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Showing 61 to 80 of 2028 Records
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2018 (10) TMI 1972 - GUJARAT HIGH COURT
Dishonor of Cheque - insufficient of funds - Seeking production of additional evidence - typographical error or not - Sections 391 and 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- This Court notices that from the beginning the case of the original complainant in the complaint lodged under Section 138 of the NI Act is of his having lent a sum of Rs.20/- lakh to the applicant-accused. It is also his demand in the demand notice, which is a mandatory requirement prior to filing of the complaint under Section 138 of the NI Act, that the amount of Rs.20/- lakh was lent to the applicant-accused, which has not been returned and when the cheque was given and the same was deposited, it was dishonored for want of sufficient funds. The demand notice was replied by the applicant on 25.04.2014, wherein, he has allegedly stated that the amount lent was Rs.40/- lakh.
It is required to make a mention, at this stage, that the complainant-opponent No.1 in his deposition has once again stated that the amount lent was Rs.20/- lakh. It is also necessary to refer to the cross-examination of the complainant, where, he has stated that the amount was lent in the year 2012. It is the categorical case of the applicant-accused that there is categorical return of the amount by him by way of cheque and the said sum of Rs.4.09/- lakh (rounded off) with contemporaneous documents has been held by the trial Court to have been proved - The trial Court simply record the said application and vide Exhibit-43, the closure pursis of the applicant-accused is accepted, stating that he did not want to adduce any further evidence either in writing or orally.
This Court notices that the respondent-accused, of course, had an opportunity to get the said documents exhibited - Matter remanded back to the trial Court concerned, which shall complete this process within a period of EIGHT WEEKS from the date of receipt of a copy of this order and once such a procedure is over, it shall send back the entire record to this Court to proceed further with the main appeal - application allowed.
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2018 (10) TMI 1971 - ITAT SURAT
Disallowance of deduction claimed u/s. 80P(2)(a)(i) - cooperative society engaged in the business of providing credit facilities to its members which earns interest income on the surplus funds parked with the nationalized banks - HELD THAT:- As in ITAT, Ahmedabad [2018 (8) TMI 2098 - ITAT AHMEDABAD] on the similar facts and circumstances has restored the issue to the file of the A.O by following decision of State Bank of India Co-operative Society [2016 (7) TMI 516 - GUJARAT HIGH COURT] wherein it has been held that cooperative society engaged in the business of providing credit facilities to its members which earns interest income on the surplus funds parked with the nationalized banks, is not eligible for deduction/s. 80P(2)(a)(i) - Therefore, we hold that the orders of the authorities below in denying deduction u/s. 80P(2)(a)(i)of the Act is quite correct and in accordance with the ratio of decision of Hon'ble High Court and there is no reason before us to interfere with the same and thus, we confirm the same.
We find it justified and necessary to observe that any expenditure incurred by the assessee for earning such income, which has not been claimed and allowed, could be allowed to the assessee meaning thereby the AO has to determine the net interest income as well as net miscellaneous income earned by the assessee and only thereafter that net income has to be excluded from the claim of deduction u/s. 80P - direct the AO to examine and recalculate the correct amount of disallowance as per directions noted herein above. The issue is restored to the file of the A.O for limited purposes.
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2018 (10) TMI 1970 - ITAT DELHI
Unexplained cash deposited in the bank accounts - survey u/s 133A - Accommodation transactions - HELD THAT:- As there is no infirmity in the order of the learned Commissioner appeals in holding that assessee is part of that group and no income shall be chargeable to tax in the hands of the assessee on account of accommodation entries.
However it is important to note that whatever gross turnover as determined in the case of the assessee is also to be verified whether the identical amount has been considered in the hands of Mr. Sanjay Kumar Garg or not for determining commission income in his hands.
There is a vast difference in the deposits shown by the assessee deposited in his account as well as gross receipts on which commission is taxed in the hands of Sanjaykuar Garg. Furthermore it was not found that what is the amount of gross receipts for computing commission income in the hands of Mr. Sanjay Kumar for assessment year 2004 – 05 as there is no information available in the order of the coordinate bench, Whereas in the hands of assessee the total gross receipt was shown at 13,48,58,000/-.
Therefore, we set aside this issue back to the file of the learned assessing officer to verify the amount of gross receipts deposited in the bank account of the assessee , with the amount shown in the hands of Mr. Sanjay, Garg as amount deposited in Suraj enterprise. If the amount deposited is reconciled, with the amount of deposited in the hands of Mr. Sanjay Kumar Garg for the respective years then no addition is required to be made in the hands of the assessee. In case if it is found that the amount deposited in the bank account of the assessee is much more than the amount shown by Mr. Sanjay Kumar Garg as amount deposited in bank account of M/s Suraj enterprise for working out his commission income, then it is apparent that no addition is made in the hands of Mr. Sanjay Kumar Garg on that gross receipts. Therefore to that extent the learned assessing officer is directed to make an addition in the hands of the assessee on substantive basis. However at the time of making the addition the learned AO will only take the amount of commission at the rate of 0.2% net commission as held in the case of Mr. Sanjay Kumar Garg by the coordinate bench. Accordingly, the issue with respect to deposit of cash in the bank account of M/s Suraj enterprises of the proprietor concern of the assessee is decided accordingly.
