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Showing 41 to 60 of 1399 Records
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2015 (2) TMI 1367
Dishonor of Cheque - It is contended that in absence of impleadment of the Company as per Section 141 of NI Act, the punishment Under Section 138 on the Director cannot be sustained - HELD THAT:-In ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] the question that arose for determination by this Court was whether an authorized signatory of a company would be liable for prosecution Under Section 138 of the Act without the company being arraigned as an accused. As there was a difference of opinion between the two learned Judges regarding the interpretation of Sections 138 and 141 of the Act reference was made to the larger Bench of three Judges. In the said case, this Court noticed the ratio laid down in the case of STATE OF MADRAS VERSUS CV. PAREKH [1997 (10) TMI 389 - SUPREME COURT] and the view expressed in the case of SHEORATAN AGARWAL & ANOTHER VERSUS STATE OF MADHYA PRADESH [1984 (9) TMI 300 - SUPREME COURT] while interpreting Section 138 and 141 of the Act, this Court observed that we arrive at the irresistible conclusion that for maintaining the prosecution Under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
After analyzing all the provisions and having noticed the different decisions rendered by this Court, the three Judges' Bench arrived at the irresistible conclusion that for maintaining the prosecution Under Section 141 of the Act, arraigning a company as an accused is imperative. Hence in this case, we find no reason to refer the matter to the larger Bench.
In the present case, only the Appellant was impleaded as an accused. In that view of the matter, we are of the view that complaint with respect to the offence Under Section 138 read with 141 of the Act was not maintainable following the decision in Aneeta Hada - Appellant stands acquitted.
Appeal allowed.
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2015 (2) TMI 1366
Dishonor of Cheque - defence evidence is being produced by the petitioner to establish that the cheque had not been given to discharge any liability - measure of security - HELD THAT:- The petitioner has already set his defence as is apparent from his statement under Section 313 Cr.P.C. He has also examined two defence witnesses. The question which the petitioner wants to put to the witness by re-summoning him can be established by him while producing his defence evidence.
The presumption under Section 139 of the Act can be rebutted by even producing defence evidence. No ground is made out at this stage to allow the application under Section 311 Cr.P.C. to re-summon the complainant - it is not deemed appropriate to allow the application under Section 311 Cr.P.C. as the defence available with the petitioner has already been put on the record.
Application dismissed.
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2015 (2) TMI 1365
Deduction u/s.80HHC - HELD THAT:- It is the assessee who had preferred the appeal before the Tribunal for claim of netting of the expenditure in relation to other income. Tribunal had remanded the matter to the AO for the limited purpose of verifying the claim of the assessee. In this respect, the AO has observed that assessee has failed to furnish convincing evidences, under such circumstances, the proper course for the AO was to make/uphold the disallowance to that extent only. There was no jurisdiction to the AO to further enhance the income of the assessee on some other ground while computing the deduction u/s.80HHC. The issue relating to the deduction except on the ground agitated by the assessee before the Tribunal, had become final. Hence the action of the AO enhancing the income on some other issue, while giving effect to the order of the ITAT, was not justified. By doing so, the AO in this case has exceeded his jurisdiction. Hence the enhancement of the income of the assessee on this issue is hereby set aside.
Disallowance of claim of weighted portion u/s. 35(2AB) - HELD THAT:- Tribunal has held that cut-off date mentioned in the certificate issued by the DSIR would be of no relevance. Once a certificate by DSIR is issued and it is proved that the assessee is indulging in R&D activity and had incurred the expenditure thereupon, then the assessee is entitled to deduction u/s.35(2AB). The Ld. Counsel has further invited our attention to the another order of the ITAT relevant to assessment year 2003-04 where in the Tribunal while adjudicating the identical issue has observed that the assessee since then has got formal approval from DSIR in form 3CM, in respect of Vapi unit, has been received on 5th August 2011 and hence the assessee has been entitled for weighted deduction under section 35(2AB) for said unit. It has also been directed that since certificate has been received after passing of orders of the CIT(A), therefore, the matter has been remanded to the AO for the limited purpose of verification of the certificate. As regards Thane unit, since no such order of approval in form no. 3CM was available with the assessee, therefore, disallowance of the weighted deduction under section 35(2AB) with respect to Thane unit has been upheld.
