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Showing 41 to 60 of 1590 Records
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2016 (8) TMI 1555 - ITAT KOLKATA
Revision u/s 263 by CIT - Depreciation on hoardings - temporary v/s permanent structure - depreciation at the rate 100% by treating these hoardings to be temporary structures - HELD THAT:- AO made enquiries on this issue and after being satisfied with the claim of the assessee allowed the cal of depreciation on hoardings at 100%. Order of the AO was in tune with the order of the tribunal in the past which has been accepted by the revenue. In fact even for the subsequent A.Y. 2009-10 the issue was before the tribunal and it had decided in favour of the assessee. In such circumstances we are of the view that the decision in the case of Russel Properties Pvt. Ltd. [1976 (5) TMI 111 - CALCUTTA HIGH COURT] will be applicable and the CIT could not have invoked his jurisdiction u/s. 263.
With regard to the policy guidelines on display of advertisement pointed out by the ld. DR as rightly contended by the ld. Counsel for the assessee this was only a draft policy 2009. In any event the CIT in the impugned order has not, on the basis of any material available before him, come to a conclusion that the hoardings on which the assessee claimed depreciation at 100% were structurally sound so as to be regarded any building.
The decision in the case of Asian Advertising [2016 (5) TMI 158 - ITAT MUMBAI] is a case where the question was whether hoardings constitute building or plant. In our view this cannot be said to be a precedent in so far as the issue involved in the present case is concerned. We are also of the view that the CIT in exercise of his powers u/s. 263 of the Act has to come to a definite conclusion as to how the order of the AO was erroneous. He cannot set aside the order of AO and direct an enquiry on the question whether hoarding structure would be in the nature of purely temporary erection - CIT could invoke the jurisdiction u/s. 263 of the Act only on a finding that hoardings were not purely temporary erection and such finding has to be sustainable in law. It is only then the CIT can make out a case that order of AO was erroneous. In the present case the CIT has not given such a finding. Even on this basis, we are of the view that order u/s. 263 of the Act cannot be sustained. Appeal of assessee allowed.
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2016 (8) TMI 1554 - DELHI HIGH COURT
Cancellation of anticipatory bail - bailable offences or not - applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her to disclose such facts to the Court or to any other authority - HELD THAT:- It is apparent that the Court considered the fact that the two accused were ladies and ordinarily they were entitled to discretionary relief in their favour, however considering the facts of the case this Court was of the opinion that it was not a fit case for anticipatory bail. Pooja and Jyoti surrendered on 4th May, 2016 whereafter the first applications for regular bail was filed on 17th May, 2016. Obviously, since by that time investigation was going on and considering the nature of allegations, the learned Additional Sessions Judge dismissed the bail applications. When the second bail applications were filed which came up on 9th June, 2016 both Pooja and Jyoti had spent more than one month in custody and no more custodial interrogation was warranted as the time for police custody remand was over.
Learned Additional Sessions Judge vide impugned order also noted that both Pooja and Jyoti were married women having minor children to support and to be looked after and were no more required for custodial interrogation, thus imposing appropriate conditions to allay the apprehensions raised on behalf of the complainant bail was granted. Learned Additional Sessions Judge also noted that trial may take considerable time and no useful purpose would be served by keeping them behind the bars.
The conditions are stringent. For the offences invoked in the FIR, Pooja and Jyoti could not be kept in custody till the conclusion of the trial - there are no reason to interfere with the well reasoned order passed by the learned Additional Sessions Judge - petition dismissed.
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2016 (8) TMI 1553 - MADRAS HIGH COURT
Dishonor of Cheque - insufficiency of funds - misuse of blank cheque - HELD THAT:- The arguments of the learned counsel for the revision petitioner, that the petitioner issued blank cheque to one Perumal was misused by the complainant and foisted criminal case is liable to be rejected. The complainant has sufficient funds to give money under the disputed cheque and this Court is of the view that the cheque was issued for consideration by the present revision petitioner to the complainant. On entire perusal of the records, this Court finds no illegality or infirmity in the order passed by the Court below and the same does not warrant any interference by this Court.
