|
Advanced Search Options
Case Laws
Showing 41 to 60 of 1876 Records
-
2017 (12) TMI 1841 - ITAT KOLKATA
Disallowance u/s 14A r.w.r. 8D - assessee did not make any disallowance of the expenses incurred in relation to such exempted income - HELD THAT:- AO can make the disallowances of the expenses incurred in relation to exempt income in pursuance to the provisions as specified u/s 14A - On perusal of the facts of the present case, we note that the assessee has claimed indirect/administrative expenses during the year to the tune of Rs.51,669/- only. Thus, it is undoubtedly clear that actual expenses claimed by the assessee are much less then the expenses disallowed under Rule 8D(2)(iii) of the I.T. Rules by the AO - we are of the view that the expenses to be disallowed under Rule 8D(2)(iii) cannot exceed the actual expenses incurred by the assessee. However, the AO has made the disallowance of the expenses under rule 8D(iii) exceeding the actual expenses.
The act of making the disallowance by the AO under rule 8D(iii) shows that no reference has been made to the books of accounts of the assessee. In such a situation we are of the view that the disallowance u/s 14A viz a viz Rule 8D of the I.T Rules has been made without complying the provisions of law. Thus the addition cannot be sustained in the instant case. Thus, we direct the Assessing Officer to delete the impugned addition. Thus, first issue in grounds of appeal filed by the assessee is allowed.
Addition u/s 115JB for disallowance u/s 14A r.w.r 8D - HELD THAT:- As in recent judgment of Special Bench of Hon’ble Delhi Tribunal in the case of ACIT vs. Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] that the disallowances made u/s 14A r.w.r. 8D cannot be the subject matter of disallowances while determining the net profit u/s 115JB - Thus it can be concluded that the disallowance made under section 14A r.w.r. 8D cannot be resorted while determining the expenses as mentioned under clause (f) to explanation 1 of section 115JB - However it is also clear that the disallowance needs to be made in terms of the provisions of clause (f) to section 115JB of the Act while determining the book profit. In holding so we draw our support from the judgment of Hon’ble Calcutta High Court in the case of CIT Vs. Jayshree Tea Industries Ltd [2014 (11) TMI 1169 - CALCUTTA HIGH COURT]
We hold that the disallowances made under the provisions of Sec. 14A r.w.s 8D of the IT Rules, cannot be applied to the provision of Sec. 115JB - AO shall work out the disallowances in terms of the clause (f) to Explanation-1 of Sec. 115JB of the Act independently after considering the expenses debited in the profit & loss account as mandated under the provisions of law.
-
2017 (12) TMI 1840 - CESTAT MUMBAI
CENVAT Credit - transit loss - short receipt of inputs - benefit of credit on duty paid by the input supplier of Bulk Liquid Cargo to the extent such cargo was lost during transit, was denied - HELD THAT:- The issue stands decided against the Revenue, in the same assessees case in the decision of the Tribunal reported as COMMISSIONER OF C. EX., VAPI VERSUS SAVITA CHEMICALS LTD. [2007 (4) TMI 404 - CESTAT, AHMEDABAD] - even though the said decision in the same assessees case were placed before the lower authorities, they have tried to distinguish the same on the technical ground by observing that the appellant have obtained claim for the loss either from the insurance or from the supplier. Accordingly, they have not followed the earlier decision.
Such claim of loss from the insurance or from the input supplier has got nothing to do with the assessees entitlement to avail the full CENVAT Credit of the duty paid by the supplier. It may not be out of place to observe here that the input recipient is entitled to the entire duty PAID by the input supplier. The same cannot be varied at the recipients end especially when there is no allegation to show that the goods have been diverted during transit to other person - Admittedly, in the present case, the less receipt of liquid cargo is on account of the transit loss, which is bound to happen in the transportation of the liquid cargo, in which case the credit to that extent cannot be disallowed, especially when there is no variation in the quantum of duty paid by the input supplier.
Credit allowed - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1839 - KERALA HIGH COURT
Seeking pre-arrest bail - fraud - money received in lieu of assured job, which ultimately was not granted - offences punishable under Sections 406 & 420 r/w. Section 34 of the Indian Penal Code - HELD THAT:- After considering the nature and gravity of the allegations, the materials in support thereof, the severity of the punishment which conviction would entail, the character and antecedents of the petitioner, the possibility of the petitioner fleeing from justice and other facts and circumstances, the relief of pre-arrest bail can be granted to the petitioner, subject to conditions.
