|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1662 Records
-
2016 (9) TMI 1648 - ITAT CHANDIGARH
Levy of penalty u/s 271(1)(c) - unexplained cash deposits - CIT(Appeals) not admitting additional evidences as submitted before him - AO concluded that assessee failed to prove identity, credit worthiness and genuineness of the transaction and held that assessee has willfully concealed the particulars of income - HELD THAT:- CIT(Appeals) did not accept additional evidences which are in the shape of confirmations with their addresses, copies of bills and PAN etc. Merely because additional evidences were not admitted in quantum proceedings, is no ground to reject request of the assessee for admission of additional evidence in penalty proceedings which are independent and different proceedings. Since the additional evidences are relevant and required to be looked into in the penalty proceedings, therefore, ld. CIT(Appeals) should have admitted the additional evidences for the purpose of hearing. See Jorawar Singh case [2016 (7) TMI 1672 - ITAT CHANDIGARH]
We set aside the order of ld. CIT(Appeals) in refusing to admit additional evidences. These additional evidences being relevant, shall have to be looked into in order to decide whether assessee is liable for penalty - Appeal of the assessee is allowed for statistical purposes.
-
2016 (9) TMI 1647 - ALLAHABAD HIGH COURT
Recovery of electricity dues outstanding against M/s Aishwarya Ispat Pvt. Ltd.-Respondent-6 - can liability against Respondent-6 be executed against personal assets of petitioner? - HELD THAT:- It is not the case of respondents that petitioner was a guarantor or furnished personal security for discharge of dues of Respondent-6 in case of any default. It is also not in dispute that recovery certificate has been issued against Respondent-6. The dues are in respect of electricity consumed by Respondent-6. There is also no provision under which Director of a Company is personally responsible for discharging outstanding dues of Company if Company commits any default. In these facts and circumstances, dues outstanding against Respondent-6 cannot be recovered from petitioner from personal assets of petitioner.
Petition allowed.
-
2016 (9) TMI 1646 - ITAT MUMBAI
TP Adjustment - recharge/ reimbursement of expenses to AE - reimbursement of salary and travelling expenses - Legitimacy of the expenditure incurred - whether the transaction of reimbursement of salary and travelling expenses can be taken at “Nil”? - HELD THAT:- TPO cannot take the Arm’s Length Price of the transaction at “Nil” unless under a comparable uncontrolled transaction, an independent entity would not pay any amount for rendering of such services. This has to be demonstrated by the TPO. If services have been performed, then Arm’s length Price has to be determined under the prescribed methods of transfer pricing provisions. Once we have found that the salary paid to the MD is in lieu of various kinds of services and activities carried out by him for assessee in India then the value of such transaction, that is, the payment/ reimbursement of the salary cannot be reckoned at “Nil”.
What should be the Arm’s Length Price for the payment of salary? - Here in this case nothing has been brought on record that such a payment/ reimbursement of salary is to a related party or is to an equity shareholder of any of the AEs. The basic substratum for invoking the transfer pricing provision is that there has to be international transaction between the related parties of two or more AEs. Though here in this case the reimbursement of expenses has been made to the AE but the reimbursement relates to salary paid to a third party whose salary has been fully taxed in India. Thus, under the present facts and circumstances of the cases, we hold that there need not be any benchmarking of the reimbursement/recharge of salary and travelling costs for the determination of Arm’s Length Price. That apart, it has also been brought on record that, in the earlier year for similar payment of salary, no adjustment has been made by Department. Hence, in this year also, without there being any change in the facts and circumstances of the case, we are unable to take different stand. Accordingly, the adjustment on account of recharge of salary and travelling cost of Mr. Charles Nuez which has been reimbursed by the assessee to its AE cannot be upheld and the entire adjustment on this score is directed to be deleted.
