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Showing 61 to 80 of 1464 Records
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2016 (3) TMI 1414
Sanction of the Scheme of Amalgamation - section 391 and 394 of Companies Act - HELD THAT:- In view of the approval accorded to the scheme by the shareholders, secured and unsecured creditors of the petitioners and, given the fact, that the RD and the OL have not articulated any objections qua the scheme, as indicated above, in my opinion, there appears to be no impediment in the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act. The petitioners will, however, comply with all statutory requirements, as mandated in law.
It is directed that the petitioners will comply with all provisions of the scheme - Petition allowed.
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2016 (3) TMI 1413
Deduction u/s.10B - ‘manufacture’ defined u/s.2(29BA) - manufacture and usage of conversion of granite block into monuments - HELD THAT:- The main requirement of product is activity should be in manufacturing items and should result in transformation of the object or article or thing into a new and distinct object with different character. The granite raw block is mounted and with the process of cutting, clipping and polishing into a monument has distinct character and usage.
As considering the apparent facts, definitions, usage and the process of manufacturing, and assessee’s own case on the nature of business of manufacturing of monuments and the process of conversion of raw material into finished product is identified and saleable and we rely on Apex Court decision of Arihant Tiles & Marbles (P) Ltd [2009 (12) TMI 1 - SUPREME COURT] were the lordship has considered conversion of marble block into polished slabs and tiles constitutes manufacture and same analogy apply for process of granite block. Therefore, we are not inclined to interfere with the order of Commissioner of Income Tax (Appeals) who has dealt the issue in detail viz-a-viz the explanations of the assessee and we uphold the order of the Commissioner of Income Tax (Appeals) and dismiss the Revenue appeal.
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2016 (3) TMI 1412
Stay of the recovery of the impugned balance/tax amount and interest - As stated that the impugned demand has been made by the AO taking into consideration the expected profits from his business of distributorship of Sony Channels estimated for seven years whereas the assessee has actually acquired the ownership rights of the channels after 4 years - as stated that if the demand raised by the AO on estimation basis for 7 years is considered for 4 years as the assessee has obtained the ownership rights of the channels after 4 years, in that event, the resultant figure will result into refund due to the assessee - HELD THAT:- We find that there is a prima-facie case in favour of the assessee. We therefore stay the recovery of the balance taxes including interest etc. relevant to the assessment year under consideration for a period of six months or till the disposal of the appeal of the assessee on merits, whichever is earlier.
The appeal is fixed for an early hearing on 14.06.16 - assessee will not contribute in delaying the hearing of the appeal and will not take any unnecessary adjournments in default, the stay will be deemed to be vacated. Our above observations will not have any bearing on merits of the case at the time of its final disposal.
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2016 (3) TMI 1411
Validity of reopening of assessment u/s 147 - notice beyond the period of four years - assessee had claimed deduction by way of carry forward of unabsorbed depreciation beyond the period of eight years - HELD THAT:- We do not find it necessary to interfere with the orders of the CIT (A) because it came to the notice of the AO that the assessee had claimed the benefit of carry forward of unabsorbed depreciation beyond the period of eight years which was not permissible during the intervening few assessment years. AO had a valid reason to believe that income had escaped to be taxed in the hands of the assessee. Hence, we uphold the decision of the Revenue on this issue.
Withdrawing the benefit of set off of unabsorbed depreciation beyond the period of eight years - HELD THAT:- As relying on M/S. BEST & CROMPTON ENGINEERING LTD. [2015 (3) TMI 977 - ITAT CHENNAI] hereby direct the learned Assessing Officer to allow the benefit of carry forward unabsorbed depreciation beyond the period of eight years.