Application allowed.
-
2017 (12) TMI 1838 - ITAT AHMEDABAD
Deduction u/s.80P of the Act on the interest income earned from nationalized banks - CIT (Appeals)-3 confirming the order of the AO holding that the amount of interest income earned on fixed deposits made with nationalized banks and co operative bank is not profits and gains attributable to the activity of providing credit facilities to members and hence not eligible for deduction under section 80P of the Act and thereby considering the amount of interest as income from other sources liable to be taxed under section 56 of the Act.- HELD THAT:- In this case, interest amount was received form Allahabad bank, Bank of Baroda and Baroda center Co-op. Bank respectively. From the details, it can be seen that the receipts of interest has been received from other than Co-operative organization i.e. from nationalized banks on FDRs, which is nothing but interest earned on surplus funds invested in bank deposits i.e. FDRs..
We direct the Assessing Officer to verify the assessee’s claims of pro rata expenses by examination the record to be shown for verification by the assessee and accordingly, netting of to be allowed. Appeal of assessee allowed.
-
2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - parties to the lis failed to amicably settle the matter inter se the parties, despite sufficient opportunities having been afforded to them during the pendency of revision - doctrine of merger - HELD THAT:- The Hon’ble Apex Court in the case of K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT] has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded.
Maintainability of present review petition - doctrine of merger - HELD THAT:- The doctrine of merger does not apply in the case of dismissal of special leave petition. In the case at hand, special leave to appeal having been filed by the petitioner/applicant has been dismissed as withdrawn by nonspeaking order and as such, does not result in the merger of impugned order in the order of the Hon’ble Supreme Court.
This Court holds that review petition filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 10.3.2017, passed by this Court in Criminal Revision No.394 of 2015, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
-
2017 (12) TMI 1836 - ITAT VISAKHAPATNAM
Depreciation from the estimation of income - AO completed the assessment estimating the income @ 8% on impugned contracts, 6% on sub contracts, 2% on sub contracts given, however, the A.O. has not allowed the statutory allowance of depreciation - HELD THAT:- In the instant case there is no dispute that facts are similar to that of the assessee’s case for the assessment year 2009-10.D.R. did not bring any other case law or distinguished the facts of the case. Therefore, respectfully following the view taken by the ITAT for the earlier year in the assessee’s own case [2015 (11) TMI 1530 - ITAT VISAKHAPATNAM], we direct the A.O. to allow the depreciation against the income estimated from the contract receipts. However, the income so computed shall not be less than the returned income. Accordingly, the appeal of the assessee is partly allowed.
-
2017 (12) TMI 1835 - ALLAHABAD HIGH COURT
Rejection of rate of interest - one time settlement - HELD THAT:- The petitioner Company was allotted a commercial plot in the year 2008 being the highest bidder therefor. Initially, an allotment order was issued in favour of the petitioner Company on 11.4.2008, but later on, there was some variation in the land size and consequently, another allotment order dated 2.12.2009 was issued. Thereunder, the petitioner Company was liable to pay 50% of the amount in four interest free installments and the remaining 50% in 72 monthly installments alongwith interest at the rate of 18% per annum and in case of default in payment of the installments, additional interest at the rate of 24% as penal interest.
This Court dismissed the writ petition by order dated 21.6.2016 not only on the ground that the petitioners have failed to comply with the order dated 29.1.2013 passed in the first writ petition, but also because the Court found that the Advocate of the petitioners made an incorrect statement before the Court and tried to mislead it. This Court, while granting liberty to the petitioners to raise grievance, if any, in regard to the rate of interest by filing suit or by approaching such forum as may be available to them, did not mean that the petitioners would re-agitate the matter before this Court, once again, under the garb of certain communication received from U.P. Awas Evam Vikas Parishad intimating the petitioners that the amount determined under the OTS scheme is wholly justified and it is not possible to accept its objection regarding rate of interest.
Petition dismissed.