Adjustment on account of reimbursement of promotional items -The quantum of expenditure can definitely be examined by the TPO but in judging the allowability thereof as a business expenditure, he has no authority to disallow the entire expenditure on the ground that, what benefit assessee has derived. Similar view has been reiterated and explained in the case of CIT v Lumax Industries Ltd [2015 (10) TMI 2509 - DELHI HIGH COURT] Thus, in the present case also, we do not find any reason to uphold the reasoning of the TPO as well as DRP that, the assessee has not received any benefit but it is for the benefit of the AE. Once it is a pure case of cost to cost reimbursement without any markup, then no transfer pricing adjustment can be made by taking the cost as “Nil”. In view of our discussions above, we hold that, no adjustment on account of purchase on promotional items can be made especially by treating it to be “Nil”. Accordingly, the said adjustment is deleted and grounds raised by the assessee on this score are allowed.
TP adjustment on account of “Franchise Fee” - As contended assessee itself has added back the said payment to the AE under section 40(a)(i) on the ground of non-deduction of the TDS - double addition - HELD THAT:- The entire purpose of his discussion was that the assessee should be precluded from not claiming such expenditure in future. Such an action of the TPO/AO is unsustainable because he cannot pass an advance ruling for the subsequent years and all times to come, as the facts and material of the subsequent years and pleadings which assessee might raise cannot be preempted and assessee cannot be precluded for contesting the matter as it will all depend upon the reasoning of the TPO/AO depending upon the material facts for the subsequent years. In any case, since assessee has disallowed the entire payment of “Franchisee Fee” and same has been added back to the income, therefore, there is no question of any addition or adjudication on merits, because it will be purely academic exercise. Accordingly, we are keeping the issue completely open to be argued in subsequent year and assessee has all the rights to plead the case on merits in the subsequent years as when this issue arises.
Double disallowance - Prima facie it appears that Assessing Officer has made the double disallowance because, at the first instance he has proceeded with the income shown in the return of income Rs.6,50,39,983/-which also included the amount of Rs.3,97,47,172/- and thereafter he made further addition of same amount under Transfer Pricing adjustment which assessee already had added/included as its income. Accordingly, we direct the AO to remove the double disallowance and grant consequential relief. Thus this ground is also treated as allowed.
-
2016 (9) TMI 1645 - DELHI HIGH COURT
Delay of 620 days - grounds for condonation of delay are that there was reorganisation of the panel, that counsel did not hand over the files to the revenue’s officials upon their receiving them after such reorganisation and the difficulties it underwent on account of transition during the e-filing phase. These reasons are unpersuasive – they are similar to the reasons rejected in a number of other cases (See CIT vs. Dion Global Solutions Ltd.[2015 (8) TMI 175 - DELHI HIGH COURT]
Whether embedded software can be segregated for the purpose of separate assessment? - Issue is no longer res-integra and is the subject matter of a division bench ruling in Director of Income Tax vs. Ericsson, A.B.. [2011 (12) TMI 91 - DELHI HIGH COURT] against the revenue.
-
2016 (9) TMI 1644 - ITAT KOLKATA
Validity of reopning of assessment - Reopening beyond period of four years - Disallowance of provision towards warranty expenses and set off of brought forward losses of amalgamating company - HELD THAT:- Reopening of assessment originally completed under section 143(3) by the Assessing Officer after the expiry of four years from the end of the assessment year under consideration without pointing out specifically in the reasons recorded that the income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment is bad in law and the assessment completed under section 143(3)/147 in pursuance thereof is liable to be cancelled on this ground also. We accordingly cancel the assessment made by the Assessing Officer under section 143(3)/147 holding the same as bad in law and allow the Cross Objection filed by the assessee.
-
2016 (9) TMI 1643 - BOMBAY HIGH COURT
Seeking restraint from using the domain name secondshaadi.com in any manner, including as part of the domain name for their web-based matrimonial services - seeking restraint on contesting Defendants from passing off their website as that of the Plaintiff - restraint on Defendant No. 5, a webhost and a domain name registrar, from hosting the contesting Defendants’ website - seeking to direct it to de-register or terminate the contesting Defendants’ domain name registration - HELD THAT:- Both shaadi.com and secondshaadi.com are generic or commonly descriptive of their services (and each service is distinguishable), then Section 30(2)(a) must apply. Further, if these expressions commonly describe the nature of the services, then this use is also protected by Section 35.
