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Showing 41 to 60 of 1610 Records
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2016 (5) TMI 1577
Penalty u/s 271(1)(c) - Defective notice - specific default/charge of the assessee - assessee submitted that the AO imposed penalty in a mechanical manner without due application of mind - HELD THAT:- The penalty is not imposable u/s 271(1)(c) of the Act for year under consideration and is liable to be quashed on the ground that the AO has failed to apply his mind before initiating the penalty proceedings and, therefore, the proceedings initiated are bad in law. As such, CIT(A) was not justified in sustaining the penalty imposed by the AO. Accordingly, the order of the ld. CIT(A) is set aside and penalty levied by the AO is cancelled. Appeal of assessee allowed.
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2016 (5) TMI 1576
Benefit of doctrine of mutuality - receipts from guest fees, income from hire of rooms, hire charges in respect of club lawn is to be considered exempt by following principal of mutuality - HELD THAT:- We find that the ld.CIT(A), following the Tribunal’s order in assessee’s own case in earlier years[2013 (1) TMI 1031 - ITAT AHMEDABAD] and [1987 (10) TMI 21 - GUJARAT HIGH COURT] held that the assessee was entitled for the benefit on the basis of doctrine of mutuality.
Revenue has not brought any contrary binding decision in its support nor has placed any material on record to demonstrate that the decisions of the Tribunal in assessee’s own case for AY 200-07 has been set aside by Hon’ble Jurisdictional High Court [1987 (10) TMI 21 - GUJARAT HIGH COURT]. - no reason to interfere with the order of the ld.CIT(A) and thus the ground of Revenue is dismissed.
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2016 (5) TMI 1575
Unexplained cash credits - absence of any nexus between the corresponding sales and the amounts in question - HELD THAT:- On verification of the ledger accounts of M/s. Sahara Minerals and of M/s. V.K. Minerals CIT(Appeals) found that sales made to the said two parties were duly accounted for and offered by the assessee as its income and since the amounts in question treated to be unexplained cash credits by the Assessing Officer were claimed to be received against the said sales, the ld. CIT(Appeals) held that such addition under section 68 to the extent of corresponding sales already declared by the assessee as income would result in double addition.
As already noted by us, this position was accepted even by the Assessing Officer also in the remand report submitted to the ld. CIT(Appeals). The ld. CIT(Appeals) thus allowed a relief to the assessee to the extent of ₹ 2,67,09,704/- being the amount already offered as income by the assessee in the form of sales and restricted the addition of ₹ 4,68,02,738/- made by the Assessing Officer under section 68 to the extent of ₹ 2,93,00,034/-. Having regard to all the facts and circumstances of the case, we find no infirmity in the impugned order of the ld. CIT(Appeals) giving this relief to the assessee and upholding his impugned order on this issue, we dismiss the appeal filed by the Revenue.
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2016 (5) TMI 1574
Rectification of mistake u/s 154 - Disallowing additional depreciation u/s. 32(iia) - assets used for less than 180 days - AO issued a rectification notice u/ s. 154 disallowing additional depreciation claimed - HELD THAT:- Section 32(1)(iia) of the Act provides that additional depreciation @ 20% shall be allowed to the assessee on the actual cost of new plant and machinery, which has been acquired after 31.03.2005. The second proviso to section 32 restricts depreciation allowance at 50% if the asset is used for less than 180 days in a previous year. There is no mention in section 32(1)(iia) that the 20% additional depreciation is allowable in first year only. Provisions of section 32(1)(iia) and second proviso to section 32 should be read and construed reasonably, liberally and purposefully. If the acquired asset is used for less than 180 days in year one than the allowable additional depreciation is restricted to 50% in the first year and balance 50% additional depreciation is allowable in subsequent year. There is no restriction vis-avis the number of assessment years over which the additional depreciation is to be allowed.
The issue under consideration is also squarely covered by the order of coordinate bench in the case of SIL Investment Ltd [2012 (6) TMI 83 - ITAT DELHI] wherein it was held that additional depreciation, which was restricted in the year of purchase to the extent of 50% on the plea of machinery having been put to use for a period of less than 180 days, the balance of additional depreciation is required to be allowed in the succeeding year. In view of the above, we do not find any merit for disallowing assessee’s claim for depreciation.