-
2017 (12) TMI 1834 - HIMACHAL PRADESH HIGH COURT
Smuggling - Charas - whether there is any provision to file a supplementary complaint and if so can the same be filed without obtaining leave of the Court, as admittedly accused Khekh Ram has been convicted only on the basis of the supplementary complaint? - HELD THAT:- Indisputably, the complaint in this case was initially filed only against the accused Nilmani whereas supplementary complaint came to be filed thereafter against accused Khekh Ram. It is also not in dispute that since complaint was filed by a public servant acting in discharge of his official duties, therefore, the recording of preliminary evidence under Section 200 of the Criminal Procedure Code was dispensed with and after perusing the complaint and the documents, the learned Special Judge took cognizance only against Nilmani as he was sole accused.
There are no hesitation to conclude even though there exists no specific provision in the Code of Criminal Procedure to file supplementary complaint in a complaint case, however, if on further investigation and with the express leave of the court, the culpability and the complicity of any other person is established the supplementary complaint be filed.
Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside - the appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case - appeal allowed.
Smuggling - contraband item - facts brought on record by the NCB falsify the case of the prosecution or not - mere paper work and nothing happened and no such incident took place at any point of time or not - failure to connect the FSL report Ex.PW1/A with the alleged contraband - failure to comply with Section 42(2) of the Act - non-joining of independent witness is fatal to the case of the NCB - NCB case is full of infirmities, discrepancies, embellishments and improvements etc. - Appellant has been wrongly implicated while the real culprits let off by the respondents - Non-interrogation of the appellant casts serious doubt on the NCB story - HELD THAT:- Following conclusion is reached:-
(i) Even though the specific case set-up by the NCB is to the effect that the accused had been apprehended at about 8:30 p.m. on 20.10.2014 and as per PW-10 he was not allowed to go anywhere till 21.10.2014 at 2:00 a.m. and had not contacted anyone on his mobile phone nor he receive any call. However, the call details clearly prove that he was in constant touch with number of persons from 8:30 p.m. on 20.10.2014 till 12:23 p.m. on 21.10.2014 and as many as 34 calls had been made.
(ii) The contraband alleged to have been recovered on 20.10.2014 but in case the memo of recovery Ex.PW9-D is perused, the same is dated 21.10.2014.
(iii) The witnesses S/Shri Surjit Singh and Roshan Lal whose statements have been recorded under Section 67 of the Act and available as Ext.PW-9/Q-1 and Ext.PW9/E are conspicuously silent about the receiving of the secret information and transmitting the same to the PW-7, Superintendent, NCB at 6:30 p.m. on 20.10.2014.
(iv) It is the specific case set-up by the NCB that no proceeding whatsoever conducted on the spot i.e. ‘Shat’ because it was dark, therefore, the accused was taken to Zonal Office, Mandi where search and seizure proceedings were conducted. PW9 has claimed to have issued two notices Ext.PW-9/A i.e. option given to the appellant under Section 50 of the NDPS Act and Ext.D-2, notice given to the appellant under Section 67 of the NDPS Act and in both these notices, the place of issuance is mentioned as ‘Shat’.
(v) Memo Ext. PW9/A does not contain any date when the same was prepared.
(vi) In Panchnama Ext.PW9/F, the time of receiving information and the time of reaching is tampered with.
(vii) In Ext.PW9/G, the statement of the accused under Section 67 of the Act, the date has been tampered with and changed from 21.10.2014 to 20.10.2014 to show the arrest of the accused.
(viii) The seals alleged to have been used are different from those exhibited on the record.
(ix) The information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and realizing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference.
(x) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them.
(xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW- 7/A is not a FAX copy and further admit that the FAX copy has not been placed on record.
(xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard.
It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subsequently on 22.10.2014.
(xiii) It is the case set-up by the NCB that the apprehension, search and seizure were conducted after sun set and before sun rise. Therefore, as per the mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity, however, no such reasons find mention in Ext.PW7/A.
(xiv) The entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each had been sent. Therefore, even assuming that the case set-up by the NCB is proved to the hilt even then it is only 100 grams of charas that can be said to have been recovered from either of the accused for which the maximum conviction would be about one year and concededly the appellants have undergone more than the aforesaid said period in custody.
(xv) There is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on the vital aspects of the case.