The criminal revision stands dismissed.
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2016 (8) TMI 1552 - ITAT AMRITSAR
Revision u/s 263 - unexplained cash - only contention of the Pri. CIT is that the AO should have made further enquiries, which has not been done, according to him - HELD THAT:- CIT observed that Sh. Om Parkash prop, of M/s. Khubsoorat Ornaments, i.e. the father of the assessee was neither produced by the assessee nor summoned by the AO; that the agreement regarding purchase of property was not produced; that there was no power of attorney given by Sh. Om Parkash to Sh. Jiwan Kumar for purchase of property on his behalf; that no agreement to sell was produced and no part payment was made; and the AO did not examine the availability of cash in hand with M/s. Khubsoorat Ornaments.
As seen that the books of account were produced before the AO ward 1(4) Mansa during the course of proceedings u/s.132B for release of cash and also before the AO during the course of assessment proceedings. The copies of relevant pages of cash book are part of the assessment record in which cash amounting to ₹ 1480000/- has been debited in cash in transit on 05.01.2012 and the cash was seized on 06.01.2012 - Further during the course of assessment proceeding Sh. Sham Lal S/o. Sh. Mohan Lal was produced and his statement was recorded on 25.11.2013 in which he has confirmed that he had entered in to a deal of sale of property with Sh. Om Parkash and Sh. Om Parkash alongwith his son Sh. Jiwan Kumar visited him with a sum for finalizing the deal of property but the same could not be finalized due to non clearance of loan. But the Pr. CIT after raising objections to the explanation of the assessee held that the assessment order is erroneous and prejudicial to the interest of the revenue. The objections reproduced in the order u/s. 263 were not confronted to the assessee and only because of this fact the reply could not be given.
It is apparent that the only contention of the Pr. CIT is that the AO should have made further enquiries which has not been done according to him. Thus this is not a case of lack of enquiry and the Pr. CIT erred in assuming jurisdiction u/s. 263 merely because he has a different opinion then the AO in the matter.
It is seen that the present case is not a case of lack of enquiry - enquiry was carried out by the AO. We find that in fact, the ld. Pri. CIT has substituted its opinion for the opinion of the AO by repraising evidence on record, as has rightly been contended on behalf of the assessee.
This is certainly a case of difference of opinion between AO and CIT. The only contention of the CIT seems to be that the AO should have made further enquiries/investigation, which he has not done - for assuming jurisdiction u/s. 263, one has to keep in mind the distinction between lack of inquiry and inadequate enquiry. If there was an enquiry, even inadequate, that would not by itself give occasion to the CIT to pass order u/s. 263, merely because he has a different opinion in the matter. It is only in case of 'lack of enquiry' that such a cause of action could be open. AO accepted and even in the office note meant for internal purposes, he mentions that the assessee has substantiated the jewellery seized. In view of these evidences, this is not a case of lack of inquiry either. - Decided in favour of assessee.
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2016 (8) TMI 1551 - ITAT HYDERABAD
Rectification u/s 254 - ITAT held that the assessee being an AOP is not required to deduct tax at source for making payment to its constituent companies - HELD THAT:- Tribunal has given a finding that the assessee, being an AOP/JV, is not required to deduct tax at source from the payments to the constituents towards their share of work carried out by them. Tribunal thought it fit to direct the A.O. to verify whether Chinese concern has offered its income to tax in India and has also directed the A.O. to bring the same to tax in India if it is found that the non-resident has not offered this amount as part of their taxable income in India.
We find that the above observation or direction is only means that the A.O. may take suitable action for bringing the amount to tax in accordance with the provisions of the Act. Whether it is only an observation or a direction, in our opinion, to take a suitable action, A.O. has to follow the relevant provision of law. It is a settled position that before bringing to tax any income of a non-resident, the A.O. has to examine as to whether such income is taxable in India.