As brought our attention to the copy of the certificate dated 5th August 2011 wherein a composite approval for the purpose of section 35(2AB) has been issued by the department from 06.07.2001 to 31.03.2012 for the Vapi unit. In view of above we accordingly restore the matter to the AO for the limited purpose of verification of the above stated certificated dated 05.08.2011 and if verified to be correct, the AO to allow the claim of the assessee accordingly. Since no such certificate is available for the Thane unit hence, the claim for Thane unit on this issue is not allowable.
Depreciation on assets purchased from Pravin Metal Corporation - HELD THAT:- The issue for this year is accordingly restored to the file of the AO to decide it in the light of the directions as reproduced above and after providing due opportunity of being heard to the assessee.
Disallowance u/s.14A - HELD THAT:- As in the earlier assessment years i.e. A.Y.1999-2000, 2001-02 & 2002-03 and A.Y. 2005-06 disallowances have been restricted by the Tribunal to 2% of dividend income received by the assessee. The relevant year before us being 2005-06, rule 8D of the income Tax Rules is not applicable for this year as has been held in the case of “Godrej & Boyce Mfg. Co. Ltd.[2010 (8) TMI 77 - BOMBAY HIGH COURT] that the same is applicable from assessment year 2008-09 on words. In view of the consistent finding of the Tribunal for earlier assessment years, restricting disallowance u/s.14A to the extent of 2% of dividend income, we accordingly restrict the disallowance of the expenditure u/s.14A to 2% of dividend income accordingly.
Depreciation claimed under rule 5(2) - AO and CIT(A) have disallowed the claim of additional depreciation solely on the ground that no certificate was produced as required under rule 5(2) - The said certificate dated 10.10.2011 has now been received by the assessee from department of Scientific and Industrial Research (DSIR). The matter is accordingly restored back to the file of the AO for limited purpose of verification of certificate and if verified to be correct, to allow the claim accordingly.
Disallowance of bad debts - HELD THAT:- We find that the Ld. CIT(A) has deleted the disallowance on account of bad debts while relying on the decision in the case of “TRF Limited vs. CIT” [2010 (2) TMI 211 - SUPREME COURT], wherein the Hon’ble Supreme Court has held that it is not necessary for the assessee to establish that the debt in fact has become irrecoverable. It is enough, if the bad debt is written off as irrecoverable in the accounts of the assessee. We are also in agreement with the finding of the CIT(A) that it is the assessee who as a prudent business man has to decide as to whether there are any chances of the recovery of debts or the same has actually become bad. In view of this, we do not find any infirmity in the order of CIT(A) on this issue. This appeal of the Revenue is accordingly dismissed.
Treatment of Computer software expenses as capital in nature - HELD THAT:- The software purchased vide/Bill dated 7.9.06 was valid from 7th Sept. 06 to 6th Oct. 06, whereas, the software purchased vide invoice dated 31st July 2006 was for one year auto updates. The Ld. Counsel has further invited our attention to other bills to show that the relevant software expenses, in fact, were for the annual or monthly support services and thus were periodical expenditure. It was not for long term having enduring benefit. Even otherwise, it is commonly known that now a days, the software version has short duration value, as the moment, new software comes into market, old software loses its value in this developing scenario especially in the software market. It cannot be said that said expenses incurred by the assessee were on long term basis giving enduring benefit. In view of above, this ground is allowed in favour of the assessee and it is directed that the software expenses be treated as Revenue in nature.
Disallowance of weighted deduction u/s.35(2AB) - AO has disallowed the claim of deduction u/s 35(2AB) of the Act on the ground that no approval was obtained from the prescribed authority in form No.3CL and 3CM - HELD THAT:- The said forms were received by the assessee during the course of appellate proceedings and were submitted to the CIT(A). At the same time, assessee filed an application u/s.154 of the Act with the AO to allow the said deprecation. However, the same has not been disposed off by the AO. In view of our finding given above, this ground is decided accordingly. If the assessee has moved any application u/s.154 on this issue, the AO will dispose off the said application also while giving effect to our order on this issue.