There are no hesitation to conclude that the NCB has miserably failed to lead cogent, reliable and satisfactory evidence to prove the guilt of the accused beyond reasonable doubt - appellant is acquitted of the charges framed against him - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1833 - ITAT CHENNAI
TDS u/s 195 - assessee has paid co-location charges outside the country - Assessee clarified that co-location charges is nothing but charges paid by the assessee outside the country for storage of electronic data in a manner which can be retrived by the customers outside the country, the assessee has paid storage charges which is known as co-location charges - HELD THAT:- From the material available on record it appears that Cinenet Communications Inc. USA is in the business of providing Data Centre Racks. The assessee has utilised racks space provided in Data Centre Racks owned and maintained by Cinenet Communications Inc USA. In case of technical issue, Cinenet Communications Inc appears to have provided basic support for use of racks. Moreover, payment made to Novatel Ltd. and Tata Communication (US) Inc, the assessee claims before the CIT(Appeals) that the service was utilised outside the country. Therefore, admittedly, the payment was made to the company in USA. In the case of Verizon Communications Singapore Pvt. Ltd.[2013 (11) TMI 1058 - MADRAS HIGH COURT] the payment was made to Singapore company. Therefore, here we have to examine the Double Taxation Avoidance Agreement between India and USA.
Both the authorities had no occasion to examine the Double Taxation Avoidance Agreement between India and USA. Moreover, it is also to be examined how the electronic data was transmitted to USA.
Whether the data stored in Data Centre Racks of Cinenet Communications Inc was used by any other Indian customers also needs to be examined - whether the recipient company in USA has any permanent establishment in India or whether they have any business connection in India needs to be examined in the light of Double Taxation Avoidance Agreement between India and USA. Since such an exercise was not done by both the authorities below, this Tribunal is of the considered opinion that the matter needs to be re-examined.
Thus Assessing Officer shall re-examine the matter in the light of the material that may be filed by the assessee and the Double Taxation Avoidance Agreement between India and USA and decide the issue afresh in accordance with law - Appeal filed by the assessee is allowed for statistical purposes.
-
2017 (12) TMI 1832 - ITAT DELHI
Addition on account of reimbursement of repair charges - spare parts purchased from its AE - HELD THAT:- Reimbursement of actual cost of purchase, then ostensibly there is no requirement of tax deduction at source or withholding of tax while making the payment to non-resident which is not in the nature of income to the non-resident India. It is not the case of the Revenue that there is an element of income which is chargeable to tax in the hands of the non-resident on account of purchase transaction of spare parts and once that is so, then no withholding of tax is required, which proposition has been upheld in various judgments as cited by the learned counsel including that in the case of GE India Technology Centre Pvt. Ltd. [2010 (9) TMI 7 - SUPREME COURT]
Assessee has not furnished any bill/vouchers invoices for the purchase or assessee could not furnish details of parties to whom it had rendered repair services, we find that assessee had given the detail of the spare parts purchased from its AE, a copy of which is appearing at page 16 of the assessee's paper book which gives the description of the product; the purpose for which such product was purchased; month of purchase amount in US dollars; and conversion date as on debit date, etc. These details goes to show that the products have been imported from the AE for which assessee had made the payment on cost to cost basis. Thus, it cannot be held that the assessee has not imported or purchased the spare parts from its AE and once it is established that the spare parts have been imported, then, liability to pay for the cost of spare parts to its AE arises to the assessee. Further, to prove that assessee has utilized these costs, it has filed copies of AMCs with various parties in India on sample basis. Reasoning given by the Assessing Officer for making the addition on both the counts does not survive and accordingly, ground as raised by the Revenue is dismissed.
Addition on account of expenses claimed in the P & L account - HELD THAT:- As cost of expenditure on account of AE has been loaded by the assessee so as to suggest that the loss incurred by the assessee is attributable due to loading of the cost of the AE. In any case, once the transaction with the AE has not be disturbed and the ALP has been accepted, then such an inference drawn by the Assessing Officer cannot be held to be justified. Learned counsel has also pointed out before us that in all the past year the assessee's case has been made in scrutiny proceedings and in none of the years, there is any whisper that losses incurred by the assessee is an account loading of cost by foreign entity on the assessee. In the past also transfer pricing analysis has been undertaken by the assessee has been accepted in wake of these fact also, the observation and the conclusion of the Assessing Officer is definitely ill founded and cannot be sustained and the order of the ld. CIT(A) in deleting the said addition is confirmed.