Nature of receipt - TUF subsidy received from Central Government under Technology Upgradation Fund Scheme (TUF) - Revenue or capital receipt - HELD THAT:- The assessee himself had offered the taxation for the said subsidy and the AO had assessed the same accordingly. It is not the case that the AO at the time of assessing income of the assessee had proceeded in violation of any statutory provision. If subsequently in a case law, the coordinate bench of the Tribunal has given a finding that such receipt is a capital receipt that cannot be form the basis to reopen/readjudicate the issue which has already attained finality. The assessee has neither agitated this issue on merits during the assessment proceedings nor by way of appeal before the CIT(A). Even the same cannot be considered as a mistake apparent on record u/s.154 proceedings, as the AO had assessed the income as offered by the assessee and while doing so he had not directly violated any statutory provision of the Act. Hence, it cannot be said to be any mistake apparent on record with regard to nature of TUF subsidy.
Merely because subsequently a coordinate bench of the Tribunal has taken some view with regard to nature of TUF subsidy in case of some other assessee that itself cannot be said to be sufficient ground to readjudicate or to reconsider the already concluded assessment. If such a course would be allowed to be adopted, then, it may give rise to a number of claims for readjudication of several already concluded cases and such course will be against the principle of finality of proceedings at one stage and would violate the object and purpose of the Indian Limitation Act, 1963. In view of this, we do not find that treatment of TUF subsidy offered by assessee and accepted by the AO as revenue receipt, under the facts and circumstances of this case, was a mistake apparent on record.
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2016 (5) TMI 1573
Suit for recovery of money - time limitation - identical orders of dismissal in limine, without even issuing the summons to the respondents/defendants - HELD THAT:- The limitation for a suit for price of goods sold and delivered by the appellant/plaintiff to the respondent/defendant in each of the suit from which these appeals arise, provided in Article 14 of the Schedule is three years. It was not the case of the appellant/plaintiff herein that the price was agreed to be paid after the expiry of fixed period of credit. The suits were admittedly instituted more than three years after the date of sale and delivery of goods. However the appellant/plaintiff sought to extend the period of limitation by relying upon the payments made by cheques which were dishonoured. The said cheques were of a date before the expiry of period of three years from the date of sale and delivery of goods but were not presented for payment immediately and when presented later, though within the period of their validity, were dishonoured. It is not the case that the cheques were ante-dated. The cheques though dishonoured are deemed to be payment within the meaning of Section 19.
Unlike the present case where the appellant/plaintiff, to bring the suit within limitation has to necessarily rely on Section 18 and/or 19 for extension of limitation, Steel Authority of India Ltd. [2007 (8) TMI 811 - DELHI HIGH COURT] was not concerned therewith; that was a case of a suit for recovery of amount which was subject matter of cheque simpliciter. Similarly, JHANG BIRADARI HOUSING RESIDENTS SOCIETY VERSUS BHARAT BHUSHAN SACHDEVA AND ORS. [2015 (8) TMI 1542 - DELHI HIGH COURT] was not a suit for recovery of money but a suit for declaration of title to immovable property and the period of limitation provided wherefore commences from the date when the right to sue first accrues,
The limitation for a suit for recovery of price of goods as the subject suits, does not commence from the date when the right to sue accrues but commences from the date of sale and delivery of goods and the extension of limitation by issuance of cheques which were dishonoured claimed by the appellant/plaintiff commences from the date when the acknowledgment was so signed and which can only be the date of the cheque and not the date of dishonour of cheque. To hold otherwise, would be doing violation to the language of Section 18.
Appeal dismissed.
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2016 (5) TMI 1572
Flood due to release of water in the dam - non-maintenance of particular level of water in the dam by the Respondents - Act of god or not - Whether the act of releasing the water from the dam would amount to negligence on the part of the Respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'? - entitlement to some compensation even in the absence of proof of actual/exact damage caused - HELD THAT:- There are two exceptions to the Rule of strict liability, which were recognized in Rylands v. Fletcher itself, viz.: (a) where it can be shown that the escape was owing to the Plaintiff's default, or (b) the escape was the consequence of vis major or the act of God. An act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated.