Interest on loans and advances given to subsidiary company - HELD THAT:- No infirmity in the order of the Ld. CIT(A) in deleting this disallowance. This issue is accordingly decided against the Revenue.
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2015 (2) TMI 1364
Unexplained investment - difference in the investment disclosed by the assessee and as estimated by DVO in purchase of house property - condition precedent for making reference to the DVO u/s.142A - HELD THAT:- As in the present case the revenue could not establish that there is any material suggesting that the assessee paid any amount over and above the declared consideration. In term of the provisions of section 142A the reference to DVO can be made only when there is a requirement by the AO for making such reference and such requirement would arise when there is some material with the AO to show that whatever estimate or consideration declared by assessee is not correct or not reliable. The use of the word ‘require’ is not superfluous but signifies a definite meaning, whereby formation of mind even preliminary on objective basis by the AO is very much necessary.
From the bare reading of assessment order, it does not suggest that there is any material which indicates that the assessee has paid any amount over and above the declared consideration for the purpose of making addition of unexplained investment u/s. 69 or 69B of the Act. In the absence of the same, the CIT(A) has rightly deleted the addition. We confirm the same. This issue of revenue’s appeal is dismissed.
Low drawing for household expenses - CIT(A) directed the AO to delete the addition on account of low withdrawals since the AO made the addition on suspicion without considering the submission that apart from his drawings that there are drawings by his wife as well as drawings from HUF of which assessee is the Karta - HELD THAT:- The household drawing has merely been estimated by the AO without pointing out any specific expenditure being incurred by the assessee. We have gone through the provisions of section 69C of the Act and we noted that there must be evidence on record which may prove that the assessee had incurred expenses much more than what has been shown by the family members. In case the Revenue got shifted to the assessee to offer explanation about the source of such expenses to the satisfaction of the AO. Apparent is real onus is on the person who alleges apparent is not real. Our aforesaid view is duly supported by the decision of Daulat Ram Rawatmall ([1972 (9) TMI 9 - SUPREME COURT] - Hence, we find no infirmity in the order CIT(A) and the same is hereby upheld. This ground of revenue’s appeal is dismissed.
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2015 (2) TMI 1363
Declaration of title and possession of immovable property - suit for specific performance - Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- Rejection of the plaint Under Order VII Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power Under Order VII Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law.
In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the Plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application Under Order VII Rule 11 the stand of the Defendants in the written statement would be altogether irrelevant.
The order of the High Court dated 26th June, 2003 has to be reversed - Appeal disposed off.
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2015 (2) TMI 1362
Benami transaction - ownership of the plaintiff over the suit property - right of coparcener in the Hindu Undivided Family - father of the plaintiff has gifted the suit property in favour of the plaintiff - case of the defendant is that there was an oral family settlement by virtue of which the suit property has come into the favour of the defendant - HELD THAT:- The defendant has admitted in his pleading that the father of the plaintiff was the owner of the suit property which has been admittedly gifted to the plaintiff by her father. In case any amount is spent for the purpose of construction of the suit property as alleged by the defendant, the suit for recovery of said amount ought to have been filed. There is no written document at all between the two families of any nature. On the otherhand, the gift deed is a registered document which is within the knowledge of the defendant and other family members. All the pleas raised by the defendant are dishonest defence, which has no bearing in the eyes of law. The entire defence is moonshine which are raised in order to confuse the Court. Hence, no trial in the matter is required. In the present case, as the defendant is merely a licensee, the suit filed by the plaintiff for mandatory injunction is maintainable in view of peculiar facts and circumstances. Thus, the objection of the defendant is rejected.
It is a rule of law of evidence, which is also known as the "best evidence rule" that in case a written document is available, no oral evidence can be lead in that regard. In the present case, in the face of a document in writing, the pleas of the defendant cannot be permitted to be taken and are barred by the provision of Section 92 of the Evidence Act.