The conditions precedent for bringing to tax such amount have to be satisfied before the A.O. can take recourse to bringing the same to tax in India in the hands of the assessee. Therefore, in our opinion, there is no mistake committed by the Tribunal in giving such observation/direction but in our opinion, it would be in the fitness of the case and justice if the following the words are added at the end of para-12 :
“Only if the said income is chargeable to tax in India”.
M.As. of the assessee are partly allowed.
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2016 (8) TMI 1550 - ITAT MUMBAI
Reopening of assessment u/s 147 - validity of audit objections in re-opening of assessments - disallowance of Provision on investment, under section 14A and disallowance u/s. 35D - reliance on Audit scrutiny of computation of income - HELD THAT:- As the part of the note of an audit party, which mentions the law that escaped the notice of the AO constitutes "information" and the part which emboides the opinion of the audit party in regard to the application or interpretation of the law cannot be taken into account by the AO. A completed scrutiny assessment should not be disturbed in a light manner. If an audit objection points out some mistake in the original order provisions of section 154 have to be invoked and not of section 147. Both the sections find place in the Act for specific purposes. Similarly, if the order passed by an AO is found to be erroneous and prejudicial to the interest of Revenue, a notice u/s.148 should not be issued. Section 147 is not panacea for all the ills. We would like to discuss the limitations of an audit objection in subsequent parargraphs. But, at present it is sufficient to say that re-opening should be done only in certain circumstances, as envisaged by the section.
The entire approach of the AO and the FAA, in the background of the present case, is misconceived. The re-assessment order is based on allowability of provision of bad and doubtful debts. Perusal of the assessment order reveals that such details were called for by the AO. It is further found that the details of the provisions for bad and doubtful debts furnished by the assessee were scrutinized during the original assessment proceedings. In the notes accompanying the return of income the assessee had specifically mentioned the fact and basis of treating the amount in question in a particular manner - there does not appear to the tangible material/reason for the AO to reopen the assessment proceedings in the facts of the present case. He himself admits that ‘scrutiny of the records revealed’ that there was escapement of income. So, the reasons, recorded by him, have to be analysed considering the post scrutiny events.
AO was not convinced about the reasons given by the audit party for disallowing the claim. Not only he stated that claim was sustainable as per the provisions of the Act, but, also indirectly questioned the validity of the objection. But, it is a fact that he had issued a notice u/s.148 of the Act.A comparison of the audit objection raised by the audit party and the notice issued by the AO as per the provisions of section 148 clearly prove that it was solely based on the audit objecttions. Thus, the AO has taken two diagonally opposite stands in the original assessment/ in the reply sent to the audit party and while issuing the notice u/s.148 of the Act. There is not an iota of doubt that it is a clear case of change of opinion.
Audit authorities, an outside agency, definitely has an important role to point out irregularities of assessment orders. But, a Laxamn-Rekha has to be there for audit party. It is not the job of an audit party to interpret the law with regard to facts of a case. Act does not give mandate to the audit personnel to hold that the provisions should be interpreted in a particular manner or to assess the income of an assessee in a particular manner. It is the prerogative of an AO. In the case under consideration the it was not the case of the audit that the AO, while completing the scrutiny assessment, had ignored the judgment of the Hon’ble Apex Court or the Hon’ble jurisdictional High Court resulting in under assessment of the taxable income. No arithmetical mistake or calculation error was also pointed out by the audit party. It had interpreted the law with regard to provisions of section 35D and 36(viiia)of the Act in a particular manner and held taxable income had escaped assessment. In our opinion, such an observation is beyond the power of any audit party and same cannot be termed information for the purposes of section 147 of the Act. Such an observation is not a reliable material-leave apart the tangible material that can be legally relied upon for disturbing a scrutiny assessment. - Decided in favour of assessee.
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2016 (8) TMI 1549 - BOMBAY HIGH COURT
Dishonor of Cheque - insufficiency of funds - whether cheque was issued as a guarantee to make payment or not - section 138 of the Negotiable Instruments Act - HELD THAT:- The transaction between the plaintiff and the defendants was an illegal transaction. If the plaintiff has not disclosed these amounts in his Income Tax Returns, if the cheques given by defendant No. 2 had been honored, the Income Tax Authorities would have asked the plaintiff to explain the source of that money and if necessary would have taxed the plaintiff.