What needs to be examined is as to whether the damage to the property of the Appellant herein was the result of an inevitable accident or unavoidable accident which could not possibly be prevented by the exercise of ordinary care, caution and skill, i.e. it was an accident physically unavoidable? - HELD THAT:- Undoubtedly, it has come on record that the overflow of dam was occasioned by torrential and heavy rains. However, as pointed out above, the Appellants specifically pleaded that the Respondent authorities did not keep the level of water in the dam sufficiently low to take care of the ensuing monsoon rains. They have, thus, set up the case that there was a negligence on the part of the Respondents in not taking care of the forthcoming monsoon season and keeping the water level in the dam at sufficiently low level to absorb the rainfall which was going to rise the water level in the dam.
It is a matter of common knowledge that with advanced technology available with the Meteorological Department in the form of satellite signals etc, there is a possibility of precise prediction of the extant of rainfall in the monsoon season. In view of the principle laid down in Rylands v. Fletcher, onus was on the Respondents to discharge such a burden, and it has miserably failed to discharge the same. On that basis, we are constrained to hold that there is a negligence on the part of the Respondents which caused damage to the fields of the Appellants - In the instant case, it is found that the loss is not only on account of rain, though a part thereof can be attributed to the nature, but also due to the negligence on the part of the Respondent authorities in not taking due precautions in time which could have avoided some loss/damage, if not entirely. If damage has resulted from two or three causes, namely, from an act of God as well as a negligent act of a party, the award of damages can be apportioned to compensate only the injury that can be attributed to the negligent act of the Respondents.
The Appellants claimed damages to the tune of ₹ 21,50,000, for which no specific proof/evidence is given. At the same time, we find that one Mohemmed Ikbal Mohemmedalam Galivala, who is an agriculturist, had appeared as the Plaintiffs' witness and deposed that he was having the agriculture experience for the last 20 years, particularly experience of cultivation of boar as well as its profit and income - it is not in dispute that loss has occurred and, therefore, a reasonable compensation can still be awarded. Exercising the power under Article 142 of the Constitution, it is opined that ends of justice would be met in awarding damages to the tune of ₹ 5,00,000.
Appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1571
Penalty u/s 271(1) - Search and seizure operation - Jewellery found in search - unexplained investment in jewellery - HELD THAT:- Addition sustained was an estimated one. It is well settled that if the addition is sustained on estimate basis it cannot be said that the assessee concealed the income or furnished inaccurate particulars of income in respect of the estimated addition. Therefore, the penalty was not leviable u/s 271(1)(c) - in the present case, the AO himself accepted the gold jewellery in which the diamond were studded to the extent of 700 gms out of the 793.600 gms jewellery found during the course of search and the ld. CIT(A) accepted the remaining jewellery of 93.600 gms against which the department had not preferred any appeal.
When the gold jewellery in which the diamonds were studded has been accepted by the department as the jewellery received at the time of marriage or other occasion, then, it cannot be said that the diamond studded in the said jewellery were out of the undisclosed income of the assessee. It is well settled that the assessment proceedings and the penalty are two different and distinct proceedings and that the addition made in the assessment may be relevant but not a conclusive proof of concealment of income or furnishing of inaccurate particulars of income. Therefore the impugned order passed by the ld. CIT(A) is set aside and the penalty sustained u/s 271(1)(c) of the Act is deleted.- Decided in favour of assessee.
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2016 (5) TMI 1570
Validity of assessment u/s 144 - assessee taken a ground that AO erred in passing the ex parte order without giving any sufficient opportunity to the assessee and wherein no notice u/s 144 or any show cause notice was served to the assessee before making such a huge addition - HELD THAT:- We find that ld. CIT(A) has confirmed all the additions except allowing deduction u/s 80C, relying on the remand report of AO. However, ld. counsel submits that facts needs to be remarshalled as assessee did not get sufficient opportunity to plead his case. Considering the entirety of facts, after going through the order of ld. CIT(A), in order to impart substantial justice to assessee, we restore the matter to the file of AO to pass the assessment order de novo, after providing reasonable opportunity of being heard. We order accordingly.
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2016 (5) TMI 1569
Revision u/s 263 by CIT - AO while completing the assessment proceeding did not make enquiries which he ought to have made - HELD THAT:- It is clear from the submissions and material available on record with regard to the sundry income credited in the profit and loss account the AO made the required inquiries. Though there is no specific reference by the AO on this aspect, yet the fact remains that the AO got the details of the sundry income and in the absence of any adverse observations in the order of AO it is to be presumed that he was satisfied that the income in question had nexus with the business of the assessee and therefore had to be recorded as income from business.