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2016 (3) TMI 1410
Estimation of expenses incurred for capital work-in-progress - CIT-A restricting addition made by the AO towards the estimate of 5% instead of 10% of expenses - HELD THAT:- Since there is no change into the facts in the present case and the Revenue has not brought any contrary-material on record, we have no other different view than taken in assessee’s own case for AY 2008-09 [2015 (12) TMI 1550 - ITAT AHMEDABAD] - we direct the AO to adopt the disallowance towards employee cost @ 1% and the administrative and other expenses @ 1% as adopted in AY 2008-09 and compute the disallowance in the light of the above decision of the Coordinate Bench.
Disallowance u/s 14A - suo motu disallowance made by the assessee - HELD THAT:- As decided in own case [2015 (12) TMI 1550 - ITAT AHMEDABAD] restricted the disallowance as were made by the assessee. In the present case, facts are identical, as the AO has not recorded as to how the expenditure as claimed by the assessee is not satisfactory, which is a condition precedent before applying the Rule 8D of the Income Tax Rules, 1962. Under these facts, we hereby delete the disallowance as were made by the AO. Thus, this ground of assessee’s appeal is allowed.
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2016 (3) TMI 1409
Addition on account of unconfirmed unsecured loans - Addition u/s 68 - HELD THAT:- As assessee during the course of proceedings had filed necessary information in respect of companies and had filed confirmations also and therefore, the additions sustained by learned CIT(A) is not as per provisions of law because of the fact that amount of ₹ 35,00,000/- was not found credited during the year as it is was only the opening balance carried forwarded from earlier years. In view of the judidical precedents relied upon by learned AR and in view of the facts and circumstances of the case, we allow Ground No.2. As regards argument of learned DR that section 68 was not applicable and rather it was taxable u/s 41(1) of the Act we do no agree with the arguments of learned DR as even addition u/s 41(1) cannot be made as assessee had not written back the amount during the year and had declared the same as debt of the company in its balance sheet.
Addition being an amount reimbursed to M/s Goetze (India) Ltd., M/s Gossini Fashions Ltd. and M/s Akme Projects Ltd.- HELD THAT:- We find that this argument was taken before us and learned CIT(A) also had obtained remand report from AO and during remand proceedings the AO had made adverse comments in this respect and in response to remand report the assessee vide letter dated 21.02.2014 had again submitted that nature of expenses and details of cheques and bank account details of payee of each and every item of expenditure was submitted and as regards vouchers and nature of expenses the assessee had submitted that they were carried to Jammu but AO unfortunately was on tour, therefore, this could not be produced before him, therefore, in the interest of justice we restore this ground to the Office of Assessing Officer who on the basis of vouchers and nature of expenses should decide the issue afresh. The Assessing Officer should also examine the claim of the learned AR that a part of expenses was not debited to P&L Account and was taken to balance sheet. In view of the Ground No.3 is allowed for statistical purposes.
Disallowance of 75% of Foreign Traveling Expenses of Directors - HELD THAT:- We find that there is no doubt about the proposition that foreign traveling expenses are allowable as a deduction if the expenses are incurred for the purposes of business. We also agree that expenditure on Foreign Travel may not result into increase in new agreements for business but the fact remains that the assessee has to first prove that expenses were incurred for the purposes of business. In respect of claim of such expenses the assessee could have filed some correspondence with the persons of visited country with whom they had explored further business opportunities or it could have filed the details of meetings and discussions with the persons with whom such business opportunity was discussed. No such details has been filed before the authorities below during original/or remand proceedings nor an argument has been made before us that the assessee can file these details before the authorities below. The assessee did not file any evidence to substantiate its claim other than break up of traveling expenses. Moreover, the learned CIT(A) has made a finding of fact that there is no business of the company in the visited countries and expenditure also included expenses on personal attendants of Directors. Therefore, we do not find force in the argument of learned AR that the expenses were incurred for the purposes of business. In view of the above, Ground No.4 is dismissed.