Revenue appeal dismissed.
-
2017 (12) TMI 1831 - ITAT KOLKATA
Credit of TDs deducted towards Mobilization Advance recovered - HELD THAT:- The Act and Rules are clear that credit of TDS can be granted only in the year in which the income/receipt on which such tax deducted at source is assessable to tax. Thus, in my view the order of Ld. CIT(A) is against the provision of the Act. Hence, the same is reversed and the appeal of the revenue is allowed.
Coming to the cross objection the claim of the assessee is in accordance with Section 199 read with Rule 37BA(3) of the Act. The assessing officer directed to grant credit as per law to the assessee in the year which mobilization receipt is offered to tax as income.Appeal of the Revenue is allowed and the Cross objection of the assessee is disposed off as above.
-
2017 (12) TMI 1830 - RAJASTHAN HIGH COURT
Reassessment proceedings u/s 148 to a dead person - HELD THAT:- The factum of Tara Bhardwaj death on 11.10.2010 is not in dispute. From the record, it is apparent that the petitioner vide letter dated 03.09.2013 informed the Income Tax Department of Ms.Tara Bhardwaj’s death on 11.10.2010. That information was mechanically receipted and overlooked. The death certificate of Ms. Tara Bhardwaj has now admittedly submitted to the Income Tax Department testifying of her death on 11.10.2010.
It is thus apparent that the notices impugned have been issued to a dead person and cannot sustain.
-
2017 (12) TMI 1829 - SUPREME COURT
Smuggling - Proclaimed Offenders - jurisdiction to summon additional accused persons - authenticity of the evidence in terms of Section 65-B of the Evidence Act - HELD THAT:- Issue notice to the standing counsel for the State of Punjab. There shall be stay of further proceedings before the trial Court.
-
2017 (12) TMI 1828 - CESTAT CHENNAI
Refund of SAD - rejection of refund on the ground that there is discrepancy in the description between the goods imported and subsequent sale of goods in India - N/N. 102/2007-Cus. as amended - HELD THAT:- The issue is no longer res integra and it has been settled in a number of Tribunal decisions that minor differences in description of goods and sales invoices cannot disentitle the importer from availing benefit of Notification No.102/2007-Cus.
Reliance placed in the decision in the case of COMMISSIONER OF CUSTOMS (SEA EXPORT), CHENNAI VERSUS SHRI RAM IMPEX INDIA (P) LTD. [2013 (11) TMI 1354 - CESTAT CHENNAI] where it was held that There is no condition in the Notification that the Bill of Entry number should be mentioned in the sale invoice.
Appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1827 - ITAT DELHI
Benefit of exemption u/s 11 & 12 - activities of the trust were not within the purview of Section 2(15) - CIT-A allowed the deduction - HELD THAT:- CIT (A) held that the assessee is entitled to the benefit of exemption u/s 11 & 12 of the Income Tax Act, 1961 for the AY 2009-10, Department preferred an appeal before the Tribunal [2013 (9) TMI 84 - ITAT NEW DELHI] and such an appeal was dismissed by the Tribunal by way of order [2013 (9) TMI 84 - ITAT NEW DELHI] which also shows that it was held therein that the assessee is entitled to the benefit of the exemption u/s 11 & 12 of the Act
Claim of depreciation to the assessee trust - Following the decision of jurisdictional High Court in DIT (E) vs. Indraprastha Cancer Society [2014 (11) TMI 733 - DELHI HIGH COURT] this Tribunal held for the AY 2011-12, that the assessee is entitled to claim depreciation on the fixed assets which were claimed on application of income in earlier years. Nothing contrary is brought on record by the Revenue to disturb the findings of the Tribunal in assessee’s own case for the assessment years 2009-10 & 2011-12 on the aspect of entitlement of the assessee to benefit u/s 11 & 12 of the Act and also to claim depreciation on fixed assets which were claimed as application of income in earlier years. Revenue appeal dismissed.