There cannot also be any dispute with regard to the fact that the income from sale of scrap, foreign exchange fluctuation gain are inextricably linked to the profession income and have to be regarded as income from profession.
With regard to the payment of service charges to Price Waterhouse Coopers again the required details were filed by the assessee and AO had raised specific queries on these charges. As pointed out by the learned counsel for the assessee similar charges had been allowed as deduction in the past. There was no reason for the AO to doubt the nexus of these expenses with the business of the assessee.
With regard to the payment of policy premium to cover the risk of damages owing to professional negligence it cannot be disputed that the same was in relation to the business of the assessee. It is no doubt true that the AO while completing the assessment did not make any specific inquiries with regard to this item of expenditure, the fact, however, remains that these expenses have direct nexus with the business of the assessee and had to be recorded as expenses wholly and exclusively incurred for the purpose of the business of the assessee.
Besides the above as rightly pointed out by the learned counsel for the assessee the CIT has not set out as to why this item of expenditure need to be investigated and as to what type of inquiry ought to have conducted by the AO. A mere observation that no proper details have been obtained, cannot be sufficient to come to a conclusion that the AO did not make proper and adequate inquiries which he ought to have made in the given facts and circumstances of this case.
In the conclusion we are of the view that none of the reasons set out by the CIT for invoking the jurisdiction u/s 263 of the Act are sustainable. The impugned order of the CIT-A has to be quashed for the reason that order of the AO sought to be revised in the impugned order was neither erroneous nor prejudicial to the interest of the revenue for the reason of any law of inquiry that the AO ought to have made in the given facts and circumstances of the case. We accordingly quash the order u/s 263 of the Act and allow the appeal of the assessee.
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2016 (5) TMI 1568
Works contract - Framing of charges against the accused persons - allegation is that the false stage certificate was issued as 25% of the work had not been completed - HELD THAT:- It is not in dispute that two works were awarded to A-3: one was known as "JRY-consignment semi permanent building in Vandiperiyar" and other was known as "JRY-construction of permanent building in Vandiperiyar". In the present case, we are concerned with release of payments to A-3 in respect of second work contract. As is clear from the nomenclature of these two contracts, they were under JRY. The Commissioner, Village Development, Thiruvananthapuram had issued Circular No. 14514/J.R.Y. 1/91/C.R.D. dated 23.04.1991 which prescribes the procedure for implementation of JRY and contains certain suggestions.
The prosecution has sought to cover the case of the Appellant under Sub-clause (ii) and not under Sub-clause (i) and Sub-clause (iii). Insofar as Sub-clause (ii) is concerned, it stipulates that a public servant is said to commit the offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage - It was not even the case set up by the prosecution that Appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the Appellant under the provisions of Section 13(1) (d)(ii). The attempt of the prosecution was to bring the case within the fold of Clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the Appellant in issuing the said letter.
In C. CHENGA REDDY AND ORS. VERSUS STATE OF ANDHRA PRADESH [1996 (7) TMI 596 - SUPREME COURT], this Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/ awarding the work in violation of circulars, that by itself was not sufficient to prove that a criminal case was made out.
The prosecution has miserably failed to prove the charge beyond reasonable doubt and the courts below have not looked into the matter in a proper perspective - the Appellant is already on bail. His bail bonds shall stand discharged - appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1567
Benefit of exemption u/s 11 & 12 - whether activities of the trust were not within the purview of section 2(15) - As per revenue assessee society’s main source of receipts is from Hostel/Canteen activities and booking of Auditorium and Conference Hall which are of commercial nature - CIT(A) where relying upon the order of the ITAT for 2009-10 A.Y. and taking note of the fact that there was a similar denial in 2010-11 A.Y. also on identical fact which issue also stood concluded in favour of the assessee - HELD THAT:- We have seen the material available on record and in the light of the submissions advanced by the parties and on consideration of the above finding, we find that the conclusion drawn by the CIT(A) relying upon the order of the ITAT cannot be faulted with. It is seen that in 2009-10 A.Y. more or less on identical facts, the AO had proceeded on an Inspector’s report and therein also relying upon the information in Form 26AS as in the year under consideration he relying on the transactions made with non-member concluded that the trust was running as a commercial activity. This similarity of fact in the earlier year would be evident from order of the ITAT as held it would not be possible to ascertain the amount of canteen collection from those persons who were not stayed in the hostel. In any case it is bound to be very negligible and within permissible limits of section 2(15) of the Income Tax Act.