Disallowance of legal and profession - HELD THAT:- As CIT(A) obtained remand report from Assessing Officer. In this respect, the Assessing Officer could find evidence in respect of only ₹ 7,60,724/- during remand proceedings and for the remaining amount of ₹ 10,61,949/- no documents/evidence was provided during original as well as remand proceedings - AR in his submissions has submitted that when vouchers were carried to Jammu for verification by AO, he was found to be on tour therefore, in the interest of justice this ground is restored to the office of Assessing Officer who will consider the allowability of same after verification of vouchers. In view of the above, Ground No.5 is allowed for statistical purpose.
100% disallowance of Telephone expenses and telegram expenses - HELD THAT:- We find that there is no dispute that no bill was in the name of assessee’s company or its employees, however, it is also a fact that no office can be run without incurrence of these expenses. The learned CIT(A) has upheld the addition in the absence of valid evidence in respect of these expense - AR during appellant proceedings before us had submitted that bills were in the name of M/s Goetze India and a part of expenses were charged to assessee company. Therefore, we restore this ground of appeal to Assessing Officer who should decide the issue afresh after taking into account the basis of charging of these bills to the assessee. He can arrive at the decision after taking into account the practice of assessee in allocation of these expenses in earlier years. In view of the above, Ground No.6 is allowed for statistical purposes.
Deemed dividend u/s 2(22)(e) - ICD v/s loan - HELD THAT:- As the amount of ₹ 18.75 crores received by it was a not an ICD but was a loan. We find that ICD means inter-corporate deposits which term is used for making or accepting deposits between two companies. ICD as the name also suggest that it is a part of broader term deposits and therefore, it cannot be distinguished from the deposits as argued by learned AR. The case laws relied by AR relates to distinction between loans and deposits and none of the case laws relates to distinction between deposits and ICD, therefore, case laws as relied up by learned AR are not applicable to the facts and circumstances of the case. Therefore, we hold that ICD is a part of deposits and is not different from broader definition of deposits and therefore, we do not find any force in the argument of learned AR that ICD are different than loans or deposits and in fact it is part of deposits.
Deemed dividend addition - HELD THAT:- Provisions of section 2(22)(e) are not applicable to the assessee as it was not a shareholder in the lending company. In view of the above, Ground No. 1 of Revenue’s Appeal is dismissed.
Notional interest on interest free advances - HELD THAT:- We find that that AO in his remand report has reported that most of the amount represented charges receivable from parties and amount receivable were in the nature of debtors and did not represent cash advances. The Assessing Officer also mentioned that out of advances ₹ 60,00,000/- was for purchase of vehicles and ₹ 26,40,560/- was on account of amount embezzled by an employee, therefore, learned CIT(A) has rightly deleted the addition and we do not find any infirmity in the same, therefore, Ground No.4 is also dismissed.
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2016 (3) TMI 1408
Validity of attachment order - order of attachment passed without passing assessment order - opportunity to put forth the case also not provided - HELD THAT:- Indisputably the petitioner was not given an opportunity before passing the impugned order of attachment. In such view of the matter, the impugned order is liable to be set aside and the same is set aside. The second respondent shall pass order afresh, after giving opportunity to the petitioner and in accordance with law and the petitioner is directed to appear before the second respondent, within a period of two weeks, from the date of receipt of a copy of the order, failing which, the impugned order will hold good.
The petition is disposed off.
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2016 (3) TMI 1407
Seeking compensation in the letter pending before the Finance Minister of Assam against its liability of Agricultural Income Tax for the assessment year 2014-15 - seeking adjustment of refund and interest - HELD THAT:- The petitioner is stated to have filed an application on 31-03-2014, under Section 39A of the Act before the Chief Secretary, Government of Assam, for remission of future tax liabilities with a copy endorsed to the Finance Minister of Assam. The respondent No. 4, however, did not consider the claim of the petitioner and passed the impugned Order of Assessment, dated 04-07-2015 and issued the impugned Notice of Demand, dated 01-09-2015 for the assessment year 2014-15. It is against the impugned order of assessment and the impugned notice of demand that this writ petition has been filed.