The defendant No. 2 having not denied the fact that the defendant No. 2 had issued cheques for ₹ 1 crore towards repayment of the amount of ₹ 1 crore that the plaintiff had given, the defendant No. 2 not having denied the promissory notes or the memorandum of settlement and the fact that the defendant Nos. 2 and 3 have admitted their liability when their anticipatory bail application was being heard by this Court, the amount of ₹ 1 crore with interest as mentioned in the memorandum of settlement, is payable to the plaintiff. The defences raised by the defendants are nothing but after thoughts. Once having admitted before this Court, they cannot take a contrary view - Admission is the best form of evidence and an admission does not require any proof. The admission made by the defendant Nos. 2 and 3 as recorded in the orders passed by this Court that they owed money to the plaintiff and they are trying to settle the claim with the plaintiff, is an admission of fact which requires no proof. The defendant Nos. 2 and 3 cannot take the defences which they have raised in their affidavit in reply.
The defendant Nos. 2 and 3 are granted a chance to defend the suit but subject to a condition that defendant Nos. 2 and 3 jointly or severally deposit a sum of ₹ 1 crore with the Prothonotary and Senior Master, High Court, Bombay, within six weeks from today and the Prothonotary and Senior Master will invest the same in fixed deposit with a nationalised bank initially for a period of one year and renew it year to year until the hearing and final disposal of this suit - If this amount is deposited, leave to defend to defendant Nos. 2 and 3 is granted. If this amount is deposited, then the defendant Nos. 2 and 3 to file their written statement within two weeks of depositing the said amount. Within one week thereafter, parties will file and exchange affidavit of documents and within one week thereafter complete discovery and inspection and file and exchange and their statement of admission and denial with reasons for denial. The suit be listed for issues 12 weeks thereafter.
The summons for judgment stand disposed.
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2016 (8) TMI 1548 - ITAT HYDERABAD
TDS u.s 194 - TDS on payments made to an exempt entity like M/s. APIIC, in whose respect eligibility for exemption u/s. 11 - whether eligibility for exemption u/s. 11 is to be decided by the AD from year to year? - HELD THAT:- There is no provision in the IT Act to grant blanket permit for non-deduction of tax except by following procedure of applying to the appropriate authority. To get the exemption certificate, the concern seeking exemption from the deductee, it has to apply to the DIT (Exemption) with the request in proper form, only upon approval from DIT (Exemption) in writing, the exemption is allowed not otherwise. In our considered view, the grounds raised by the revenue are correct. In the present case, the CIT(A) has made the passing comment that APIIC is a exempt entity, but, the CIT(A) has allowed the ground of assessee treating the transaction as capital in nature. CIT(A) has not adjudicated this ground mainly on exemption of entity. Hence, the ground raised by the revenue is dismissed.
Whether M/s. APIIC is a corporation established by the State Government of Andhra Pradesh and not by the Central Government so as to enjoy the exemption available u/s. 196(iii)? - There is no dispute that APIIC established under State Act. In the present case, CIT(A) has allowed the exemption by treating the APIIC as a concern u/s 194A(iii)(b) of the Act. On careful observation, the concern which is exempt u/s 194A(iii)(b) should be a financial corporation established by or under central, state or provincial Act. On the record submitted before us does not clarify that APIIC is a financial corporation. Since we are not sure about the type of financial corporation, we remit this issue back to the file of the AO to determine the status. In case it is found that it is a financial corporation, the exemption may be granted.
Whether 'Provision for Expenses" is made on adhoc basis, no TDS is deductible on such provision, which is in contravention to the provisions of section 194(2) ? - CIT(A) has allowed as no TDS is deductible on such provision, which is in contravention to the provisions of section 194(2) of the Ac. We are surprised to observe that there is no such section 194(2) in the Act. The section referred by the revenue is relating TDS on dividend. Since, there is no relevance to the present case, we are not considering this ground for adjudication.