As defendant has no right or interest in the suit property. It appears to the Court that the contention raised by the defendant is an afterthought and the defence raised by the defendant is moonshine. Therefore, trial in the matter is not required in view of registered titles in favour of the plaintiff for the last thirty years which are unchallenged by the defendant. On the contrary, the defendant has failed to enforce an alleged oral family settlement which is denied by the plaintiff and the materials placed on record do not give any indication to establish the pleas raised by the defendant. Therefore, a decree is liable to be passed in favour of the plaintiff and against the defendant in view of the settled law.
Order - Pass a decree in favour of the plaintiff and against the defendant for mandatory injunction whereby directing the defendant to remove all his belongings from the portion of the property bearing No.205, AGCR Enclave, Delhi.
Pass a decree of permanent injunction in favour of the plaintiff and against the defendants whereby permanent restraining the defendants for creating any third party interest in the said suit property and further permanently restraining them to part with the possession of the suit property and further permanently restraining the defendant from interfering with the peaceful possession of the plaintiff in the suit property
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2015 (2) TMI 1361
Depreciation on non compete fee at 25% - Depreciation on intangible assets - According to the ld. DR right to personal services under a contract of service is un-assignable; it cannot be bought or sold and as no actual marketable value and so it cannot be an asset - HELD THAT:- As decided in Pentasoft Technologies Ltd. [2013 (11) TMI 1057 - MADRAS HIGH COURT] where assessee carrying on business in software development etc. entered into an agreement with one ‘P’ for hiving off and transfer of software development and training divisions from ‘P’ and paid certain amount to ‘P’ towards acquisition of intellectual property rights and non compete fee, since agreement between parties was a composite agreement, assessee was entitled to depreciation on intellectual property rights as well as on non compete fee. Therefore, the assessee is entitled for depreciation in non-compete fee paid - Decided against revenue.
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2015 (2) TMI 1360
Reopening of assessment u/s 147 - validity of notice issued u/s 148 - reason to believe or reason to suspect - suppression of sales - As per AO sale found by the Excise Department to have been suppressed for levy of excise duty has escaped assessment under the Income Tax Act - whether the reasons as recorded in the instant case was a valid reason for forming a belief of escapement of income tax of the income, which is otherwise assessable to income-tax? - HELD THAT:- AO conclusion that the show cause notice issued by the Excise Department is foolproof and substantial material evidence of suppression of sales is contrary to the decision of Futura Ceramics Pvt. Ltd.[2012 (12) TMI 955 - GUJARAT HIGH COURT] wherein held that Merely because the Excise Department issued a show cause notice, that cannot be a ground to presume and conclude that there was evasion of excise duty implying thereby that there was also evasion of tax under the VAT Act.
Show cause notice issued by the Excise Department contains the allegation of the Excise Department that the assessee has suppressed sales for the purpose of making payment of excise duty. A perusal of recorded reasons does not show that the AO verified the particulars declared by the assessee in its income-tax return. Nowhere in the recorded reasons, the sale declared by the assessee in its income-tax return, has been brought on record.
Information contained in the show cause notice of the Excise Department can be reason to suspect by the AO, but without verifying the relevant particulars declared in the income-tax return, it cannot be reason to believe about the escapement of taxable income under the Income Tax Act. Reopening of the assessment based on the above recorded reasons, is bad in law and cannot be sustained - Decided in favour of assessee.
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2015 (2) TMI 1359
Seeking reduction of the share capital - HELD THAT:- There is no impediment to accept the said resolution. Consequently, the petition is allowed.
The order including the minutes shall be delivered to the Registrar of Companies within twenty one days from the date of receipt of a certified copy of this order. The notice of reduction of paid-up equity share capital and securities premium account, shall be published in the English Daily ‘The Hindu’ and Kannada Daily ‘Udaya Vani’ Bangalore edition within fifteen days from the date of registration of the order and minutes by the Registrar of Companies and a copy thereof shall be filed by the petitioner with the Registry.
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2015 (2) TMI 1358
Sanction of Scheme of Amalgamation - Sections 391 to 394 of the Companies Act, 1956 - HELD THAT:- The Scheme states that there is no objectionable feature in the Scheme of Amalgamation detrimental either to the employees of the Transferor Company or of the Transferee Company. The said Scheme is not violative of any statutory provisions. The Scheme is fair, just, sound and is not against any public policy or pubic interest. No proceedings are pending under Sections 231 to 237 of the Companies Act, 1956. All the statutory provisions are complied with.