The writ petition is disposed by directing the respondent authorities to consider the application of the petitioner filed under Section 39A of the Act and consider the question of taking such necessary action for adjustment of the assessed refund and interest that may be due to the petitioner from the assessment year 1986-87 to the assessment year 1992-93 and to make a fresh assessment in respect of the assessment year 2014-15.
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2016 (3) TMI 1406
Prosecution u/s 276CC - as per the Notice under section 153A, the return of income was to be filed by 12th October 2013 which the petitioner has failed - HELD THAT:- Under Section 153A A.O shall also assess or reassess the total income in respect of each assessment year falling within such six assessment years.
Section 276CC of the Act under Chapter XXII- “Offences & Prosecution” provides for prosecution for failure to furnish return of income, if a person willfully fails to furnish in due time, the return of income which he is required to furnish under sub-section (1) OF Section 139 or by notice given under clause (1) of sub-section(1) of section 142 or section 148 or section 153A, he shall be punishable [i] in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extent to seven years and with fine; [ii] in any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.
Section 279 pertains to prosecution at the instance of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. Sub-section (2) of Section 279 provides that any offence under this Chapter may, either before or after the institution of proceedings, be compounded by the Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General.
The Apex Court in case of Prakash Nath Khanna & Ors.[2004 (2) TMI 3 - SUPREME COURT] held that the expression “in due time” occurring in Section 276CC means within the time stipulated in Section 139[1] and not the time postulated in Section 139 [4] - filing of the return under section 139 [4], even though without any notice from the Assessing Officer to do so does not satisfy the requirement of section 139 [1] and attracts Section 276-CC. Thus, in view of clear provisions of Section 276 attempt to reach a different conclusion by placing reliance on marginal heading or explanatory memo laid before the Parliament at the time of introduction of that section is impermissible.
With respect to quashing criminal proceedings under Article 226 of the Constitution of India, the Apex Court held and observed that if the accused challenges the prosecution on the grounds that [a] there was no concealment of income and the allegation of tax evasion was based on no evidence, [b] the delay in filing returns happened in unavoidable circumstances and without any guilty mind, the absence of culpable mental state could be pleaded in defence at the criminal trial and the factual allegations raised by the writ petitioner-accused could then be considered by the trial Court.
Thus this group of petitions deserve no consideration and are accordingly dismissed.
Needless to say that all the contentions raised before this Court by the petitioners shall be available to them at the time of trial and dismissal of these petitions and any of the observations made shall not come in the way of the parties concerned, nor it could be regarded by the Court concerned which shall adjudicate the matters on its own merits.
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2016 (3) TMI 1405
Condonation of delay - eligible reasons of delay - delay of 668 days on the part of the assessee in filing the present appeal before the Tribunal - delay of 533 days in filing its appeal before the ld. CIT(Appeals) - HELD THAT:- Assessee has not got any benefit by filing its appeal late before the ld. CIT(Appeals) as well as before the Tribunal. There is also nothing to show that such delay is occasioned deliberately or on account of culpable negligence or on account of malafide. There is also nothing to show that the assessee has resorted to dilatory tactics. Keeping in view all these facts of the case and the guidelines laid down by the Hon’ble Supreme Court in the case of Collector Land Acquisition –vs.- Mst. Katiji & Others [1987 (2) TMI 61 - SUPREME COURT] and by the Hon’ble Jurisdictional High Court in the case of Indian Oil Corporation Limited –vs.- CEGAT & Others [2002 (5) TMI 885 - CALCUTTA HIGH COURT] the delay on the part of the assessee in filing his appeal before the ld. CIT(Appeals) as well as before the Tribunal is required to be condoned in the interest of substantial justice as the same was resulted due to sufficient cause. Appeal of the assessee is allowed
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2016 (3) TMI 1404
Disallowance u/s 14A - CIT(A) restricted the disallowance - HELD THAT:- We have also noted that in the recent judgment of Hon’ble High Court of Bombay in the case of HDFC Bank Ltd.[2016 (3) TMI 755 - BOMBAY HIGH COURT] has approved the proposition that no disallowance of expenditure can be made u/s 14A of the Act with respect to the shares held by tax payers as stock-in-trade whereby the decision of the Mumbai Tribunal in India Advantage Securities Limited . [2012 (11) TMI 458 - ITAT, MUMBAI] was confirmed by Hon’ble Bombay High Court [2015 (6) TMI 140 - BOMBAY HIGH COURT] whereby Hon’ble Bombay High Court held that no substantial question of law arise from the decision of Mumbai Tribunal in the case of India Advantage Securities Private Limited. Respectfully following the above binding judicial precedents of Hon’ble Bombay High Court in India Advantage Securities Private Limited and HDFC Bank Limited(supra) and decision of Hon’ble Karnataka High Court in the case of CCI Limited(supra), we dismiss the appeal filed by the Revenue.