It can be seen from the documents submitted that the trust serves buffet meals during the program / workshop conducted by Members Organizations and/or during own program and workshop but not for any other purposes. This can be reviewed form the related documents enclosed herewith for your kind perusal i.e. Bills of buffets served during workshop and seminars.
We also like to submit that for the booking of the facilities (Buffet, Auditorium, Conference Hall etc.) of the Trust, officials of the trust designated for the said purposes (at the rank of Manager) are only authorized. Hence, as regard the remarks made by our Canteen staff they had merely given the information in regard to tariff rate both for vegetarian and non vegetarian buffets arrangement. There is nothing wrong in what has been stated by them and no where they had committed that it will be served also for the purposes other than the objectives of the activities for which it was intended. They had merely answered a query. Therefore, it would be inappropriate to conclude that what they had stated involve commercial activities.
Thus identical claim of the Revenue has been considered by the ITAT. No change in fact or circumstance has either been referred to by the Ld. Sr. DR nor has been brought out in the assessment order. In the absence of any infirmity having been pointed out, we find no good reason to deviate from the view taken. Holding the conclusion of the CIT(A) in relying thereon justified on facts and law the departmental ground is dismissed.
Depreciation claim - As relying on Indraprastha Cancer Society [2014 (11) TMI 733 - DELHI HIGH COURT] in computing the income of a charitable institution/trust, depreciation of assets owned by the trust/institution is a necessary deduction on commercial principles. The Gujarat High Court, after referring to the judgements of the Karnataka, Maharashtra and Madhya Pradesh High Courts cited above, also came to the same conclusion and held that the amount of depreciation debited to the accounts of the charitable institution has to be deducted to arrive at the income available for application to charitable and religious purposes. Revenue appeal dismissed.
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2016 (5) TMI 1566
TDS u/s 194A - Disallowance u/s 40(a)(ia) - Interest paid to various government and Institutional Depositors - Forms 15G/15H are not submitted to the Jurisdictional Commissioner and no evidences were produced to prove whether such forms have been obtained - HELD THAT:- Considering the basic exemption limits, category of the customers are farmers and assessee had collected above 75% of the forms and also percentage of forms not submitted compared to total interest disbursal is 2.26% and percentage of interest paid on above ₹ 10,000 is 24.63%, we are of the view that the assessee has complied with the provisions of section 197A. Assessee also submitted that it has placed a system of collecting the forms from rural branches to HO and submitting the same at the time of assessment.
Assessee also submitted that in the subsequent assessments, it was properly submitted the forms to Assessing Officer. Considering the above submissions, in our view, assessee is not at default and also as held in the case of Kumar Enterprises [2014 (5) TMI 426 - ITAT HYDERABAD] and CIT Vs. Valibhai Khanbhai Mankad [2012 (12) TMI 413 - GUJARAT HIGH COURT] that once the assessee obtained Form 15I from the sub-contractors whose contents are not disputed or whose genuineness is not doubted, then, the assessee is not liable to deduct tax from the payment made to sub-contractor. Once, assessee is not liable to deduct tax disallowance u/s 40(a)(ia) cannot be made. The assessee’s breach of the requirement to furnish details to the income tax authority in the prescribed form within the prescribed time may attract other consequences but cannot result in a section 40(a)(ia) disallowances. Hence, addition made on this count is deleted. - Decided in favour of assessee.
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2016 (5) TMI 1565
Constitutional Validity of various provisions of the Maharashtra Animal Preservation Act, 1976 (Animal Preservation Act) as amended by the Maharashtra Animal Preservation(Amendment) Act, 1995 - existing prohibition on the slaughter of cows, a complete prohibition was imposed on slaughter of bulls and bullocks in the State - ban was imposed on possessing the flesh of cow, bull or bullock slaughtered within and outside the State.