In Notice of Motion (L) No. 2312 of 2014, I granted the Plaintiff an injunction against the proprietors of www.getshaadi.com. Plaint, Exhibit “F1”, p. 107–120 That relief, however, was in passing off. On those defendants’ website, the emphasis was on the words ‘shaadi.com’, and the word ‘get’ was set off above the word ‘shaadi’. The attempt was ex facie deceitful: those defendants attempted to divert traffic from the Plaintiff’s site to theirs. This is certainly not so in the present case - There is also a device of what is presumably a leaf placed by the word ‘second’. Below the expression ‘shaadi.com’ is the tagline “Start a New Life”, which is in no manner similar to the Plaintiff’s tagline “The World’s No.1 Matchmaking Service”. The font and stylization of the contesting Defendants’ mark is completely different from that of the Plaintiff. So, too, is the get up and look-and-feel of the two websites.
In Notice of Motion (L) 1504 of 2014, where the offending website was ShaadiHiShaadi.com, I granted the Plaintiff interim reliefs since, on comparing the two websites, I found very many similarities. Plaint, Exhibit “F2”, pp. 121–129 Although the get up of the two websites was not identical, the defendants used the tagline “World’s Biggest Matrimonial Service”, which was far too similar to the Plaintiff’s tagline (as it then was), “The World’s Largest Matrimonial Service”. Evidently, this was merely an attempt by those defendants to create an illicit association with the Plaintiff’s website, since those defendants’ website was nowhere close to being the “World’s Biggest Matrimonial Service”. Those defendants used code to divert traffic headed for the Plaintiff’s site to their own, a case that is pleaded but not pressed in the present case, and which, in any case, is unsupported by any cogent material.
Acquiescence is a species of estoppel, and that makes it both a rule of evidence and a doctrine in equity. Where a party with knowledge of its rights stands silent and watches another deal with the property in a manner inconsistent with the claimant’s right; and where the claimant makes no objection while the act continues, progresses and grows, he cannot later be heard to complain. A trade mark proprietor who, not ignorant of his rights, sits on his hands and watches his competitor grow in the market, taking no action while the other does not, can claim no exclusivity. He must be deemed to have affirmed his rival’s use of the mark.
The Notice of Motion fails. It is dismissed, with no order as to costs.
-
2016 (9) TMI 1642 - ITAT DELHI
Maintainability of appeal before the Tribunal - low tax effect - HELD THAT:- As noticed that the CBDT has issued Circular No. 21 of 2015 dated 10.12.2015 with retrospective effect, revising the monetary limit to Rs.10,00,000/- for not filing appeals before the Tribunal. Learned Sr. DR could not controvert the fact that tax effect involved in the appeal is less than Rs.10,00,000/-.
From para 10 of the above Circular, it is palpable that the Instruction is applicable to the pending appeals also with retrospective effect and there is a clear-cut direction to the Department to withdraw or not press such appeals filed before the ITAT, wherein tax effect is less than Rs.10,00,000/-. Going by the prescription of the afore-noted Circular, we are of the view that the Revenue should have either not filed the instant appeal before the Tribunal or withdrawn the same as the tax effect in this appeal is admittedly less than the prescribed limit i.e. Rs. 10,00,000/- for not filing the appeal - we dismiss the instant appeal without going into merits of the case - Department is at liberty to file the Miscellaneous Application, if the tax effect is found to be more than the prescribed limited of Rs. 10 lacs or otherwise.
Appeal of the Revenue stands dismissed.