-
2017 (12) TMI 1826 - ITAT PUNE
Deduction u/s. 80lB for Goa Unit - sale of scrap as receipts there from was not income from sale of manufactured Products or By Products of the industrial undertaking - Whether CIT(A) has erred in allowing the appeal of the assessee u/s. 80lB on income earned from sale of scrap when it was not derived from the activities of the eligible business? - HELD THAT:- We find that similar issue of claim of deduction u/s. 80IB of the Act on sale of scrap generated out of manufacturing process was treated as business income and the deduction u/s. 80IB of the Act was allowed.
The issue arising in the present bunch of appeals filed by the Revenue is identical to the issue in the earlier years [2015 (9) TMI 892 - ITAT PUNE] and there is no change in the factual aspect. Accordingly, we uphold the order of Commissioner of Income Tax (Appeals) and dismiss the grounds of appeal raised by the Revenue.
-
2017 (12) TMI 1825 - BOMBAY HIGH COURT
Share Holding Agreement entered into between the parties - dispute is predominantly of a civil nature or not - Whether the dispute between the parties is of predominantly civil nature which is tried to be converted to the criminal nature so as to recover the amount which respondent No.3 is claiming as due from the applicant Ramesh Shah?
HELD THAT:- The matter entirely pertains to civil jurisdiction and not even prima facie case is made out in the complaint for the offence punishable under Sections 418, 420,465, 467, 468, 471, 477(a), 506(2) read with 120(b) of the Indian Penal Code. In our opinion, even if the allegations contained in the complaint are taken to be true on their face value, complaint gives a clear impression that it is primarily a case where respondent No.3 is alleging breach of the terms and conditions of the Share Holding Agreement executed between the parties on the ground that the applicant Ramesh Shah is not acting in accordance therewith and not making the payments as demanded by respondent No.3.
Here in the case, it is nowhere alleged in the complaint, even for the sake of it, that since beginning the applicant Ramesh Shah had dishonest or fraudulent intention of cheating the respondent No.3. Conversely, both the parties are having their respective rival contentions for not fulfilling the terms of the Share Holding Agreement. Hence, it is apparent that the grievance is against subsequent non-fulfillment of terms and conditions of the Agreement and not of applicant Ramesh Shah having such intention of cheating since beginning - A clear finding is arrived at, about the allegations made in the complaint, by the Company Law Board totally ruling out mismanagement of the affairs of the company or any fraudulent intention. It was also held that there was no mismanagement and siphoning of funds. The allegations of illegal alteration of share holding and denial of information to the complainant were also negated.
In the case of State of Maharashtra and ors -vs- Arun Gulab Gawali, [2010 (8) TMI 1150 - SUPREME COURT], relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of Haryana -vs- Bhajanlal [1990 (11) TMI 386 - SUPREME COURT]. Applying those very parameters, here in the case it is found that allowing prosecution to continue when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law as the complaint is filed to recover only funds from applicant Ramesh Shah for which respondent No.3 has already filed civil suit.
Application allowed.
-
2017 (12) TMI 1824 - DELHI DISTRICT COURT
Money Laundering - allegations of irregularities and bribery - attachment of the properties, being the proceeds of crime - HELD THAT:- There is a schedule attached to the Act. It contains a list of various enactments and the offences created thereunder, which are to be treated as scheduled offences. Prevention of Corruption Act, 1988 is one of the Acts mentioned in the schedule. Section 7 of this Act pertains to public servant taking gratification other than legal remuneration in respect of an official act and Section 13 relates to criminal misconduct by a public servant. Both of these offences are thus scheduled offences as per Section 2(1)(y) of the Act - “proceeds of crime” is a property derived by any person as a result of criminal activity relating to a scheduled offence. Anyone who directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime, including its concealment, possession, acquisition or use and projecting or claiming it as untainted property commits the offence of moneylaundering. Thus, for commission of an offence of moneylaundering, there should be a scheduled offence and out of that offence, the accused must have derived or obtained proceeds of crime and having obtained such proceeds, must have projected or claimed it as untainted.
Thus, “Proceeds of crime” is the essence and an indispensable element of the offence of moneylaundering. It is the core constituent of the offence. Without the existence of proceeds of crime, there cannot be any commission of an offence of moneylaundering. It is only when “proceeds of crime” is projected or attempted to be projected as untainted property, the offence of money laundering arises.