HELD THAT:- The conclusions are as under:
"(a) We uphold the constitutional validity of the amendment to Section 5 of the Animal Preservation Act made by the impugned Amendment Act;
(b) We uphold the constitutional validity of Sections 5A and 5B;
(c) We uphold the constitutional validity of Section 5C. However, the possession contemplated by Section 5C shall be conscious possession. It will be a possession with the knowledge that the flesh is of cow, bull or bullock which is slaughtered in contravention of Section 5 of the Animal Preservation Act;
(d) We hold that right of privacy is a part of the personal liberty guaranteed by Article 21 of the Constitution of India. We hold that Section 5D infringes the right of privacy which is part of Article 21 of the Constitution of India and therefore, it is liable to be struck down;
(e) Accordingly, reference to Section 5D in clause (b) of Sub-section (3) of Section 8 is liable to be struck down. Similarly, a reference to Section 5D in Section 9A is liable to struck down;
(f) The provisions of Section 9B are held to be unconstitutional being violative of Article 21 of the Constitution of India and, therefore, Section 9B is liable to be struck down;
(g) We hold that all other Sections which were subject matter of challenge are legal and valid."
Petition is disposed off with the following order:
(a) We hereby hold and declare that Section 5, Section 5A, Section 5B, Section 5C, Sub-sections (3) and (4) of Section 8, Section 9 and Section 9A of the Maharashtra Animal Preservation Act, 1976 as amended/inserted by the Maharashtra Act No. V of 2015 are constitutional, valid and legal;
(b) However, we hold that the possession in terms of the Section 5C of the Maharashtra Animal Preservation Act, 1976 shall be "conscious possession";
(c) Section 5D of the Maharashtra Animal Preservation Act, 1976 is struck down on the ground that the same infringes the fundamental right guaranteed under Article 21 of the Constitution of India;
(d) Accordingly, wherever there is a reference to Section 5D in other Sections of the Maharashtra Animal Preservation Act, 1976, the same stands deleted;
(e) Section 9Bof the Maharashtra Animal Preservation Act, 1976 is struck down as it infringes the fundamental right guaranteed by Article 21 of the Constitution of India;
(f) The prayers which are not specifically granted shall be deemed to be rejected;
(g) The Rule is partly made absolute in above terms with no orders as to costs;
(h) All the Pending Chamber Summonses, Notices of Motion and the Civil Applications are disposed of.
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2016 (5) TMI 1564
Interest income of DRDO and ISRO from two departments of Government of India added by AO in the income of the appellant company - CIT-A deleted the addition - addition made by the AO be deleted and justice be rendered to the appellant - HELD THAT:- The above ground is vague and does not have any specific prayer for adjudication. Hence, these appeals filed by the assessee are dismissed with liberty to file fresh appeal or file a Miscellaneous Petition with revised grounds of appeal. It is ordered accordingly.
The three appeals filed by the assessee are dismissed.
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2016 (5) TMI 1563
Murder or suicide - dowry demands - offence under Sections 498-A and 304-B of Indian Penal Code or not - whether the Court of Sessions was empowered to take cognizance of offence under Sections 304-B and 498-A of Indian Penal Code, when similar application to this effect was rejected by the JMFC while committing the case to Sessions Court, taking cognizance of offence only Under Section 306 Indian Penal Code and specifically refusing to take cognizance of offence under Sections 304-B and 498-A Indian Penal Code?
HELD THAT:- A bare reading of Section 190 of the Code which uses the expression "any offence" amply shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offence triable by Magistrate Court and not in respect of offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session. If it is so, the question is as to what meaning is to be assigned to the words "as a Court of original jurisdiction" occurring in Section 193 of the Code when Court of Session takes cognizance of any offence. To put it otherwise, when the Magistrate has taken cognizance and thereafter only committed the case to the Court of Session, whether the Court of Session is not empowered to take cognizance of an offence again Under Section 193 of the Code or it still has power to take cognizance acting as Court of original jurisdiction.
The Magistrate had no business to discharge the Appellant. In fact, Section 207-A in the old Code of Criminal Procedure, empowered the Magistrate to exercise such a power. However, in Code of Criminal Procedure, 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction.
Here is a case where the Police report which was submitted to the Magistrate, the IO had not included the Appellants as accused persons. The complainant had filed application before the learned Magistrate with prayer to take cognizance against the Appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation in this case is, thus, not where the investigation report/chargesheet filed Under Section 173(8) of the Code implicated the Appellants and Appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case against the Appellants had not been made out.