-
2016 (9) TMI 1641 - SUPREME COURT
Molestation - Reliability of statements of witnesses - acquittal of the accused - offence Under Section 354 of the Indian Penal Code - HELD THAT:- The High Court, on proper re-appreciation of the entire evidence, came to the right conclusion that the prosecution was successful in proving the case beyond reasonable doubt and the offence punishable Under Section 354 of the Indian Penal Code was made out. There is devastating increase in cases relating to crime against women in the world and our country is also no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the courts to ultimately decide whether such incident has occurred or not. The courts should be more cautious in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds. By the consistent evidence of Ms. Aradhana (PW-13), the prosecution has proved beyond reasonable doubt the offence committed by the Appellant Under Section 354 of the Indian Penal Code. A charge Under Section 354 of the Indian Penal Code is one which is very easy to make and is very difficult to rebut. It is not that on account of alleged enmity between the Appellant and Shri Duggal and Shri Ojha, he was falsely implicated. It would, however, be unusual in a conservative society that a woman would be used as a pawn to wreak vengeance.
It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events which we have detailed earlier indicates that the Appellant-accused had the requisite culpable intention.
The uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence - No particular number of witnesses is required for proving a certain fact. It is the quality and not the quantity of the witnesses that matters. Evidence is weighed and not counted. Evidence of even a single eye witness, truthful, consistent and inspiring confidence is sufficient for maintaining conviction. It is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Having examined all the witnesses, even if other persons present nearby not examined, the evidence of eye-witness cannot be discarded.
Ms. Aradhana (PW-13) withstood her testimony from beginning till the end and her deposition was found reliable and corroborative with other prosecution witnesses and both the courts below were right in upholding the conviction of the Appellant-accused Under Section 354 of the Indian Penal Code.
The conviction of the Appellant-accused Under Section 354 of the Indian Penal Code is upheld while modifying the sentence to the period already undergone - appeal disposed off.
-
2016 (9) TMI 1640 - GUJARAT HIGH COURT
Seeking permission for withdrawal of petition - attempt to seek appropriate direction from the Court for directing the adjudicatory authorities to abide by the directions of the Tribunal and adjudicate in light thereof - HELD THAT:- Permission as sought for is granted. Matter is disposed of as withdrawn. This Court has not opined on merits and this withdrawal shall not be treated as an impediment in the way of the petitioner in approaching the Tribunal within time limit prescribed.
-
2016 (9) TMI 1639 - SC ORDER
Penalty u/s 271D - whether share application money received in cash is in the nature of deposit and not in contravention to the provisions of Section 269 SS ? - As per HC Assessee was under the bona fide impression that the money received was only towards allotment of shares and it is not a loan or deposit. Hence we find when rigours of Section 269SS of the Income Tax Act cannot be applied - HELD THAT:- Delay condoned. Leave granted.
-
2016 (9) TMI 1638 - SC ORDER
Proportionate Deduction u/s. 80IB(10) - justification in upholding the decision in proportionately allowing the deduction u/s. 80IB(10) out of profits in respect of wings “A” to “F” - HELD THAT:- Delay condoned. The special leave petition is dismissed.
-
2016 (9) TMI 1637 - ITAT MUMBAI
Estimation of income by way of commission from the business of accommodation entries - HELD THAT:- Similar issue had come up before the Tribunal in the cases of Goldstar Finvest Pvt. Ltd. [2008 (3) TMI 687 - ITAT MUMBAI],Alliance Intermediateries and Network Pvt. Ltd. [2016 (2) TMI 1113 - ITAT MUMBAI] and Mr. Mukesh Choksi [2016 (5) TMI 1408 - ITAT, MUMBAI] wherein as find that the Tribunal had directed that the income by way of commission from the business of accommodation entries being carried out by Mukesh Choksi group was liable to be assessed at 0.15% instead of 2% applied by the Assessing Officer.
Since it was a common point between the parties that the appellant company before us is also a part of the entities controlled by Mr. Mukesh Choksi, in our view, the aforesaid decisions are relevant to assess the income of the assessee. In this view of the matter, we, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to recompute the commission income from the business of providing accommodation entry in conformity with the aforesaid precedents.
We set-aside the order of the CIT(A) and restore the matter back to the file of Assessing Officer to redetermine the total income as per aforesaid directions. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard before recomputing the income as per law.
