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2016 (5) TMI 1617
Violation of principles of natural justice - cryptic order, assigning no reasons - HELD THAT:- On perusal of the impugned order in Annexure-4 dated 5.2.2016, it appears that by a cryptic order without assigning any reasons, the tender has been cancelled and more so, it appears that the said cancellation has not been communicated to the petitioner. It is admitted fact that the petitioner has qualified in both the technical and financial bid pursuant to the invitation bid in Annexure-1.
It appears that since no reasons have been assigned in the order impugned in Annexure-4 and subsequently by filing affidavit, the opposite parties have tried to justify their action by giving explanation, this Court is inclined to interfere with the same. Thus, the order impugned in Annexure-4 dated 5.2.2016 and the consequential invitation of bid in Annexure-5 also cannot sustain and accordingly, the same are hereby quashed.
Petition allowed.
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2016 (5) TMI 1616
Dismissal of assessee's appeal in limine - none appeared on behalf of assessee nor any application has been filed for seeking adjournment - HELD THAT:- Notice of hearing was served upon the assessee twice but none appeared on behalf of assessee nor any application has been filed for seeking adjournment. This shows that the assessee is not interested in pursuing with his appeal.
Therefore, in view of the decision of Estate of Late Tukojirao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] and Multiplan India (Pvt.) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D]we dismiss the appeal of the assessee in limine.
Assessee may, if so advised, file an application before this Tribunal for restoration of his appeal and hearing on merits by showing reasonable cause for not appearing before the Tribunal on the date of hearing. The Bench, if so satisfied, may recall its order and restore the appeal to its original number for hearing on merits.
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2016 (5) TMI 1615
Disallowance u/s 14A - in the quantum appeal, the Tribunal has deleted the said disallowance which was made by the AO over and above what the assessee has offered the disallowance u/s14A - HELD THAT:- In view of the aforesaid facts that in the quantum proceedings the Tribunal vide order [2014 (1) TMI 709 - ITAT MUMBAI] has deleted the disallowance made by the AO u/s 14A over and above what was suo moto disallowed by the assessee in its return of income, the penalty levied on such disallowance have no legs to stand. CIT(A) has deleted the penalty after following Tribunal order in the quantum proceedings. Accordingly, ground raised by the revenue is dismissed.
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2016 (5) TMI 1614
Enhancement of compensation of acquired land - HELD THAT:- In its recent judgment in the case of ASHOK KUMAR & ANR. ETC VERSUS STATE OF HARYANA [2016 (2) TMI 1376 - SUPREME COURT], the Hon'ble Supreme Court, while interpreting the scope of Section 25 of the Act and duty cast on the courts to grant just and reasonable compensation of the acquired land, even more than what was claimed by the landowners, observed The pre-amended provision put a cap on the maximum; the compensation by court should not be beyond the amount claimed. The amendment in 1984, on the contrary, put a cap on the minimum; compensation cannot be less than what was awarded by the Land Acquisition Collector. The cap on maximum having been expressly omitted, and the cap that is put is only on minimum, it is clear that the amount of compensation that a court can award is no longer restricted to the amount claimed by the applicant. It is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.
Although it is a matter of record that revenue estate of villages Dhankot and Budhera were adjoining with each other, yet, even if it is presumed, however, for the sake of argument only, that there is some distance between two pieces of land acquired out of the revenue estate of village Dhankot and the acquired land in the present cases, then the law laid down by the Hon'ble Supreme Court in Ashrafi and others Vs. State of Haryana and others [2013 (4) TMI 1000 - SUPREME COURT], Kashmir Singh Vs. State of Haryana and others, [2013 (12) TMI 1745 - SUPREME COURT] and Thakarsibhai Devjibhai and others v. Executive Engineer and another, [2001 (1) TMI 1024 - SUPREME COURT] clearly supports the claim of the landowners.
The landowners are held entitled to receive the compensation for their acquired land at the uniform rate of ₹ 2,80,00,000/- per acre, from the date of notification under Section 4 of the Act. Besides this, the landowners shall be entitled for all the statutory benefits available to them under the relevant provisions of the Act.
Appeal disposed off.