It is apt and appropriate to point out that the Court is given wide powers under Section 391 of the Companies Act, 1956, to frame a Scheme for the revival of a Company. Section 391 is a complete Code under which the Court can sanction a Scheme containing all the alterations required in the structure of the Company for the purpose of carrying out the Scheme. In considering a Scheme under Section 391, the Court should be satisfied (1) that the statutory provisions are complied with, (ii) that the class affected by the Scheme has been properly represented and (iii) that the arrangement is such that a man of business would reasonably approve - the Scheme is passed through the procedure laid down under Section 391 of the Companies Act and approved by the majority of the shareholders, there do not exist any necessity to have a repeated compliance of the same in terms of Section 21 of the Companies Act, as amended as Section 13 of the 2013 Act.
Application allowed.
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2015 (2) TMI 1357
Rejection of application for grant of land line connection - rejected on the ground that the area is not feasible - HELD THAT:- The petitioner is running an Educational Institution, said to be an International School with 650 students. For the safety of the students, the land line connection is essential and the respondent organisation being the limb of the Government should extend all supports to enable persons more particularly Schools and Educational Institutions to take land line connections. The petitioner being International School should bear the cost of cable connection charges. Therefore, the respondent should approach the matter in a pragmatic way so that they can extend the land line connection to the said Educational Institution at the earliest.
Further, the reference to clause 7 B of Indian Telegraph Act by the respondent, that the petitioner has to refer to Arbitration, is thoroughly misconceived, as section 7 B of the Act would be permitted only in case of dispute between the subscriber and the BSNL/service provider. In the instant case, the connection is yet to be provided and no agreement has been entered and therefore the petitioner need not be driven to refer to arbitration proceedings.
The matter is remanded to the respondent for fresh consideration - Petition allowed by way of remand.
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2015 (2) TMI 1356
Demand of differential premium made by the first respondent to the petitioner as a condition for transfer of the said plot in the name of the petitioner - Involuntary transfer or not - formal or informal transfer - circular dated 12th May, 1998 - HELD THAT:- The circular incorporates transfer guidelines for the industrial and other plots. The said guidelines have been issued in super-session of all earlier guidelines. The said circular divides the transfers into two categories, formal transfers and non-formal transfers. The learned counsel appearing for the petitioner relied upon clause 3 of the first part dealing with formal transfers - The said clause 3 applies to involuntary transfers including amalgamation, demergers etc. under the direction of the appropriate Court. In the present case, the said plot was put to auction and the petitioner has voluntarily opted to participate in bid. Therefore, clause 3 will not apply to the said transfer.
The case of the petitioner will not fall in the category of formal transfers.
Circular dated 12th December, 2011 - HELD THAT:- It is true that the said circular is issued by way of clarification to the circular dated 12th May, 1998. However, the said circular clearly records that the same will apply only to the applications for transfer received after 12th August, 2011 - In the present case, admittedly the application made by the petitioner was prior to the said date. It is true that in the letter dated 30th December 2013, there is a reference to the circular dated 12th November, 2011. However, it is merely stated therein that the said circular is by way of clarification. As stated earlier, the said clarification will apply prospectively and it cannot not be applied to the applications which were pending.
The demand for payment of 30% differential premium is strictly in terms of the policy reflected from the circular dated 12th May, 1998 - there is no no error in the demand made by the first respondent for payment of 30% differential premium as a condition for transfer - petition dismissed.
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2015 (2) TMI 1355
Depreciation on road/bridge - assessee is in the business of development of infrastructural facilities and developed a bye-pass road / bridge in Coimbatore - HELD THAT:- We find that the ld. CIT(A) by following the decisions of the Tribunal in assessee’s own case for the assessment years 2002-03 to 2004-05 & 2006-07 [2010 (11) TMI 1040 - ITAT CHENNAI] directed the Assessing Officer to allow the claim of the assessee - Decided in favour of assessee.