-
2016 (9) TMI 1636 - SC ORDER
Deduction u/s 80IA - Revenue generated or the profit derived by the power undertaking - Dispute in rate at which electricity supplied will be computing the benefit under the section - HC held as unable to hold that the benefit under Section 80IA is not available to the assessee because the power generated was consumed at home or by other business of the assessee. It is now well-settled that a statute granting incentives for promoting growth and development should be construed liberally so as to advance the objective of the provision and not to frustrate it - HELD THAT:- Leave granted.
Post alongwith connected matters for final disposal in the 3rd week of January, 2017.
List of connected matters will be furnished by learned counsel for the parties.
-
2016 (9) TMI 1635 - ITAT KOLKATA
Disallowance u/s. 14A r.w.s Rule 8D(iii) - HELD THAT:- We find that this issue is squarely covered in favour of assessee in its own case for A.Y 2009-10 [2016 (3) TMI 873 - ITAT KOLKATA] disallowance U/S 14A read with Rule 8D is to be in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income.
Addition u/s 14A r.w.r. 8D(2)(ii) on account of interest - HELD THAT:- We find that the entire investments were made long back by the assessee. We hold that the assessee was having sufficient own funds to make those investments in the earlier years. We hold that the Learned AO had not brought on record any nexus between the borrowed funds and the investment in shares of various companies - We also hold that the investments made in subsidiary companies are to be treated as strategic investments and hence the disallowance u/s 14A of the Act would not operate at all as the investment made thereon is not with an intention to earn any exempt income in the form of dividend but only for obtaining controlling interest in the said companies and to further the business interests of the assessee in the said company.
Thus we hold that no disallowance of interest is required to be made under rule 8D(i) & 8D (ii) as no direct or indirect interest expenditure has incurred for making investments. Hence this ground of appeal of the Revenue is dismissed.
Addition u/s 14A r.w.r. 8D(iii) to the book profit computed u/ s 115JB of the Act - HELD THAT:- While computing the "Book Profit" of the company under the provisions of section 115JB of the Act, any disallowance made under the normal provisions of the Act also cannot be given effect to for arriving at the "Book Profit" for the purpose of Section 115JB of the Act. Accordingly, this ground raised by the assessee is allowed in its favour.
-
2016 (9) TMI 1634 - DELHI HIGH COURT
Disallowance u/s 14A - assessee had received dividend income - HELD THAT:- As in terms of the previous decision in Commissioner of Income Tax VI v. Taikisha Engineering India Ltd. [2014 (12) TMI 482 - DELHI HIGH COURT] there has to be express opinion formation before invocation of Rule 8D. Rule 8D is itself premised upon an understanding that not the entire investment but that part of the investment which yields tax exempt income is what ought to be considered as one of the elements. This in accordance with the rule held in ACB India Ltd. [2015 (4) TMI 224 - DELHI HIGH COURT] For these reasons, we see no reason to interfere with the order of the ITAT under Section 14A. The first question is answered accordingly.
Product development expenditure - Assessee had claimed it to be on the revenue’s side - AO was of the opinion that the product in question, i.e., samples would result in something of an enduring advantage to the assessee and that it could claim 1/3rd of the expenditure for this year from the balance in the succeeding two years - CIT (A) allowed the assessee’s contention and the ITAT affirmed it - HELD THAT:- As it is purely a question of fact which this Court would not interfere with.
That apart the Court notices that the product in question developed was connected with the assessee’s export business in garments. For the relevant year it had reported total receipts to the tune of ₹ 686 crores. Given the nature of the article in question, i.e., its seasonal characteristics, this Court is in agreement with the reasoning of the CIT (A) and ITAT. Furthermore, the revenue had been accepting similar expenditure on the revenue side for the previous years.
-
2016 (9) TMI 1633 - SUPREME COURT
Right to vote of persons living in illegally constructed buildings in a Cantonment area - Scope of the word 'resident' - HELD THAT:- The scope of word 'resident' as defined in the Cantonment Act, 2006 is completely different from that of 'ordinarily resident' as defined in the Representation of the People Act, 1950. The restrictive definition of a 'resident' in the Act is peculiar to the Cantonments whereas the definition of 'ordinarily resident' is very wide. Even if a person is residing in an unauthorised structure he will be entitled to be included in the electoral rolls under the Representation of the People Act.