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2016 (3) TMI 1403
Correct head of income - Gain on sale of shares - Business Income or Long term Capital Gain - AO brought the amount of sale consideration of plot to tax in the hands of the assessee societies again under the head “Profit & Gains of Business profession” - CIT(A) upheld the action of the Assessing Officer following the orders of his predecessor, passed in assessee’s case in the first round of litigation - HELD THAT:- Respectfully following the order passed by the co-ordinate bench of Mumbai Tribunal in [2011 (1) TMI 1564 - ITAT MUMBAI] we restore the issue to the file of the Assessing Officer for deciding the same afresh as per the direction given by the tribunal.
In the result, appeal of the assessee for the A.Y. 1995-96 is allowed for statistical purpose.
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2016 (3) TMI 1402
Taxabiity of Profit on the Sale of Investments - assessee is engaged in the business of general insurance - HELD THAT:- As this ground raised by the assessee in the present appeal is covered in favour of the assessee by the Tribunal order in assessee’s own case for A.Ys. 2004-05 & 2006-07 [2015 (2) TMI 1323 - ITAT MUMBAI] the computation of taxable profit of an insurance company is governed by specific provision as given in section 44, read First schedule to the Income-Tax Act. Under the said scheme, only such adjustment can be made to the profits as disclosed in the annual accounts drawn under the Insurance Act, 1938, which are specifically provided under Rule 5 - there is no specific provision for making the adjustment on account of profits on sale of investment after removal of Clause 5(b) w.e.f. 01.04.1989 and till Clause 5(b) was inserted w.e.f. 01.04.2011.
Specific amendment in Rule 5 to First schedule, came w.e.f. 01.04.2011, wherein it has been specifically provided that any gain or loss on realization of investment shall be added or deducted if such gain or loss is not credited or debited to the P& L account. Prior to this there was no such provision. This amendment has been specifically brought w.e.f.01.04.2011 applicable from A.Y. 2011-12 and cannot have retrospective effect. This has been clarified by the notes and clauses to Finance Act amending the said section.Thus, from 01.04.1989 to 01.04.2011, such a provision was not there in the Statute, therefore the same cannot be read into between this period. This issue precisely has been dealt by the Tribunal in the various cases. At the time of passing of the Tribunal order in assessee’s case for A.Y. 2002-03 & 2003-04, such an amendment was not brought on the statute, which clarifies the legislative intent, that prior to 01.04.2011 such an adjustment of profit and sale of investment can be made. - Decided in favour of assessee.