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2015 (2) TMI 1354
Constitutional Validity of Rule 159 of the High Court of Jharkhand Rules, 2001 - violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973 - Section 498-A of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act - Rule 6 of Order XXI of the Supreme Court Rules, 1966 - HELD THAT:- It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners.
There are no merit in the challenge to the validity of the Rule. It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners.
It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus, be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case.
There are no ground to hold that the impugned Rule suffers from any infirmity - petition dismissed.
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2015 (2) TMI 1353
Business connection in India u/s 9(1)(i) - profits attributable to India - attribution of taxable income to the so called ‘business connection’ in India - HELD THAT:- This decision has been reiterated by the Tribunal in A.Y. 2008-09 vide order dated 21.05.2014 [2014 (5) TMI 1209 - ITAT MUMBAI] Thus, without going into other decision of the Tribunal as cited by Ld. DR, we respectfully following the judicial precedence of the earlier years, decide this issue in favour of the assessee by holding that the assessee’s income from transportation agreement cannot be taxed in India under the deeming provision of section 9(1)(i) as USIPL cannot be said to constitute business connection in India. Accordingly, Ground No. 1 as raised by the assessee stands allowed.
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2015 (2) TMI 1352
Seniority list displayed as provided in Rule 81 of the Industrial Disputes (Bombay) Rules, 1957 or not - alleged breach of the provisions of the Industrial Disputes (Bombay) Rules, 1947 - alleged breach of Rule 81 of the Industrial Disputes (Bombay) Rules - breach of Section 25F(b) of the I.D. Act 1947 or not - unfair labour practice, as pleaded, by not sending notice to the Government Under Section 25F(c) of the I.D. Act, 1947 - unfair labour practice as contemplated by Section 25G of the I.D. Act 1947, by not following the principle of last come first go - custom, practice or usage has become an agreement, settlement or award, and breach thereof - Section 9-A of the I.D. Act, 1947.
HELD THAT:- The statutory provisions contained in Section 25FFA of the I.D. Act mandate that the Company should have issued the intended closure notice to the Appropriate Government should be served notice atleast 60 days before the date on which it intended to close down the concerned department/unit of the Company. As could be seen from the pleadings and the findings recorded by the Industrial Court, there is a categorical finding of fact recorded that there is no such mandatory notice served on the State Government by the Appellant-Company. The object of serving of such notice on the State Government is to see that the it can find out whether or not it is feasible for the Company to close down a department/unit of the Company and whether the concerned workmen ought to be retrenched from their service, made unemployed and to mitigate the hardship of the workmen and their family members. Further, the said provision of the I.D. Act is the statutory protection given to the concerned workmen which prevents the Appellant-Company, from retrenching the workmen arbitrarily and unreasonably & in an unfair manner.
The cumulative reading of the Statement of Reasons, the retrenchment notice served on the concerned workmen, the pleadings of the Appellant-Company and in the absence of evidence on record to justify the action of retrenchment of concerned workmen on the alleged closure of the department/unit of the Appellant-Company is shown as bona fide. However, the concurrent finding of fact recorded by the High Court on this aspect of the case cannot be held to be bad in law by this Court in exercise of its Appellate Jurisdiction in this appeal.
It is very clear from the averments of the Appellant-Company in its written statement that its action in retrenching the workmen is sought to be justified before the Industrial Court, which, in fact, is not justified on the basis of evidence on record. It is clear from the pleadings at paragraphs 3 and 4 of the written statement filed by the Appellant-Company before the Industrial Court which would clearly show that the action of the Appellant-Company is a clear case of mala fide which cannot be sustained in law - the concurrent finding of fact recorded by the High Court with regard to non-compliance of Section 25G of the I.D. Act by the Appellant-Company is also the statutory violation on the part of the Appellant-Company in retrenching certain concerned senior workmen. Therefore, the courts below have rightly answered the issue against it. Hence, the same cannot be termed as erroneous for our interference.