Whether this Court exercise its powers under Article 136 of the Constitution to interdict such an order? - HELD THAT:- The order of the Magistrate refusing to take cognizance against the Appellants is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions was, thus, not powerless to pass an order in his revisionary jurisdiction. Things would have been different had he passed the impugned order taking cognizance of the offence against the Appellants, without affording any opportunity to them, since with the order that was passed by the learned Magistrate a valuable right had accrued in favour of these Appellants. However, in the instant case, it is found that a proper opportunity was given to the Appellants herein who had filed reply to the application of the complainant and the Sessions Court had also heard their arguments.
Appeal dismissed.
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2016 (5) TMI 1562
Penalty u/s 271(1)(b) - assessee has not made proper compliance with the statutory notices - non maintaining books of accounts - assessee submitted that the Assessing Officer wanted the assessee to produce the books of accounts for computing the total income but for maintenance of books of accounts by an individual or any person not having the income from profession as specified in sub-section (1) of section 44AA or carrying on business or profession having income - HELD THAT:- No penalty can be imposed on the person or the assessee, as the case may be, for failure referred to in the above section if he proves that there was reasonable cause for such failure. Now in the instant case, the assessee has complied with all the notices and he has raised a legal objection that the assessee is not required to maintain books of accounts and if at all he is required to maintain the books of accounts that too for six years. Moreover, the assessee has filed detailed affidavit and also demanded the reasons recorded for reopening the assessment order. Therefore, this contention of the assessee can be said to be a reasonable cause for noncompliance with the notices issued by the Assessing Officer.
As assessee has filed the reply and raised the legal objection. The legal objection is tenable or not is not a question before me but in my opinion, the assessee has complied with the notices issued under subsection (1) of section 142 of the Act and moreover the assessee has also raised the legal objection that the assessee is not required to maintain the books of accounts as the assessee is not carrying on any profession or business.
As assessee has a reasonable cause for not complying with the notices. Moreover, the Assessing Officer has also stated that proper compliance is not made but the assessee has complied with the notices. Therefore, as per section 273 of the Act, the assessee has a reasonable cause for non-compliance with the notices to the satisfaction of the Assessing Officer - Decided in favour of assessee.
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2016 (5) TMI 1561
Seeking quashing/waiving off the arbitrary and discriminatory conditions encapsulated in clauses B.2.6(v) and B.2.7(v) and B.2.6(v) of the tender Nos.1, 2 & 3 respectively - holding 100% share of its subsidiary Company as per Russian Law - 100% subsidiary is permissible as per Indian Law or not - whether the impugned condition is an essential condition of eligibility or is merely ancillary or subsidiary to the main object to be achieved by the condition? - HELD THAT:- In the case of a newly formed company, there is no requirement that the promoter company should have a 100% shareholding in the bidder. All that is required is that the promoter company should give a corporate guarantee/undertaking that it would financially support the newly formed company for executing the project/job in case the same is awarded to them. The pleas in the counter affidavit seeking to justify the requirement of a 100% shareholding by a parent company, on the ground that several anomalies or difficulties can be caused by even a single shareholder who can affect/hamper the tender process of the Respondent No.1 to a great extent, are without any basis. No such fear or apprehension is expressed in respect of a newly formed company. One cannot comprehend as to how a subsidiary would be different from a newly formed company when in both cases a corporate guarantee/undertaking is submitted from the parent/ultimate parent/holding company or the promoter company/joint venture partner that it would financially support the subsidiary company or the newly formed company (as the case may be) for executing the project/job in case the same is awarded to them.
One fails to understand as to how holding 100% share in the subsidiary company would make the corporate guarantee/undertaking any better than in a case where the parent/ultimate parent/holding company does not hold 100% shares of the subsidiary company. In case of default of the bidder, the corporate guarantee/undertaking of the parent/ultimate parent/holding company would be enforced, in which case, it would be immaterial whether it holds 100% share in the subsidiary company or not.
Respondent No. 1 has itself not considered the said condition as an essential condition of eligibility and has admittedly not applied the principal of holding 100% shareholding of the bidder subsidiary company in the case of the consortium Russian Company M/s Bumi Armada Offshore Contractor Limited (BAOCL), Marshall Island and M/s Afcons Infrastructure Limited, Mumbai on the ground that as per legal advice received, under Russian Law a 100% subsidiary company cannot hold 100% shares of its subsidiary company. When the Respondent No. 1 has itself not treated the impugned condition as an essential condition of eligibility in the case of the Russian Company, then how can it be permitted to contend that in the case of the Petitioner, it is an essential condition of eligibility and not ancillary or subsidiary to the main condition.