Appeal of the revenue is partly allowed for statistical purposes
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2016 (8) TMI 1547 - ITAT DELHI
Reopening of assessment u/s 147 - application v/s non application of mind by AO - Reopening on basis of information allegedly received by him from the Directorate of Income Tax (Investigation) - HELD THAT:- AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi
As issue involved in the present appeal and is squarely covered by the aforesaid decisions of the Hon’ble High Court of Delhi in the case of G&G Pharma [2015 (10) TMI 754 - DELHI HIGH COURT] & Signatures Hotels (P) Ltd. [2011 (7) TMI 361 - DELHI HIGH COURT] Hence, we decide the legal issue in dispute in favor of the Assessee and against the Revenue and accordingly quash the reassessment proceedings and allow the ground no. 1 & 2 raised by the Assessee.
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2016 (8) TMI 1546 - DELHI HIGH COURT
Summon of the suit - Order XXXVII CPC - HELD THAT:- Summon of the suit under Order XXXVII CPC be issued upon the defendant on filing of PF, RC, Speed post and through approved courier including dasti.
Steps be taken within two weeks time - Renotify this matter on 27.10.2016.
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2016 (8) TMI 1545 - MADRAS HIGH COURT
Exemption claimed u/s 54F - assessee claims relief of exemption of tax in respect of a residential house - possession of two residential houses on the date of transfer of property thus denied the exemption - one house is in the name of the assessee's wife - owner as defined under Section 27(i) of the Act, for the purpose of deemed to be the owner of the property - HELD THAT:- In this case, as categorically held by the Commissioner of Income Tax (Appeal) and the Tribunal that Section 27(1) of the Act is a deeming provision applicable only for Sections 22 to 26, in computing the annual value of the property and as such deeming provision cannot be extended to deny the exemption under Section 54F of the Act.
We are of the considered view that Section 54F of the Act, for granting exemption applies for the purpose of capital gain of transfer of certain capital assets not to be charged in the case of investment in residential house. To this context, Section 54F would apply as an independent provision, to the instant case. Therefore, the Commissioner of Income Tax (Appeal) and the Income Tax Appellate Tribunal have rightly come to the conclusion that Section 27(i) of the Act is not applicable to the facts of the present case - we are not inclined to entertain the instant appeal and the substantial questions of law raised in this Tax Appeal, is answered against the Revenue.
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2016 (8) TMI 1544 - ORISSA HIGH COURT
Scope of SCN - Direction by State Government, for payment of a certain amount for alleged breach of conditions of the mining lease - allegation of certain illegal mining having been carried on - communication notice construed as not to be SCN, as there was no opportunity of being heard - HELD THAT:- Natural justice is an important concept in an administrative law. It is also known as substantial justice, divine justice, fundamental justice, universal justice, rational justice and fair play in action. The rules of natural justice have been summarised in one word i.e. fairness. Natural justice is a great humanising principle intended to invest law with fairness to secure justice and to prevent miscarriage of justice.
In Automotive Tyre Manufacturers Assn. V. Designated Authority, [2011 (1) TMI 7 - SUPREME COURT], the Apex Court held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more- but nothing less.
It is well settled that where exercise of power results in civil consequences, unless the statute specifically rules out, the principle of natural justice would apply.
Since the order dated 25.11.2010 was challenged on merits and records of the case were placed before the Revisional Authority, there was nothing wrong on the part of the Revisional Authority to decide the same on merits, and thereafter quash the proceeding after affording opportunity of hearing to the parties - Petition dismissed.