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2016 (5) TMI 1613
Maintainability of appeal against CIT(A) order - Addition of loan received by the assessee from its 100% subsidiary as deemed dividend - debenture redemption reserve within the meaning of Explanation 1(b) of section 115JB - CIT(A) deleted addition made u/s 2(22)(e) and holding that the debenture redemption reserve is not a ‘reserve’ within the meaning of Explanation 1(b) of section 115JB - Assessee submitted that the tax effect in this case is below 10 Lakhs and as per the CBDT Circular No. 21 of 2015, dated 10-12-2015, the present appeal is not maintainable.
HELD THAT:- DR fairly conceded that the tax effect in department’s appeal is below 10 Lakhs. We find that the issue raised in appeal does not fall under any of the exceptions specified in para 8 of the Circular. Since, it has been specifically clarified in the Circular aforesaid that the instruction will apply retrospectively to all the pending appeals, the present appeal filed by the revenue is not maintainable. We, therefore, dismiss the appeal in limine.
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2016 (5) TMI 1612
Entitlement to claim legal right in respect of the posts remained unfilled as the select list stood exhausted with the joining of the candidates to the extent of posts advertised - HELD THAT:- Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the Appellants to claim equality.
Learned Counsel for the Appellants submitted that the Appellants have been pursuing the matter for about eight years and even today there are vacancies in Punjab Judicial Service and thus prayed that direction be issued to the Respondents to consider the case of the Appellants as against the existing vacancies. This contention does not merit acceptance. Appointment to an additional post or to existing vacancies would deprive candidates who were not eligible for appointment to the post on the date of submission of the applications mentioned in the advertisement but became eligible for appointment thereafter.
The High Court rightly held that the candidates much more than the vacancies advertised have already been permitted to join and thus the Appellants cannot claim any legal right in respect of the posts of reserved category remaining unfilled. The impugned judgment does not suffer from any infirmity warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India.
Appeal dismissed.
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2016 (5) TMI 1611
Seeking refund of seized rubber or its market value - grievance of the petitioner is that the authorities have not responded to his representation - principles of natural justice - HELD THAT:- This writ petition is disposed off with a direction to the Assistant Commissioner of Customs, (Preventive) NER Region, Shillong (Respondent No.4) to decide the representation 21.8.2015 (Annexure-A) of the petitioner by a reasoned order within 45 days from the date of receipt of a copy of this order and communicate the order to him.
Petition disposed off.
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2016 (5) TMI 1610
SEBI states that the representation made by the Appellant would be considered and appropriate orders would be passed within a period of seven weeks from today. Statement made by Counsel for SEBI is accepted.
Appellants in both the Appeals, do not press the Appeals. Both the Appeals are disposed of in the above terms with no order as to costs.
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2016 (5) TMI 1609
Unaccounted transactions regarding sale of land - Determination of correct income of the assessee - co-ownership in land sold - Assessee submitted that the AO had wrongly calculated the addition as the share of assessee was admittedly 1825.49 marlas being 43% and this fact was verifiable from copy of seized documents -
AR submitted that assessee alongwith other joint owners of certain land had sold such land and had claimed to be exempt from capital gains being the asset was agricultural land but the same was rejected by Assessing Officer and in the case of group companies they had agreed before the Settlement Commission for taxability of such income as business income and therefore in the present appeal the assessee is not on the issue of taxability of such profits as business income but he submitted that Assessing Officer had wrongly calculated the addition by including the share of Sham Lal one of the co-owner in the income of assessee which is highly unjustified
HELD THAT:- We are in agreement with the arguments of learned AR for the proposition that correct amount of taxes should be collected and AO should not misuse the lack of knowledge of the assessee.
As undisputed fact that the total area of land was 4245.43 marlas as noted in the seized document placed at (PB Page 843). It is also undisputed fact that share of assessee was 43% therefore, the share of assessee was only 1825.49 marlas. It is also undisputed fact that the rate for the purpose of calculation of income of the assessee has been taken from the seized document @Rs.18750/- per marla. The above fact is further fortified from para 20 of order of settlement commission where the settlement commission has also noted the share of the assessee at 43% out of total land of 4243.55 marlas and had also noted that said land was sold at Rs.18750 per marlas.
Assessee’s share was definitely 43% of the total land and the gross receipts from sale of such land @ Rs.18,750 per marla comes out of at Rs.34,22,7,938/- and therefore, the Assessing Officer should not have taken the value of sale consideration at Rs.4,65,09,900/-.