In the present case, clearly the decision of the Respondent No. 1 to selectively apply the impugned condition in the case of the Petitioner and not the Russian company, smacks of arbitrariness. Further, as discussed hereinabove, the applicability of the impugned condition in the case of a subsidiary company bidder and not in the case of a newly formed company bidder or any other bidder company is clearly arbitrary and irrational.
The impugned condition is not an essential condition of eligibility but merely ancillary and subsidiary with the main object to be achieved by the said condition and thus the Respondent No. 1 cannot insist upon the strict literal compliance of the said condition - Petition allowed.
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2016 (5) TMI 1560
Exemption u/s 11 and 12 - Whether Respondent National Accreditation Board For Testing and Calibration Laboratories is entitled to exemption? - HELD THAT:- The positive findings of the ITAT on facts is that the Assessee is not engaged in trade, commerce and business and its dominant and prime objective is charitable in nature in accordance with Section 2(15) of the I.T. Act, 1961. The Court also notes that the Respondent is part of the central government. The Court is unable to be persuaded to hold that the findings of the ITAT are perverse. No substantial question of law arises.
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2016 (5) TMI 1559
Disallowance of prior period expense - AO considering that these expenses related to prior period and the same are not deductible expenditure while computing the profits of the business of current year - CIT (A), who allowed the claim of the assessee - HELD THAT:- We find that the issue of prior period expenses has earlier decided by the ld. CIT (A) in assessee’s own case for the A.Ys. 2007-08 to A.Y. 2009-10 [2015 (7) TMI 1386 - ITAT JAIPUR] whereby the disallowance was deleted by the ld. CIT(A) and no appeal against the same was preferred by the revenue. Considering that the issue involved in the years under consideration is same and also in view of the judicial precedents, we find no infirmity in the order of ld. CIT (A) and the same is confirmed. The ground of the revenue for all the three assessment years is dismissed.
Allowable business expenses - Addition of contribution made by the assessee to rehabilitation fund by not treating the same as business related expenditure - assessee has made contribution towards rehabilitation fund to milk unions - CIT (A) allowed the appeal of the assessee by directing the AO to delete the disallowance - HELD THAT:- We find that for the years under consideration, RCDF Rehabilitation and Development Fund was created as a separate trust on 26.03.2008 and was duly registered under section 12AA w.e.f. 02.05.2008 and the actual contribution made to the fund is directly connected with the business of the assessee which has resulted into benefit. Similar contribution made in A.Y. 2012-13 has been allowed by the AO. Recently, the coordinate Bench of the Tribunal in the case of Jaipur Zila Dugdh Utpadak Sahakari Sangh Ltd [2015 (7) TMI 1386 - ITAT JAIPUR] has remanded the matter to the departmental authorities to decide the matter afresh -we find no infirmity in the order of ld. CIT (A), the same is confirmed. The ground of the revenue for both the years is dismissed.
Addition made for depositing the employee’s contribution to PF and ESI beyond the prescribed time limit - whether employee’s contribution to PF and ESI are governed by provisions of sec. 43B and not by sec. 36(1)(va) read with section 2(24)(x) of the IT Act? - HELD THAT:- There is no dispute as to the fact that assessee has deposited the PF before filing of the return. The various High Courts including the Rajasthan High Court has held that if the employees contribution to PF is deposited before the due date of filing of the return, the same is allowable. See CIT vs. State Bank of Bikaner & Jaipur [2014 (5) TMI 222 - RAJASTHAN HIGH COURT] , Jaipur Vidyut Vitran Nigam Ltd. [2014 (1) TMI 1085 - RAJASTHAN HIGH COURT] and Udaipur Dugdh Utpadak Sahakari Sangh [2014 (8) TMI 677 - RAJASTHAN HIGH COURT] - Decided in favour of assessee.
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2016 (5) TMI 1558
Seeking adjournment - plaintiff seeks adjournment as he will bring some relevant law and document with respect to jurisdiction issue - HELD THAT:- The matter is adjourned on 02.06.2016.
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