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2016 (8) TMI 1543 - ITAT BANGALORE
TDS u/s 194C - payment made by the assessee during the year under consideration to a particular owner of vehicle contractor for transportation of iron ore - disallowance u/s 40(a)(ia) treating the transaction between the Appellant and truck owners as works contract - whether appellant dealt only with the facilitators for the transportation of iron ore minerals from the site to the specified destination and there is no contract between the truck owners and the Appellant? - HELD THAT:- In the case on hand the hiring of the transporter is not on isolated occasion but it was for continuous transportation of iron ore mineral to ports and further the agreement between the assessee and the transporter is based on per M.T. transportation. Therefore, the rate of transportation was agreed between the parties on the basis of the quantity and not on the basis of per trip - payment made to the particular transporter for transportation of iron ore from mines to ports during the year under consideration has to be aggregated for the purpose of section 194C(3) - In this case, the Assessing Officer has only aggregated the amount paid in respect of a particular truck and there may be a case that more than one truck has been hired by the assessee from a particular transporter. Accordingly, we do not find any merit or substance in the contention raised by the assessee.
Amendment to section 40(a)(ia) by Finance Act, 2014 to be considered with retrospective effect - In the ordinary circumstances when an amendment has been specifically brought into statute w.e.f. a specific date then the same cannot be considered as retrospective in nature until and unless the said amendment is for the purpose of supplying an obvious omission in a former legislation or to explain a former legislation. Therefore it is clear that only in the case where the amendment is brought into statute for supply of omission in the existing legislation or it is explanatory in nature it can be considered retrospective. In the case of Vatika Township (P.) Ltd. [2014 (9) TMI 576 - SUPREME COURT], the amendment brought into Section 80IB(10) of the Act was considered by the Hon'ble Supreme Court as retrospective in nature because of the reason that after the said amendment the benefits were available only to some persons and it was detrimental to the other person for the same assessment year.
This is not the case of the assessee before us that amendment in the provisions of Section 40(a)(ia) of the Act discriminates different assessees for the same assessment year. Therefore the said decision cannot be applied to the amendment to Section 40(a)(ia) of the Act as the amendment has been brought prospective w.e.f. 1.4.2015 therefore the same cannot be considered as retrospective.
Appeal of assessee dismissed.
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2016 (8) TMI 1542 - BOMBAY HIGH COURT
Seeking to wind up the Respondent Company - Winding sought on the ground that it is unable to pay its debts - HELD THAT:- The huge amounts are due and payable by the Respondent Company to the Petitioner and which are undisputed. In fact, in discharge of their liability, the Respondent Company had also issued cheques aggregating to a sum of ₹ 2.20 Crores which have been dishonoured. In these circumstances, the Respondent Company is unable to pay its debts which would entitle the Petitioner to an order of admission of the Company Petition.
The Company Petition is admitted and made returnable on 19 September, 2016.
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2016 (8) TMI 1541 - MADRAS HIGH COURT
Detention order - petitioner branded as a "Goonda" - non-consideration of the documents available on record before passing the orders of detention - delay in considering the representations by the statutory authorities - plea of petitioners is that the cases were fabricated by the police in connivance with the local Minister to see that the detenus are confined in prison during the time of Assembly election - attestation of affidavits of the Sponsoring Authority - Nature of Jurisdiction - Unexplained delay renders detention illegal - Bail granted to the accused in similar cases - Non-application of mind - Confusion with regard to adverse case and ground case.
The attestation of Affidavits of the Sponsoring Authority by detaining authority indicates predetermination - HELD THAT:- The sponsoring authority is at liberty to make a request to the Detaining Authority to detain the accused. Mere affidavit is not sufficient. The sponsoring authority must produce materials before the Detaining Authority to show that the detenu is acting in a manner prejudicial to the maintenance of public order and as such, he should be detained under the provisions of Tamil Nadu Act 14 of 1982. Here, in this case, the authority empowered to detain, himself acted as the complainant by attesting the affidavit of the sponsoring authority.
Nature of Jurisdiction - HELD THAT:- The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority - In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the armchair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner of Police himself was part of the team of complainants otherwise called as sponsoring authorities. Thereafter, he turned the chair and acted in a different capacity as the Detaining Authority. The sponsoring authority and Detaining Authority are practically one and the same in all these matters.
The active participation of the Detaining Authority in the process of sponsoring the name of the detenus for detention would go to the root of the matter and, therefore, is sufficient to set aside the orders of detention on the ground of pre-determination - the detention orders are unsustainable in law.