Contention of learned AR that Assessing Officer has included the share of Mr. Sham Lal also seems to be correct because of the fact that if the share of Mr. Sham Lal is included in the land holding of assessee, it will come out at about the same figure for which Assessing Officer had made the addition. However, on this account also the action of the Assessing Officer is not justified as per Mr. Sham Lal had already offered his share of income from land as business income before Settlement Commission.
CIT(A), has reduced the addition after reducing the cost price of the land as 35,41,391/- where as in our considered opinion the learned CIT(A) should have restricted the same to Rs.30,68,6,547/- (being correct sale value Rs.34227938/- purchase cost Rs.3541391/-). Therefore, we allow ground of assessee’s appeal and direct the Assessing Officer to restrict the addition confirmed by learned CIT(A) at Rs.42,95,9,509/-to Rs.30,68,6,547/- only.
Contention of the assessee that the asset should have been treated as capital asset - We do not find any force in the grounds of appeal as Mr. Sham Lal and his group companies has already admitted before the settlement commission that the same may be treated as business income, therefore, ground Nos. (i) to (iii) are dismissed.
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2016 (5) TMI 1608
Jurisdiction - competent cort to enforce Arbitral Award - Prayers of the appellants for examination of the judgment-debtors, by summoning the judgment-debtors to this Court declined.
Whether this Court is the appropriate Court of competent jurisdiction, to enforce an arbitral award under the 1996 Act?
HELD THAT:- By virtue of the forum selection clauses and a printed clause in the agreement indicating that the agreement was executed within the jurisdiction of the Court agreed upon, applications are filed in the Court of the choice of the financer as specified in the agreement for injunction and for appointment of Receivers in respect of assets financed to borrowers in different parts of India.
Numerous such applications are filed in this Court. More often than not, the agreements are signed by the borrowers hundreds of miles outside the jurisdiction of this Court, through agents and even branch offices, even though the head-office and/or the registered office of the finance companies might be situate within the jurisdiction of this Court - All that might have been done within the jurisdiction of this Court, could very well be the affixation of the signature of the official of the financier and may be affixation of the seal of the financier. Applications are moved in this Court ex parte for injunction and orders of injunction are obtained. Middle income group borrowers defaulting in payment of instalments seldom appear to contest the proceedings, may be due to financial constraints or inconvenience otherwise of defending proceedings in a distant Court.
Moreover, it is often seen that finance companies have their chosen arbitrators, who arbitrate disputes between the financiers and borrowers in bulk. By recourse to fine print terms exorbitant amounts are charged by way of cheque bouncing charges, which are many times the amount charged by banks for the bouncing of cheques, as noted by the leaned single Bench.
When a contract appears to be unconscionable, the Court may intervene. It is for the Courts to ensure that no injustice is done to the financially weak. Similarly it is for the Court to exercise restraint before passing unduly harsh orders - A forum selection clause is not in itself unconscionable. The borrowers enter into agreements containing forum selection clauses with their eyes open, and also default in making payment as per agreement.
The features noted by the learned single Bench in some of the awards of which execution has been sought, ex facie render these awards liable to be set aside on the ground of the same being against public interest. The limitation for filing an application for setting aside of the award would only start running from the date of receipt by the borrower and/or the guarantor of a copy of the award duly signed by the arbitrator. If an award is found ex facie unsustainable in law, the Court might decline to execute the award - However, where an application had earlier been filed in this Court, the Court cannot refuse to execute the award on the ground that the judgment-debtor and/or the assets were located outside the jurisdiction of this Court.
Appeal allowed.
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2016 (5) TMI 1607
Seeking consideration of the miscellaneous application before BIFR - HELD THAT:- Writ petition was filed inasmuch as BIFR was not functioning and impugned order dated January 07, 2016 passed by AAIFR was that since no appeal was pending before it, the question of entertaining any miscellaneous application would not arise - When the writ petition was filed, on account of superannuation of the members constituted BIFR, the Board was not functioning. As of today, the Board is functioning because two members have been nominated.
In that view of the matter relief as prayed in the writ petition cannot be granted but a direction is issued that within three months from today BIFR should decide MA No.358/BC/2014.