Having considered the ambit of word 'resident' as defined by the Act we proceed to deal with the Rules which provide for the manner of preparation of the electoral rolls. The thrust of the Writ Petitions filed by the First Respondent is that the electoral rolls have to be prepared strictly in accordance with Rule 10(3) of the Rules - It is evident from a plain reading of Rule 10(3) that the names of electors shall be arranged according to house numbers. It is clear that persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10(3). Rule 10(3) is not in conflict with Section 28 of the Act. On the other hand, Rule 10(3) is strictly in conformity with Section 28 making only persons living in houses with numbers eligible to vote - The submission on behalf of the Appellant that Rule 10(3) defeats the substantive rights conferred by Section 28 is not correct and is rejected.
An avowed legislative policy and the provisions of the Act relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area. The Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.
Appeal dismissed.
-
2016 (9) TMI 1632 - BOMBAY HIGH COURT
Condonation of delay of about four and half years - whether the delay so caused is sufficiently explained by the appellants and whether the grounds assigned by the appellants for occurrence of such delay can be accepted to be just and sufficient? - HELD THAT:- There cannot be a dispute about the proposition which has been upheld by the Honourable Apex Court in several judgments that a huge delay also can be condoned if justifiable reasons are assigned for occurrence of such delay and, at the same time, if no proper reasons are assigned, the delay of even few days cannot be condoned.
In the instant case, as has been observed by the learned Tribunal, the claimants had prayed for condonation of delay putting forth the grounds of illiteracy, poverty and lack of communication between them and their Advocate. It is also the case of the claimants that they did face lot of difficulties in collecting necessary Police papers and getting them translated for the purpose of filing the petition before the Tribunal. All of such grounds are rejected by the Tribunal.
The material on record shows that the deceased was a bona fide passenger and valid Railway ticket was found in his pocket at the time of inquest panchnama prepared by the Police machinery. Prima facie material is also there on record showing that the deceased suffered death in an untoward incident. When there is a prima facie merit in the application or appeal, the Courts or the Tribunals shall not shut the doors of justice only on the technical ground of limitation. Delay in respect of such cases has to be liberally condoned where there is a prima facie merit in the case brought out before the Court or the Tribunal. Substantial justice must be the criteria in disposing of the application under Section 5 of the Limitation Act and liberal view has to be taken so as to advance substantial justice.
Having considered the material on record evidencing that the deceased was a bona fide passenger and that there is reason to believe that he suffered death in an untoward incident, the delay caused in filing the application deserves to be condoned - Application allowed.
-
2016 (9) TMI 1631 - ITAT VISAKHAPATNAM
Reopening of assessment u/s 147 - chargeability of capital gains - residential house received as a gift from her husband - CIT-A deleted the addition - HELD THAT:- The assessee has received a residential house as a gift from her husband dated on 17.11.1977. She had given the said property to M/s. Dutta Constructions, Vijayawada vide agreement dated 29.1.2001. As per the said agreement, she has to received 50% of the constructed area of the commercial complex to be constructed by the developer. As per the A.O., the developer of the property has obtained the approval no.1440/2003. Subsequent to the approval only, the construction was started and partly completed during the financial years 2004-05 and 2005-06.
We find that the assessee has also offered capital gains for the assessment year 2005-06 as well as 2006-07. It appears from the record that though the assessment for the A.Y. 2005-06 is not before us, the A.O. has completed assessment u/s 143(3) of the Act, thereafter the Commissioner has issued a notice u/s 263 - Assessee carried matter in appeal before the ITAT, Visakhapatnam. The ITAT, Visakhapatnam Bench has set aside the order of the Commissioner u/s 263 of the Act and directed the A.O. to complete the assessment u/s 143(3) r.w.s. 254 of the Act.