Unexplained delay renders detention illegal - HELD THAT:- The background facts very clearly show that the Minister for Electricity, who was given the authority to consider the representations of the detenus, slept over the issue for days together. The learned Additional Advocate General has given a reason that the Minister himself was a candidate and as such, the matter was delayed. We are not inclined to accept the said submission. In fact, even the Government or Detaining Authority have no such case. The Minister, as a delegate of the Government, was required to consider the representations as expeditiously as possible with all seriousness. The fact that the Minister himself was a candidate cannot be a valid reason to keep the representations pending indefinitely - It is trite that the number of days delay alone are not material. It is the cause for delay which is material. There was no genuine attempt made either by the Detaining Authority or by the Government to explain the inordinate delay in the disposal of the representations submitted by the detenus - the impugned Detention Orders are liable to be quashed on the ground of unexplained delay in considering the representations and its disposal.
Bail granted to the accused in similar cases - HELD THAT:- In the subject cases, bail granted to the accused in Crime No.1273 of 2013 was taken as the basis to arrive at a satisfaction that the detenus are likely to be released on bail. The bail granted to the accused Balamurugan has nothing to do with the cases registered against the detenus. Thiru.Balamurugan is not a co-accused. The Detaining Authority considered irrelevant materials to arrive at a satisfaction that there is a likelihood of the detenus being released on bail. The impugned Detention Orders are liable to be quashed on this ground also.
Non-application of mind - HELD THAT:- The materials available on record would show that the accused were produced on PT warrant. However, in the confession statements, the Inspector of Police made a statement as if the detenus appeared before him on summons. The statement of the Inspector of Police in the respective confession statements goes against the other documents evidencing the production of the accused on PT warrant. The Detaining Authority failed to consider any of these documents and contradictions and signed the Detention Orders in a routine manner.
Confusion with regard to adverse case and ground case - HELD THAT:- When the orders of detention were passed, the detenus were in jail. There are no acceptable materials to show that the detenus would be released on bail or there was such a possibility of their release. The Detaining Authority, on the basis of the so-called similar case registered against another accused in an altogether different case, observed that there is a possibility of the detenus being released on bail. In short, there were no cogent materials before the Detaining Authority to satisfy that the detenus were likely to be released on bail. The mere statement of the Detaining Authority that there is a likelihood of the detenus being released on bail alone is not sufficient. There should be supporting materials available on record. There are no such materials in the subject cases - the Detention Orders are liable to be quashed.
The Habeas Corpus Petitions are allowed.
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2016 (8) TMI 1540 - ITAT AMRITSAR
Addition on account of cash deposited by the assessee in her saving bank account maintained with Induslnd Bank - CIT-A deleted the addition - Department contends that since the assessee had not disclosed the purpose of withdrawal of cash from bank and usage thereof, the ld. CIT(A) ought not to have granted her the benefit of such cash withdrawn from the bank, a long period back - HELD THAT:- As per the decision of the Delhi Bench of the Tribunal in the case of ‘Mrs. Deepali Sehgal’, [2014 (9) TMI 1073 - ITAT DELHI], as correctly taken note of and followed by the ld. CIT(A), it is not mandatory under any law that an individual has to keep his/her savings in the bank account only and not as cash in hand. In ‘Shiv Charan Dass vs. CIT’ [1980 (4) TMI 74 - PUNJAB AND HARYANA HIGH COURT], in this regard, it has been held by the Hon’ble jurisdictional High Court that the onus is on the Department to show that the explanation of the assessee should not be accepted.Further, it is trite that nobody can be asked to prove a negative, as was sought to be done by the AO.
The department is also wrong in contending that since the assessee is not filing her wealth tax returns regularly, the ld. CIT(A) has erred in accepting that the assessee maintains personal books of account and draws personal balance sheet. Here, it needs to be reiterated that it is the department itself, which has accepted the balance sheets drawn by the assessee in her personal capacity and that for the assessment yea₹ 2007-08 to 2011-12, in the wealth tax cases of the assessee, the wealth tax returns filed by the assessee were based on the personal balance sheets of the assessee and it was the same AO who accepted the cash in hand, which was as per the balance sheet of the assessee, for wealth tax purposes.