In nutshell, the existence of a scheduled offence and emergence of “proceeds of crime” therefrom, is sine qua non for the existence of the offence of moneylaundering.
It is the case of the prosecution that subsequently on the registration of criminal case by CBI and arrest of Sh. A. Raja, this amount was returned and this was done by executing several expost documents to project this amount as untainted, that is, regular commercial transactions. Hence, this amount of ₹ 200 crore was derived from a criminal activity relating to a scheduled offence and, as such, constituted “proceeds of crime” and these “proceeds of crime” were projected, both during transfer from Dynamix Realty to Kalaignar TV (P) Limited and vice versa, as genuine business transactions and these acts constituted an offence of moneylaundering by all the accused involved in the case - in the present case, the alleged “proceeds of crime” were generated for the favours allegedly shown by Sh. A. Raja to STPL in the matter of grant of thirteen UAS licences. Thus, the entire case hinges upon “proceeds of crime” of ₹ 200 crore, which were generated when DB Group paid an illegal gratification of ₹ 200 crore to Sh. A. Raja, which was parked in Kalaignar TV (P) Limited.
Since there are no “proceeds of crime”, there is no need to discuss other issues based on evidence led by the parties, as that would amount to an exercise, not only in speculation but also in futility, as the very basic fact required for constitution of an offence of moneylaundering, that is, “proceeds of crime”, is knocked out - all accused are entitled to be acquitted and are acquitted.
Application disposed off.
-
2017 (12) TMI 1823 - MADRAS HIGH COURT
Criminal misconduct of the officials of State Bank of India for undue waiver of interest - accused failed to pay dues to Government of India - non-payment of percentage of net sale proceeds to Tamil Nadu Small Industries Development Corporation as per NOC - HELD THAT:- This court finds that the subject property was put to e-auction for the first time on 17.02.2011 fixing reserve price as ₹ 209.54 crores. The second and third auction date was fixed on 09.03.2011 and 04.01.2012 with same reserve price. Thereafter paper publication effected for auction on 05.10.2012, 05.11.2012 and 23.01.2013 with revised reserve price of ₹ 250/- crores. Meanwhile M/s. RMZ properties, Bangalore has offered ₹ 298/- crores for this property but sale not confirmed in its favour but sold to 5th Accused Company through private negotiation for ₹ 272 Crores. Whether such deal was outcome of any criminal design between the Bank Officials and the buyer is now under investigation. No doubt the FIR contains certain wrong information about the character of HTL and the quantum of alleged loss. As stated in the counter, a prime property in the heart of the City had been sold through private negotiation far below the guidelines value.
Unless the investigation gets completed this court cannot jump to a conclusion that the petitioners are innocent bonafide purchaser and not privy to the alleged crime - Petition dismissed.
-
2017 (12) TMI 1822 - ITAT COCHIN
Deduction u/s 43B - agricultural income tax paid by the assessee during the assessment years concerned - AO held that section 43B(a) will not have application since agricultural income tax is not a tax “otherwise allowable” under the Income-tax Act - HELD THAT:- Admittedly, the agricultural income is exempt from Central Income tax by virtue of provisions of section 10(1) of the Income-tax Act. When agricultural income itself is exempt from the purview of Central Income tax, there is no reason why a payment made out of agricultural income (already exempt) should be allowed as a deduction in computing the business income under the Central Income-tax Act. Section 43B states that “a deduction otherwise allowable under this Act” shall alone be allowed as a deduction u/s 43B(a). Since the agricultural income tax is not tax “otherwise allowable” under the Income-tax Act, payment of agricultural income tax in the respective assessment years on payment basis cannot be allowed as a deduction u/s 43B(a).
DR as well as the AR was unable to enlighten us what has happened subsequent to the remand by the Tribunal in assessee’s own case in assessment years 1997-98, 1998-99 and 1999-2000. For our reasoning in aforesaid paragraph we hold that the agricultural income being exempt from taxation under the Central Income-tax, the agricultural income tax paid by the assessee cannot be allowed as a deduction under the Central Incometax. Therefore, the order of the CIT(A) on this issue is reversed.
........
|