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2016 (5) TMI 1606
Rejection of plaint for want of a cause of action - averments in the plaint indicate that this is a composite suit where the plaintiff has sought reliefs of recovery of the money claimed against the defendants on contract as also by way of damages being a liability under the torts - Order 7 Rule 11 read with Order 1 Rule 10(2) of the Code of Civil Procedure - It is the case of the Plaintiff that there were defaults committed on the plaintiff's exchange by Defendant No. 1 and the same have occurred with the active participation, knowledge and connivance between the defendants.
HELD THAT:- A holistic reading of the plaint would demonstrate that the plaintiff has impleaded defendant Nos. 14 and 15 who were directors and shareholders of defendant No. 4 so as to seek a relief against these defendants. The plaintiffs have made averments in the plaint that at the relevant time defendant Nos. 14 and 15 were in-charge and responsible for the affairs of defendant No. 4 and as such they were also liable to jointly and/or severally pay amounts due from defendant Nos. 1 to 4 to the plaintiff which was in fact the moneys of the counter-parties dealing on the exchange as set out in para 7 (zz) of the plaint. It is pertinent that the plaintiff in para 7 (zz) of the plaint has made categorical averments that defendant Nos. 1 to 4 in collusion with erstwhile managing director of the plaintiff and some of the managerial staff who directly reported to him, have orchestrated and played a fraud on the plaintiff and counter parties to the outstanding trades, by seeking to represent and assure that the commodities held thereunder have been duly deposited in warehouses designated by the plaintiff which representations were false to their own knowledge and which were deliberately and with an intent to defraud the plaintiff and counter parties and have thereby caused the counter-parties to part their moneys and enter into outstanding trades on the basis of such fraudulent representations and assurances and further have compounded the fraud so played by refusing an access to the designated warehouses for parties of accepting commodities that were purportedly deposited and/or taken possession thereof for the purpose of sale and realization of the amounts due from defendant Nos. 1 to 4 under outstanding trades.
The plaintiff have stated that defendant Nos. 1 to 4 in connivance with defendant Nos. 5 to 16 would deal with the assets in their control and possession and therefore, exhaust monies and/or assets in such a manner to defeat the claim of plaintiff's exchange. It is stated that defendant Nos. 5 to 16 as Directors/shareholders are in effective control of defendant Nos. 1 to 4 and are therefore, in-charge of day-to-day affairs of defendant Nos. 1 to 4 and that enquiry of the Economic Offences wing clearly indicates that persons in charge of defendant Nos. 1 to 4 have utilized their monies for ulterior motives and/or are seeking to defeat and defraud the claim of the plaintiffs. This was borne out by the fact that the Economic Offences wing had arrested Mr. Surendra Gupta Managing Director of defendant No. 1.
From the reading of the plaint, thus it is borne out that although a contract was between the plaintiff and defendant No. 1, defendant Nos. 2 to 4 had also a role to play in the transactions being related companies of defendant No. 1. The defendant Nos. 2 to 4 are largely controlled by the same management. The defendant No. 1 admittedly had executed various trades in commodities for itself and on behalf of its clients including defendant Nos. 2 to 4 on the plaintiff's exchange - The specific allegation is that defendant Nos. 1 to 16 had already disposed/siphoned/shifted off the commodities located in the warehouses whereby committed a grave breach of trust and thereby willfully defaulted towards its obligations on the plaintiff 's exchange. The plaintiff have further stated that this large scale defaults and fraud was also a subject matter of investigation of Economic Offences wing (EOW). Articles appeared in newspapers on this investigation of the EOW which further high-lighted that defendant Nos. 1 to 4 and their management namely defendant Nos. 5 to 16 were responsible for siphoning the amount outstanding to the plaintiff. The case of the plaintiff that these acts of defendants committing fraud on the plaintiff's exchange could not have occurred without the knowledge and active participation of the defendants.
The present case is not a case which merely rests on the contractual terms but according to the plaintiffs, it is a collusion fraud and the defendants becoming beneficiaries of such acts. It is for these reasons, the normal role of a Director in the normal course, as canvassed on behalf of the defendant Nos. 14 and 15/Appellant would not become applicable in the facts of the present case. In considering such pleas, the facts and circumstances as borne out in the pleadings in each case are required to be considered so as to determine as to whether any cause of action is made out or otherwise before exercising power as conferred under Order 7 Rule 11(a) of C.P.C.