Denial of exemption of incomes claimed u/s 10 - HELD THAT:- We notice that this issue is decided in favour of the assessee by the jurisdictional Hon’ble Bombay High Court in the case of General Insurance Corporation of India Vs. DCIT [2011 (12) TMI 70 - BOMBAY HIGH COURT] Consistent with the view and by respectfully following the orders of the Tribunal in earlier years, we decide this issue in favour of the assessee
Disallowance u/s 14A - HELD THAT:- This ground is covered in favour of the assessee by the Tribunal order in assessee’s own case A.Ys. 2004-05 & 2006-07 [2015 (2) TMI 1323 - ITAT MUMBAI] which was subsequently followed by the Tribunal in A.Ys. 2000-01 to 2003-04 [2012 (10) TMI 882 - ITAT MUMBAI] as held that provision of section 14A is not applicable in the cases of Insurance company which are governed by section 44, because it is non obstante provision wherein the income is to be computed as per P&L account prepared under the Insurance Act 1938. Section 14A contemplates exception for deduction allowable under the act, whereas section 44 creates special application of provision of computation of profit as per the Insurance Act. Thus, no disallowance u/s 14A can be made and accordingly
Disallowance of amortization of premium - assessee has claimed an amount as revenue expenses, which represented premium paid on purchase of investment of securities amortized over the residual period of securities - HELD THAT:- As decided in own case for in earlier years i.e. A.Y. 2004-05 to 2006-07 [2015 (2) TMI 1323 - ITAT MUMBAI] amortization claimed by the assessee as revenue expenditure is allowable.
Addition u/s 69B - Shares excess of book value shown in its account - CIT(A) too confirmed the said addition on the ground that non obstante clause appearing in section 44 does not hit the provision of section of section 69B and same is fully applicable - HELD THAT:- As decided in in assessee’s own case for in earlier year i.e. A.Y. 2006- 07 [2015 (2) TMI 1323 - ITAT MUMBAI]. The assessee has sold the shares and buyers have failed to take the delivery, then in such a case how the provision of 69B gets attracted because here it is not a case that the investment exceeds the amount recorded in the books of account. On these facts alone, the addition cannot be sustained. Accordingly, the same is deleted.
MAT Applicability u/s 115JB - HELD THAT:- we find that the issue of non applicability of MAT u/s 115JB to the General Insurance Company has been upheld. Even otherwise also the provision of MAT will only come into play, only when assessee prepares its P&L account in accordance with part (II) and part (III) of Schedule (VI) of the Companies Act. Since the assessee’s P&L account is prepared in accordance with Insurance Act 1938, as specifically provided in Section 44 read with First schedule, therefore, the provision of section 115JB will not apply in case of assessee.This has been held in the case of General Insurance Corporation [2012 (2) TMI 522 - ITAT MUMBAI] - Decided in favour of assessee.
Appealable order directly before CIT-A - Grant credit for taxes paid under section 90 and under section 91 - CIT(A) while dealing with the said ground has held that in appeal, the assessee is not challenging any of the issue specified in section 246A of the I.T. Act and since the issue is purely of credit for taxes paid and is thus not an appealable order directly therefore learned CIT(A) held that ground of appeal does not survive and consequently rejected the same - HELD THAT:- From the perusal of the provisions of section 246A, it is clear that this ground is squarely covered u/s. 246A of the Income Tax Act, 1961, where it has been categorically mentioned that appeal in respect of “to the amount of tax determined” lies before learned CIT(A), therefore on this issue we deem it fit to restore the matter back to the file of the learned CIT(A) for examining the same afresh and to decide on merit as per law. We direct accordingly. This ground is accordingly allowed for statistical purposes.
Addition being reversal of provision of impairment of investments made in accordance with Rule 5 of the First Schedule r.w.s. 44 - HELD THAT:- Consistent with the view taken by the Tribunal, by respectfully following the Tribunal order in assessee’s own case A.Ys. 2004-05 [2015 (2) TMI 1322 - ITAT MUMBAI] on the issue, we decide the issue in favour of the assessee.