The order already passed on 24.2.2015 and the order is under appeal before Ld. CIT(A). In so far as, assessment year 2006-07 is concerned, the Ld. CIT(A) without considering the agreement various clauses incorporated, without considering the facts and circumstances of the case, without considering the capital gains offered by the assessee herself simply held that the assessment year 2001-02 is not before me and it has to be taxed only in assessment year 2001-02. We find that the order passed by the Ld. CIT(A) is not correct and the Ld. CIT(A) ought to have considered all the details. We also find that in the assessment years 2005-06 and 2006-07 facts are similar - we find that the request made by the Ld. D.R. is justified and accordingly we set aside the order passed by the Ld. CIT(A) and direct the Ld. CIT(A) to examine all the details and decide de-novo, in accordance with law. Appeal filed by the revenue is allowed for statistical purposes.
-
2016 (9) TMI 1630 - SUPREME COURT
Misconduct - gross irregularities and misconduct including of misplacing the clearing instruments relating to various customers - Whether the High Court was justified in directing stay of the disciplinary proceedings initiated by the Appellant-Bank against the Respondent until the closure of recording of prosecution evidence in the criminal case instituted against the Respondent, based on the same facts?
HELD THAT:- It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in series of decisions.
This Court in THE DIVISIONAL CONTROLLER, KSRTC VERSUS MG VITTAL RAO [2011 (11) TMI 419 - SUPREME COURT] has summed up the same and held that Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.
Indisputably, the alleged misconduct has been committed as far back as May 2006. The FIR was registered on 5th December, 2006 and the charge-sheet was filed in the said criminal case on 6th February, 2007. The contents of the charge-sheet are indicative of involvement of the Respondent in the alleged offence. Resultantly, the criminal Court has framed charges against the Respondent as far back as 12th June, 2007. The trial of that case, however, has not made any effective progress. Only 3 witnesses have been examined by the prosecution, out of 18 witnesses cited in the charge-sheet filed before the criminal Court. Indeed, listing of criminal case on 133 different dates after framing of charges is not solely attributable to the Respondent. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that at least 26 adjournments are directly attributable to the accused in the criminal case. That is not an insignificant fact.
Whether Clause 4 of the Settlement would denude the Appellants from continuing with the disciplinary proceedings pending against the Respondent? - HELD THAT:- On the plain language of Clause 4, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material.
In the fact situation of the present case, it is possible to take the view that the first part of Clause is attracted. In that, Respondent has been put on trial in connection with the alleged offence, by framing of charges on 12th June 2007. That has happened after one year from the commission of the offence.
Accordingly, we exercise discretion in favour of the Respondent of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightway - Appeal allowed in part.
-
2016 (9) TMI 1629 - SUPREME COURT
Retirement benefits - applicability of Himachal Pradesh Corporate Sector Employees Pension (Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 - Validity of Employees’ Provident Funds Scheme, 1995 - scheme was adopted for the corporate sector employees, engaged in the State of Himachal Pradesh.
HELD THAT:- It is no doubt true that we have concluded, that ‘the 1999 Scheme’, created a contingent right in the respondent-employees. The respondent-employees comprise of all those employees of corporate bodies, who had opted for ‘the 1999 Scheme’, immediately on its having been introduced; all those, who were deemed to have opted for ‘the 1999 Scheme’ by not having exercised any option; and all those who were appointed after the introduction of ‘the 1999 Scheme’.
Whether any express right or obligation existed, between the respondent-employees and the State Government? - HELD THAT:- One can understand, such a claim arising out of an obligation between an employer and his employees, where there is a quid pro quo – a trade off based on a relationship (as between, an employer and employee). It is however concluded, that there was no such relationship between the State Government, and the respondent-employees. All the corporate bodies in which the respondent-employees were/are engaged, are independent juristic entities. It is therefore apparent, that the claim raised by the respondent-employees, is not based on any right or obligation between the parties.
The issue whether administrative review was permissible, after ‘the 1999 Scheme’ had become operational, has been answered in the affirmative. And finally, it is concluded, that the exercise of such power, while issuing the repeal notification, was based on due consideration.
The legality and constitutionality of the notification dated 2.12.2004 is upheld - appeal allowed.
........
|