No material has been brought on record by the Department to contradict the well reasoned findings of fact recorded by the ld. CIT(A). Appeal of the Revenue is dismissed.
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2016 (8) TMI 1539 - ALLAHABAD HIGH COURT
Conspiracy - private persons, who were contractors and builders of a Housing Project - fraudulently and dishonestly caused wrongful loss to the Dena Bank - HELD THAT:- It is clearly envisaged under section 45 of the PMLA that no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless Public Prosecutor has been given an opportunity to oppose the application for such release and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Keeping in view the facts and circumstances of the case, applicant should not to be enlarged on bail in the interest of justice, therefore, the bail application is rejected.
Application dismissed.
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2016 (8) TMI 1538 - ITAT MUMBAI
Disallowance u/s 14A on account of ‘business portfolio’ - HELD THAT:- The situation that has emerged before us is that in view of the decision of the Tribunal of earlier years as well as judgments of Hon’ble Bombay High Court in the case of India Advantage Securities Ltd. [2015 (6) TMI 140 - BOMBAY HIGH COURT] and HDFC Bank Ltd. v. DCIT [2016 (3) TMI 755 - BOMBAY HIGH COURT] and judgment of CCI Limited [2012 (4) TMI 282 - KARNATAKA HIGH COURT], the disallowance u/s 14A should be deleted for both the portfolios i.e. ‘investment’ as well as ‘business’. The only hitch with regard to disallowance made under ‘business portfolio’ is that assessee had himself made a voluntary disallowance.
It is well settled position of law that taxable income of an assessee has to be computed strictly in accordance with the provisions of Income Tax Act, 1961 as explained by the courts from time to time. Thus, disallowance/additions if any can be made only in accordance with law. Neither any item of receipts can be brought to tax nor can any expenditure be allowed/disallowed, merely on the basis of consent or acquiescence or waiver of any party or otherwise. It could be done only in accordance with the provisions of law.
The circular has been taken note of by many courts in their judgments while deciding the identical issues wherein taxpayers have paid more tax than actually due as per law. In this regard, we shall also like to make a mention of Article 265 of Constitution of India which says that ‘no tax can be collected except by the authority of law’. Thus, in the given facts of the case before us and the aforesaid legal position and we find that the disallowance made by the AO u/s 14A on account of ‘business portfolio’ deserves to be deleted in total and therefore, we direct the AO to give relief accordingly. Grounds raised by the assessee are allowed.
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2016 (8) TMI 1537 - DELHI HIGH COURT
Seeking permission for withdrawal of petition - petitioner submits that withdrawal of the present writ petition would be without prejudice to the right to challenge the detention order, post the execution - HELD THAT:- The present writ petition is dismissed as withdrawn with liberty as prayed for.
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2016 (8) TMI 1536 - DELHI HIGH COURT
Failure to tender or pay the amount outstanding in respect of the facilities provided to the respondents - Section 433 (e) & (f) of the Companies Act, 1956 - HELD THAT:- The record reveals that several attempts for service of the respondent were made. Notice sent by registered post for the service of the respondent was refused on 13.01.2015. Speed post sent on 04.01.2015 was delivered on 07.01.2015. The respondent was thereafter served by way of substituted service and notice was published in Rashtriya Sahara (Hindi Edition) dated 09.12.2015 and Statesman (English Edition) dated 10.12.2015. Further publication was carried out in Statesman (English) dated 08.02.2016 and Dainik Jagran (Hindi) dated 08.02.2016. None appears for the respondent despite service several times.
The petition is admitted. The respondent and its Directors are restrained from selling, alienating, parting with possession or encumbering the assets both movable and immoveable of the respondent Company. The Directors are further restrained from operating the bank accounts of the respondent Company. The Directors shall also file the Statement of Affairs with the Official Liquidator within the statutory period - Renotify for directions on 21.03.2017. The Official Liquidator shall file his report before the next date of hearing.
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