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2016 (3) TMI 1401
Right in the ancestral property - suit property as per the plaint was purchased by the grandfather of the plaintiff Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra and who is defendant no.1 in the present suit - no cause of action disclosed - bar under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 - HELD THAT:- The ratio of the judgment of the Supreme Court in the case of YUDHISHTER VERSUS ASHOK KUMAR [1986 (12) TMI 380 - SUPREME COURT] has been followed recently by the Supreme Court in its judgment in UTTAM VERSUS SAUBHAG SINGH & ORS. [2016 (3) TMI 1369 - SUPREME COURT] by extending the application to even coparcenary property inherited by a male Hindu from his paternal ancestor.
The suit is also barred by Section 4(1) of the Act, inasmuch as, as per the admitted facts stated in the plaint the suit property was purchased by Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1. Once the property is purchased in the name of defendant no.1, defendant no.1 becomes the sole owner of the suit property unless the plaintiff is able to bring out a case within the exceptions to Section 4(1) of the Act, which are contained in Section 4(3) of the Act of existence of HUF or property being purchased in trust. The plaint does not show existence of any HUF being created after 1956 or HUF existing prior to 1956 which continued after 1956 - also, the plaint does not make any averment with respect to the property being purchased in trust by the grandfather Sh. Tara Chand Chopra in the name of his son Sh. Vasudev Chopra/defendant no.1.
The suit is therefore barred by the provision of Section 4(1) of the Act - suit dismissed.
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2016 (3) TMI 1400
Dishonor of Cheque - Friendly Loan - acquittal of the accused - Section 138 of the Negotiable Instrument Act - HELD THAT:- The learned Magistrate has found that there are circumstances available on record which reasonably indicate that a businessman like the appellant would not advance a friendly loan of ₹ 3,40,000/- to a stranger like the respondent and that too without there being any receipt obtained from the respondent acknowledging the receipt of a friendly loan of ₹ 3,40,000/- by him. The learned Magistrate has found that the evidence of the complainant that although the accused i.e., respondent No. 1 had issued a receipt to him, the original receipt was handed over back by him to the respondent, is not inspiring any confidence. The learned Magistrate has observed that such version of the complainant or the appellant is hard to be believed as nobody would return such a conclusive and direct proof on mere acceptance of confirmation letter which is also not drafted happily.
There are no perversity or arbitrariness in the learned Magistrate drawing a conclusion that the basic requirement of the offence punishable under Section 138 of the Negotiable Instrument Act that the cheque must be issued in discharge of a legally enforceable liability has not been proved beyond reasonable doubt. No doubt, there is a presumption that a cheque is issued in discharge of such a legally enforceable liability/debt, the facts and circumstances appearing in the evidence of the prosecution in this case go to show that the defence taken by the respondent that the cheque was for some other transaction is probable and therefore, one must say, the presumption has stood rebutted.
Appeal dismissed.
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2016 (3) TMI 1399
CENVAT Credit - exempt goods or not - Clearance of excisable final Products to the SEZ developer without Payment of Central Excise duty - retrospective application of Rule 6 of CCR - HELD THAT:- The issue arising out of the present dispute regarding retrospective application of Rule 6 ibid, amended on 31.12.2008 has already been settled by the decisions relied on by the ld. Advocate in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT], wherein the Hon’ble Karnataka High Court has held that the amendment took place in Rule 6 (6) (i) in 2008 has to be construed as retrospective in nature and the said statutory provision will be extended to the goods cleared to a developer of a special economic zone for their authorised operations.
Appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1398
Dishonor of Cheque - acquittal of the accused - Sections 82 and 83 of Cr.P.C. - HELD THAT:- The presence of the petitioner is required before the Magistrate, before whom he is not ready to go and surrender. If the inherent powers are exercised to quash the proceedings against the person who do not respect the process of Court, it would amount to abuse of process of Court to protect such persons. Hence, it would be just and proper that the petitioner to surrender before the Magistrate who issued proclamation to secure his presence. He is at liberty to file application for discharge before the Magistrate on the ground that the main accused has already acquitted due to lack of evidence.
Petition dismissed.