The Appellants reliance on the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & anr) [2005 (9) TMI 304 - SUPREME COURT] is in support of their submission that merely because the Appellants were Directors of Defendant No. 4 Company, there cannot be any monetary liability on the Directors and the liability would be of the company. The Supreme court observed that there is no universal rule that a Director of a company would be in-charge of its day-to-day affairs. However, the Supreme Court at the same time observed that as to what was the role of the Director of a Company is a question of fact depending on the peculiar facts in each case. This decision arose out of the proceedings initiated under sections 141, 138 of the Negotiable Instruments Act, 1881 and in that context, the Supreme Court had made these observations that to fasten a criminal liability a specific case should be spelt out in the complaint against the person who has sought to be made liable. Parameters of the pleadings in a criminal complaint case cannot be made applicable to the facts of the present case where the issue is under Order 7 Rule 11(a) and Order 1 Rule 10(2) of the Code of Civil Procedure.
The plaint in the present case contains a statement of all the material circumstances constituting fraud. It is trite law that an application under Order 7 Rule 11 read with Order 1 Rule 10 (2) can be moved at any stage of the suit - the appeal lacks merit and is rejected.
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2016 (5) TMI 1605
Principles of natural justice - Denial of duty free benefits for the subject import consignment under Customs Notification No.98/2009-Cus, dt.11.09.2009, without detailed reasons - SCN also not issued - HELD THAT:- Under the circumstances, the Tribunal cannot take up or decide the issue on merit. It would be in the fitness of things that the matter goes back to the Adjudicating authority who should put the appellants on notice and decide the issue by a speaking order after giving them a reasonable opportunity to be heard.
At this juncture, the learned Counsel for the Appellant submits that this is a live consignment and therefore, a time limit may be specified - there are force in the contention of the learned Counsel and request the Adjudicating authority to dispose of the matter in accordance with the above, within a period of two months from the date of receipt of this order.
Appeal allowed by way of remand.
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2016 (5) TMI 1604
Loss on account of embezzlement by the employee - HELD THAT:- We find the assessee has lodged a complaint before the police authorities to the extent of Rs. 25 lakhs only. After the settlement was arrived on 08-09-2009 Shri E. Srinivas, Ex-employee of the assessee paid Rs. 25 lakhs to the assessee company. Since the assessee could not substantiate the claim of embezzlement of Rs. 40,28,270/- and has filed police complaint only to the extent of Rs. 25 lakhs, therefore, we do not find any infirmity in the order of the CIT(A) disallowing the claim of Rs. 15,28,270/- which remained unsubstantiated.
Assessee before us also could not point out any mistake in the order of the CIT(A) nor could he give the proof of embezzlement of Rs. 15,28,270/-. We therefore do not find any infirmity in the order of the CIT(A) and uphold the same. The first issue raised by the assessee in the grounds is accordingly dismissed.
Short Income in comparison to the figures in Form 26AS - difference between the ITS data and details in Form 26AS - HELD THAT:- As in the instant case although the deductor has stated to have paid more amount to the assessee and since the assessee was unable to show that such income has been offered to tax either in this year or in the preceding or succeeding year, therefore, the office memorandum of the CBDT is not applicable to the facts of the present case. In view of the above discussion, we uphold the order of the CIT(A) and the ground raised by the assessee on this issue is dismissed.
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2016 (5) TMI 1603
Validity of reopening - Addition u/s 14A r.w. Rule 8D - HELD THAT:- We agree with assessee’s argument that this tribunal in its own appeal against regular assessment involving section 14A disallowance has already decided that the same does not apply in a cooperative society case enjoying section 80P deduction.
We find that the AO has reopened the said assessment thereby apply gross interest computation formula instead of netting for computing rule 8D disallowance. The law is very well settled by law that Rule 8D is not applicable in the impugned assessment year. A co-ordinate bench of the tribunal in DCIT vs. Trade Apartments [2012 (3) TMI 421 - ITAT KOLKATA] has already rejected Revenue’s contentions against netting formula - Decided in favour of assessee.
Contribution made to ARDA(Anand Research Development Association) for dairy development - claimed as revenue expenditure - HELD THAT:- The assessee is fair enough in pointing out that the above stated tribunal’s decision has rejected its identical plea in earlier assessment years. We appreciate this fair stand to uphold the CIT(A)’s findings under challenge. This second substantive ground fails.
