken place due to e-auction or not. If answer is negative, the CST is not leviable. There may be second sale. Subsequent purchaser may purchase the same goods. Now, if due to subsequent sale, if, the very same goods are moving from one State to another, therefore seller of goods of first transaction cannot levy CST but he can levy only VAT - the CST, levied at the rate of 5% by respondent no.6 is impermissible in the eyes of law. Instead of that, it should have been VAT under the Jharkhand Value Added Tax Act, 2005 - petition allowed - decided in favor of petitioner.
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2015 (1) TMI 1329 - BOMBAY HIGH COURT
Admit on the following substantial questions of law:-
(A) Whether on the facts and in the circumstances of the case and in law, the Tribunal grossly erred in not, at the outset, deciding the application for admission of additional evidence filed under Rule 29 of the Income Tax Appellate Tribunal Rules,1963 read with the additional evidence paper book before proceeding to pass an order on the merits of the controversies involved in the appeal ?
(B) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in approving the denial of exemption under Section 54F ?
(C) Whether the Tribunal infringed the principles of natural justice in not providing an opportunity to the Appellant to rebut the detrimental conclusions inferred by the Tribunal based on the additional evidences adduced by the Appellant and the Circular No.495 dated 22.09.1987 ?”
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2015 (1) TMI 1328 - KARNATAKA HIGH COURT
Claim of deduction under Section 36(1)(viia) - Assessing Authority took population figures of the Census 2001 to be adopted for the purpose but was computed by the assessee in respect of population of the places in which the assessee's Rural Banks were situated with reference to the population figures of the Census 1991 - Held that:- The word published has to be understood as final population as contended by the learned counsel appearing for the assessee. If other words are added it would amount to re-writing which is impermissible in law. Keeping in mind the object, before the bank is entitled to the said benefit all that is to be seen is whether in that village where the rural branch is situated population is less than 10,000 or exceeding 10,000. Census is conducted once in ten years. After conclusion of the Census, provisional figure will be published and then final publication is made. If from the date of provisional population totals being published it has crossed the 10,000 limit as prescribed under the Law, then it does not satisfies the requirements of the rural branch and consequently assessee would not be entitled to the benefit granted to the rural branches. The publication of the final population total is only a formality. If after provisional population total shows more than 10,000 and in the final population total figure shown is less than 10,000 then it will make difference.
But in both the provisional population total and the final population total if figure is mentioned above 10,000 it makes no different in the instant case. It is not the case of the assessee though the provisional figure mentioned is above 10,000 and in the final population total it has gone below 10,000. Therefore, provisional population total cannot be acted and in that view of the matter the Tribunal was justified in upholding the order passed by the assessing authority where they have acted on the Census figures of 2001 as reflected in the provisional population totals and denied the benefit to the assessee. We do not find any error committed by the authorities. In that view of the matter, the substantial question of law is answered in favour of the revenue and against the assessee.
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2015 (1) TMI 1327 - ITAT JAIPUR
Addition being 10% of telephone and conveyance expenses - rejection of books of accounts - Held that:- Find merit in the arguments of learned counsel for the assessee that when the books of account are rejected and trading additions are made, there is no justification in making further ad hoc disallowance qua telephone and conveyance expenditure. This view is supported the ITAT in assessee's own case for preceding year. In view thereof, the addition is deleted. - Decided in favour of assessee
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2015 (1) TMI 1326 - ALLAHABAD HIGH COURT
Speaking order - respondent No.2 was required to pass a speaking order on the re-assessment of assessable value within 15 days from the date of reassessment of the bill of entries as required u/s 17(5) of the Act - Held that: - the competent officer to pass a speaking order on the re-assessment of the assessable value within a period of four weeks - petition allowed - decided in favor of petitioner.
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2015 (1) TMI 1325 - CESTAT, BANGALORE
Benefit of N/N. 63/95-CE dated 16.03.1995 - goods manufactured by the appellant, which were cleared to M/s. HAL, were further supplied to defence, the same were being cleared by the appellant without payment of duty - denial of benefit of notification on the ground that the notifications in question grant exemption to M/s. HAL and not to the vendors of HAL - time limitation - Held that: - certificates handed over to the appellant duly signed by CSIO or aeronautic development agency and based on which the appellant availed the benefit of notification. Even if the fact that they were not signed by the proper officer is admitted, no suppression or mis-declaration can be attributed to the assessee so as to invoke the longer period of limitation - as is seen from the certificate, the person signing the same is holding the rank in pay scale higher than the Deputy Secretary to Government of India in which case even though the certificates were not signed by Deputy Secretary, the same should be accepted. Further the Superintendent in his letter dated 28.10.2013 has also verified the said certificates and has reported that the same appears to be adequate - demand cannot be held sustainable on the point of limitation itself - appeal allowed by way of remand.
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