Principle of 'last come first go' - HELD THAT:- The principle of 'last come first go' should have been strictly adhered to by the Appellant-Company at the time of issuing retrenchment notice served upon the concerned workmen as provided Under Section 25G of the I.D. Act read with Rule 81 of the Bombay Rules which is not properly complied with by it for the reason that the custom clearance and dock clearance are totally different departments and it has retained 7 workmen who are undisputedly juniors to the concerned workmen, which action is sought to be justified by the Appellant-Company without giving justifiable reasons. Further, no category wise seniority list of the workmen was displayed on notice board of the Appellant-Company as required in law.
The order dated 14.08.2006 extending protection to the Appellant-Company shall stand vacated - Appeal dismissed.
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2015 (2) TMI 1351
Dishonor of Cheque - legally enforceable debt - rebuttal of presumption or not - defence of the accused is that the demand promissory note and cheque were forcibly taken - Section 138 of Negotiable Instruments Act - HELD THAT:- In the cases of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT], the Apex Court has explained as to how the presumptions under the Evidence Act as also under the N.I. Act could be rebutted and the concept of standard of proof, in cases under Section 138 of the N.I. Act. There can be no dispute about the propositions laid down in the above cases and the is duly considered.
There are no perversity or jurisdictional error has been shown with regard to the impugned judgment and order - Revision Application is dismissed.
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2015 (2) TMI 1350
Maintainability of grounds of appeal taken before the tribunal - Tribunal justification in law to hold that the grounds of Appeal Nos.1,2 and 3 taken by the Appellant before the Tribunal, are not maintainable and these do not arise out of the order of the CIT(A), as the CIT(A) had dismissed these grounds in limine.?- HELD THAT:- The impugned order of the Tribunal has not dealt with the Appellant's appeal before it with regard to ground Nos. 1, 2 and 3 on the ground that same does not arise out of the order of the Commissioner of Income Tax (Appeals) [CIT(A)]. The record indicates that the Respondent Assessee's urged these grounds before the CIT(A). Moreover, the CIT(A) also deals with the grounds in his order.
Respondent Assessee's are put to notice that on the next occasion, Appeal would be disposed of
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2015 (2) TMI 1349
Notary Act took place outside India - "Duly authorised" by the petitioning-creditors to make and file the affidavit verifying the instant winding-up petition on the basis of the direction given by this Court - whether this Court can recognize a notarial act which took place before a notary public at Singapore? - HELD THAT:- Since there is clearly no such notification of the Central Government in the Official Gazette granting recognition to the notarial acts done by the notary public of Singapore, this Court is unable to take any judicial recognition of the document which has been handed over before this Court by the learned senior counsel appearing on behalf of the petitioners - In the absence of the documents which were required to be produced before this Court in terms of the order dated 27th January, 2015, it cannot be held that the deponents have been "duly authorised" by the petitioning-creditors to make and file the affidavit in support of the winding-up petition. This Court, therefore, is left with no option but to reject the petition.
Petition dismissed.
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2015 (2) TMI 1348
Weighted deduction @ 150% u/s. 35(2AB) on expenses incurred on clinical trial - Diversified views - one hand there are decisions of the Tribunal which are in favour of the Revenue and against the assessee and on the other hand we have a decision of the Hon’ble High Court which is in favour of the assessee and against the Revenue - HELD THAT:- The answer lies in the decision of the Tribunal Ahmedabad Bench in the case of Kanel Oil & Export Inds [2009 (8) TMI 806 - ITAT AHMEDABAD-C] wherein held A simple answer would be that the judgement of a High Court, though not of the Jurisdictional High Court, prevails over an order of the Special Bench even though it is from the Jurisdictional Bench of the Tribunal on the basis of the view that the High Court is above the Tribunal in the judicial hierarchy. The Tribunal further observed that this simple view is subject to some exceptions. It can work efficiently when there is only one judgement of a High Court on the issue and no contrary view has been expressed by any other High Court.
Before us, the decision of the Tribunal in assessee’s own case is against the assessee but as pointed out elsewhere the decision of the Hon’ble Gujarat High Court in Cadila Healthcare [2013 (3) TMI 539 - GUJARAT HIGH COURT] was pronounced later on and therefore the Tribunal did not have the benefit of the decision of the Hon’ble Gujarat High Court. Now that we have the benefit of the decision of the Hon’ble Gujarat High Court as mentioned hereinabove, we are following the decision of the Hon’ble Gujarat High Court and accordingly we set aside the findings of the Ld. CIT(A) and direct the AO to allow the claim of weighted deduction u/s. 35(2AB) in respect of clinical trials as claimed by the assessee. Ground No. 1 is accordingly allowed.