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2016 (5) TMI 1602
Addition of capital gains against the security deposit received by one member of AOP - amount received by the assessee pursuant to the said Joint Venture agreement - HELD THAT:- The share of the assessee in the said gross sale proceeds was to the extent of 3.5%. Under clause 16 of the Joint Venture agreement, it was agreed between the parties hereto that the capital required for the construction of the project other than that of land should be brought in by the party of Third Part. As per clause 17, the party of the Third Part had agreed to give interest free advance of Rs.1 crore to the parties of the First and Second Part each and the said amount had to be adjusted against final payment of revenue share.
Besides the other terms agreed upon between the parties, as per clause 33, it was reiterated that the agreement of Joint Venture related to efficient pooling of the resources and neither parties was transferring to other any kind of right, interest in the said properties and as such the document was exempted from registration under the provisions of Indian Registration Act.
The issue arising before us is with regard to the amount received by the assessee pursuant to the said Joint Venture agreement. The claim of the assessee was that it had received the said security deposit from the developer of the plot in order to safeguard themselves against any charges levied for violation of any provisions. The case of the Department on the other hand, is that as per the AO, the amount has been received on account of transfer of property and as per the CIT(A), the said amount is assessable in the hands of assessee u/s 45(3) of the Act by way of transfer of the said asset to the AOP.
The perusal of Joint Venture Agreement entered into between the assessee and others reflected that the First Part had contributed certain lands and also TDR rights and the assessee had contributed the land to the AOP for development only.
It was not the case of transfer of land to the AOP, but was the case of joint pooling of resources by three different parties, wherein the party of the First Part was to contribute TDR rights, the party of Second Part i.e. assessee was to make available the land, on which the development had to be undertaken and the party of Third Part had to overseas the construction and also contribute funds for the construction of the said project.
In such scenario, where the asset held by the assessee has not been transferred to the AOP, there is no question of charging any income from capital gains in the hands of assessee in this regard under section 45(3) of the Act. The security deposit received by the assessee is not chargeable to tax.
The said security deposit has been refunded by the assessee by cheque to M/s. Shriram Constructions i.e. party of the Third Part in financial year 2014-15. The assessee has also placed the copy of bank account on record, wherein there is debit of Rs.8,50,000/- and Rs.16,50,000/- totaling Rs.25 lakhs.
While completing the assessment in the hands of Parmanand A. Kriplani, who had received 16.67% as against 8.33% received by the assessee, was completed by the AO vide order passed u/s 143(3) - As where the transaction as such has been accepted in the hands of one of co-owners, no adverse view could be taken in the hands of other persons.
While registering Joint Venture Agreement, the market price of the property was fixed and was taken at Rs.2 crores - We find no merit in the said claim of Revenue. The assessee along with others had pooled in their resources i.e. by way of availability of land and TDR rights and finance, respectively and where the property as such has not been transferred to the AOP, there is no question of assessing the value of security deposit as gain arising on the transfer of land in the hands of assessee. Accordingly, we delete the addition made by the AO on account of income from capital gains. The ground of appeal No.1 raised by the assessee is thus, allowed.
Disallowance of transport charges paid by the assessee - The said disallowance was made since the expenses were claimed on self made vouchers and was also paid in cash. AO also noted certain discrepancies in the bills produced by the assessee. In the totality of the above said facts and circumstances, we restrict the disallowance to Rs.25,000/-. The ground of appeal raised by the assessee is thus, partly allowed.
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2016 (5) TMI 1601
Rejection of claim of the petitioner for counting services rendered by him with the Auto Tractors Limited, for the purposes of calculating the qualifying service prescribed for pensionary purposes under the relevant rules.
HELD THAT:- The government order dated 10.7.1998 relates to Central Government employees or employees of autonomous bodies of the Central Government seeking absorption in autonomous bodies under the State Government and the State Government employees seeking absorption in the Central Government or in the autonomous bodies of the Central Government, for the purposes of counting their services rendered under their erstwhile employer for the pensionary benefits.
Admittedly the petitioner does not fall in the aforesaid category, as, there is nothing on record to indicate that the A.T.L. was an autonomous body of the Central Government. The petitioner admittedly was not a State Government employee prior to his absorption. Furthermore, the benefit mentioned in the said government order was available only if both the establishments were pensionable. Therefore, even assuming the applicability of the said government orders there is nothing on record to show that the services of the petitioner in the A.T.L. were pensionable. Moreover, the government order was subsequently clarified vide government order dated 28.12.2001 which has been impugned herein.