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2016 (3) TMI 1397
Disallowance of interest accrued & due but not paid u/s 43B(d) - Assessee that accumulated amount of interest accrued and due but not paid to various unsecured loan and therefore the provisions of section 43(d) was invoked by the Ld. AO - CIT (A) restricted the disallowance to amount charged to the profit and loss account on account of interest accrued and due but not paid - HELD THAT:- In THE BAGHPAT CO-OPERATIVE SUGAR CIRCLE-2, MILLS LTD. [2015 (8) TMI 1267 - ITAT DELHI] it is held that if the interest in question is payable to Government of India and Uttar Pradesh government, section 43B (d) does not apply. No other contrary decision was brought to our notice. In view of this, following the decision of coordinate bench, we reverse the finding of CIT(A) confirming the disallowance u/s 43B(d) - Decided in favour of assessee.
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2016 (3) TMI 1396
TP Adjustment - international transaction arising from interest charged on the loan advanced by the assessee to its AE - assessee has charged interest at WIBOR + 1%, whereas, the TPO had adopted BPLR of SBI for benchmarking the transaction - Whether the rate of interest to be adopted is BPLR of SBI or WIBOR + 1% for benchmarking the transaction? - HELD THAT:- AR pointed that due to frequent changing of the BPLR by all the banks, the prevalent BPLR of all the Indian Banks are not readily available in the Public Domain or any statistical database. Poland being member of European Union, the more appropriate rate for comparison would be the RFC rates for Euros. The average RFC rates for Euros being 2.80% and the highest rate for 3 years and above being 3.30% only, the rate of 5.47% charged by the assessee company to its subsidiary in Poland is justified.
We find that the similar issue had come up before the Coordinate Bench of the Tribunal in the case of Varroc Engineering Pvt. Ltd. Vs. The Asstt. Commissioner of Income Tax [2015 (3) TMI 111 - ITAT PUNE] In the said case the assessee had benchmarked its international transaction relating to interest rate charged at international rate. The benchmarking was adopting at foreign currency City Bank rates. The TPO rejected the benchmarking made by the assessee and adopted the BPLR.
We hold that the DRP has erred in confirming the findings of the TPO in adopting BPLR rates. The TPO is directed to recompute the interest rate by adopting WIBOR + 1% in respect of the international transaction under appeal. Accordingly, ground no. 3 raised in the appeal is allowed.
Claim of deduction u/s.10A - HELD THAT:- We find that identical issue had come up before the Tribunal in appeal of the assessee for the assessment years 2005-06 and 2006-07. The Tribunal decided the issue in favour of the assessee. The relevant extract of the order of the Tribunal [2015 (12) TMI 398 - ITAT PUNE] held that the deduction under section 10A of the Act has to be given at the stage when the profits and gains of the business are computed in the first instance.
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2016 (3) TMI 1395
Estimation of income - Rejection of books of accounts - net profit rate of 2% on the gross receipts - assessee did not produce all the vouchers for the expenses, nor any evidence was led to establish the payments made to the truck operators - HELD THAT:- All the expenses incurred by the Union are small expenses, for which, it is not possible to maintain vouchers. The payments were made through cheques, the details whereof were maintained and presented before the Taxing Authorities. The factum of the assessee having made the payments could not be doubted, since the respective accounts would be credited and debited accordingly. The cheque payments render any other evidence of the payments irrelevant and the Taxing Authorities have erred in rejecting the assessee’s books on this score also.
Finding merit in the additional ground raised by the assessee, the same is accepted. It is held that the AO went wrong in rejecting the assessee’s books of account for non-maintenance of vouchers of expenses and absence of evidence regarding payments made to the truck operators. The ld. CIT(A) erred in confirming the action of the AO. To reiterate, no defects were pointed out by either of the Authorities below in the books of account maintained by the assessee.
On the additional ground, the addition made by applying net profit rate on the gross receipts of the assessee is deleted. Accordingly, none of the original grounds raised survives for adjudication, having been rendered academic in nature. Decided in favour of assessee.
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