Weighted deduction in respect of (a) consultancy fees (b) patent fees as per patent Act and PCT and (c) patent filing fees not as per patent Act. - HELD THAT:- The claim of weighted deduction in respect of consultancy fees and patent filing fees as per patent Act are concerned, the Tribunal has considered this issue in A.Y. 2007-08 [2012 (9) TMI 43 - ITAT MUMBAI] The Tribunal has considered this issue at para 33 of its order and at para-34 allowed the claim. As no distinguishing facts have been brought on record, respectfully following the decision of the Co ordinate Bench, weighted deduction on consultancy fees and patent filing fees as per patent Act are directed to be allowed.
Patent filing fees which is not according to the patent Act and PCT, we find that the same is allowable as per the decision of the Hon’ble Gujarat High Court in the case of Cadila Healthcare [2013 (3) TMI 539 - GUJARAT HIGH COURT] Respectfully following the findings of the Hon’ble Gujarat High Court, we direct the AO to allow the claim of weighted deduction on patent filing fees which is not as per patent Act and PCT. Ground No. 2 is accordingly allowed.
Weighted deduction on eligible expenses incurred by the assessee but not considered by DSIR - HELD THAT:- Before us it is claimed that the Tribunal had accepted assessee’s contention for A.Y. 2007-08 that DISR certificate is only for certifying the facilities of Research and Development activity undertaken by the assessee and not a certificate for expenditure incurred by the assessee. After carefully perusing the orders of the authorities below and the factual matrix brought to our notice, in our considered opinion, these expenditures need to be allowed as and when approved by the DISR. We, accordingly, restore the matter back to the files of the AO with a direction to allow the weighted deduction as and when DISR approval is received. Ground No. 3 is treated as allowed for statistical purpose.
Non allowance of deduction u/s. 80IB and 80IC of the Act on interest from customers of eligible unit - HELD THAT:- This issue is squarely covered in favour of the assessee and against the Revenue by the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs Vidyut Corporation [2010 (4) TMI 229 - BOMBAY HIGH COURT] There can be no dispute about the position that the price realized by the assessee from the sale of goods manufactured by the industrial undertaking constitutes a component of the profits and gains derived from the eligible business. The purchaser, on account of the delay in payment of the sale price also pays to the assessee interest. This forms a component of the sale price and is paid towards the lag which has occurred in the payment of the price of the goods sold by the assessee. On these facts, therefore, the payment of interest on account of the delay in payment of the sale price of the goods supplied by the undertaking partakes of the same nature and character as the sale consideration . The delayed payment charges consequently satisfy, together with the sale price, the first degree test –Liberty India [2009 (8) TMI 63 - SUPREME COURT] We, direct the AO to allow the claim of deduction in respect of interest from customers u/s. 80IB and 80IC of the Act in respect of the eligible units.
Additional ground in respect of deduction u/s. 35(2AB) on gross expenditure without reducing (a) income from sale of products from R &D work (b) income from sale of R&D assets - HELD THAT:- This claim is being made for the first time before the Tribunal and never claimed in the return of income. The Hon’ble Jurisdictional High Court of Bombay in the case of CIT Vs Pruthvi Brokers & Shareholders Pvt. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT] has held that the assessee is entitled to raise additional grounds not merely in terms of legal submissions, but also additional claims to which claims not made in the return filed by it wherein the Hon’ble High Court has followed the ratio laid down by the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. [1996 (12) TMI 7 - SUPREME COURT] Drawing support from these decisions, the additional grounds are admitted. The matter is restored to the file of the AO. The AO is directed to verify the claim of the assessee and allow the same after verification in the light of the decision of the Tribunal in the case of ACIT Vs Wockhardt Ltd. [2012 (5) TMI 823 - ITAT MUMBAI]
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