It has been mentioned in the government order dated 28.12.2001 that the earlier government order dated 10.7.1998 was applicable only where pension scheme was applicable in the autonomous bodies referred therein, however, as, at some places in the said government order the word 'Corporation/Undertaking' has been used in place of autonomous bodies and considering the categorical policy of the Government of India that services rendered in a Corporation/Undertaking are not countable for the purposes of pensionary benefits, therefore, the government order dated 28.12.2001 on the same lines clarified its earlier order dated 10.7.1998 that the same shall be applicable only to autonomous bodies and not Corporations/Undertakings - Though the aforesaid government order, considering the subject matter referred hereinabove, do not apply to the case of the petitioner, but assuming their applicability there is nothing on record to show that the expenditures of the A.T.L. were entirely or more than 50% of its financial requirements were financed by the State Government.
There is another reason for non-applicability of the said government orders to the case of the petitioner that is absorption herein was made under the Rules of 1991 framed under the proviso to Article 309 wherein there was no such provision for giving the benefit of services rendered in the A.T.L. to the petitioner as has been held by the division Bench in Ram Shanker Gupta's case [2015 (11) TMI 1888 - ALLAHABAD HIGH COURT].
The claim of the petitioner is without any factual or legal basis. The writ petition is accordingly dismissed.
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2016 (5) TMI 1600
Dismissal of appeal for non-prosecution - HELD THAT:- As on the date fixed on 12/05/2016, none appeared on behalf of the assessee. It therefore appears that assessee is no more interested in prosecuting the appeal therefore appeal of the assessee is liable to be dismissed. The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum, “VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT’.
Considering the facts and keeping in view the provisions of rule 19(2) of the Income-tax Appellate Tribunal Rules as were considered in the case of CIT vs. Multiplan India Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] we treat this appeal as unadmitted.
Their Lordships of Hon’ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another [1979 (5) TMI 4 - SUPREME COURT] held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same.
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2016 (5) TMI 1599
Addition u/s 68 - unexplained share application money and undisclosed cash deposit - HELD THAT:- Assessee has received share application money through account payee cheques and through normal banking channels. It is not the case of the revenue that the share application was not made from the bank account of the applicant companies and the share applicants were also produced before the AO.
As it is not the case of the revenue that the shares were allotted to the subscribers are matter of records of ROC and confirmed by annual return and return of allotment as filed with ROC but the AO has not made any verification with respect to bank vis-a-vis respective companies nor has been called for any records of the respective companies. AO has accepted the genuineness of these companies and receipt of share application money as well as share premium. This is a genuine share application money and CIT(A) has rightly deleted the addition basing his decision on remand report of the AO.
Undisclosed cash deposit - We find that the assessee has co-related the withdrawals made with that of cash deposit and also cash sales made during the period 02.04.2005 to 28.05.2005. Assessee has filed complete summary of cash withdrawals and cash deposit and cash sales which is co-related to the cash deposit with the bank account and/or treated as undisclosed. CIT(A) has deleted the addition based on the remand report of the AO, who admitted that these cash deposits are explained by the assessee in remand proceedings. Decided against revenue.
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2016 (5) TMI 1598
Additional income offered in survey conducted - whether this cash is relatable to the business of the assessee, in accordance with ‘Kim Pharma P. Limited’ (2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT] and if so, whether it is not a business income? - HELD THAT:- As rightly contended AO has accepted this income of the assessee as business income. The profit & loss account of the assessee for the period from 04.02.2011 to 31.03.2011. shown Palace income the details of which are, given. Therefore, the grievance of the assessee in this regard is correct and the same is accepted.
In keeping with ‘Kim Pharma P. Limited’ (supra), as relied on in ‘Gaurish Steels P. Limited’ (2015 (11) TMI 631 - ITAT CHANDIGARH] this income has been considered as the assessee’s business income and not as deemed income u/s 69A of the Act. As such, the business losses incurred by the assessee during the year can be set off against the income surrendered. As per the requirement of section 71 of the Act, the AO is directed to act accordingly. Thus, Ground Nos. 1 to 3 are accepted.
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