Assessee has shown the sales as evidence from the sales tax order - Commissioner appeals relying on the order of the coordinate bench in case of Sanjay Kumar Garg [2011 (1) TMI 689 - ITAT, DELHI] has held that nothing is chargeable to tax in the hands of the assessee as coordinate bench has held that the amount of commission on the turnover, which is a fictitious turnover shown by the assessee, is chargeable to tax in the hands of Mr. Sanjay Kumar and not assessee. On reading of the order of the coordinate bench, we do not find any infirmity in the order of the learned Commissioner appeals in holding so. However, it is important to note that that the amount of gross turnover shown in the hands of the assessee should have been included while working out the commission income in the hands of Mr. Sanjay garg. As These facts has not been verified by the learned Commissioner appeals while deciding the issue, Therefore, we also set aside this issue back to the file of the learned assessing officer to determine if the gross turnover shown by the assessee has already been taken in the hands of Mr. Sanjay Kumar Garg for working out the commission income in his hands, than no addition in the hands of the assessee is required to be made. If that is not the case, then the addition may be made in the hands of the assessee at the rate of 0.2% on the balance sum as held in the case of Mr. Sanjay Kumar Garg as commission income.
Penalty u/s 271 (1) (C) - Penalty u/s 271(1)(c) Of the act cannot be levied so far of the addition remains on protective basis in the hands of the assessee. Further more as the issue with respect to the addition has been set aside to the file of the learned assessing officer for verification of whether the amount which has been considered in the hands of the assessee as deposited in various bank accounts or shown as sales has been considered in the hands of Mr. Sanjay, for working out commission income in his hands, we also set aside the issue of the penalty to the file of the learned assessing officer with a direction that if he finds that any amount which has been credited in the bank account of the assessee or shown as sales income of the assessee, but has not been considered in the hands of Mr. Sanjaykumar Garg , the then on that sum, the amount of profit at the rate of 0.2% shall be determined as income of the assessee and to that extent the penalty under section 271 (1) (c) of the act shall be levied by the learned assessing officer after granting assessee proper opportunity of hearing.
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2018 (10) TMI 1969 - ITAT KOLKATA
Bogus long term capital gain - Addition based on “circumstantial evidence” and “human probabilities”- addition of the entire sale proceeds of the shares as income and rejected the claim of exemption made u/s 10(38) - evidence produced by the assessee in support of the genuineness of the transaction was rejected - HELD THAT:- The overwhelming evidence filed by the assessee remains unchallenged and uncontroverted. The entire conclusions drawn by the revenue authorities, are based on a common report of the Director of Investigation, Kolkata, which was general in nature and not specific to any assessee. The assessee was not confronted with any statement or material alleged to be the basis of the report of the Investigation Wing of the department and which were the basis on which conclusion were drawn against the assessee. Copy of the report was also not given.
Under the circumstances, in a number of cases this bench of the Tribunal has consistently held that decision in all such cases should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. Appeal of assessee allowed.
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2018 (10) TMI 1968 - BOMBAY HIGH COURT
Specific performance of the contract between the parties - Section 34 of the Arbitration and Conciliation Act, 1996 - Whether the Claimant was ready and willing to perform its obligations under the contract? - HELD THAT:- After examining the statutory provisions, the majority view of the Arbitral Tribunal referred to several Judicial Precedents including the Judgments of the Privy Council as well as that of the Supreme Court. After setting out the Judicial Pronouncements, the majority view of the Arbitral Tribunal referred to the pleadings between parties as well as the rival submissions and thereafter considered this issue on merits. After applying the statutory provisions and the legal principles that have been set out in Judicial Pronouncements, the majority view of the Arbitral Tribunal held that on the facts and circumstances of the present case, time was never made the essence of the contract. It held that it is settled law that in case of transfer of immovable property, normally time is not the essence of the contract and the present case was not an exception to this general rule.
The majority view of the Arbitral Tribunal has given a specific finding that the so called meeting that was held on 24th November, 2004 fixing a deadline of 20th December, 2004 for completion of the transaction by the Claimant was not acceptable. The majority view of the Arbitral Tribunal has given a categorical finding that the earlier meeting held on 10th November, 2004 and the so called gist of the discussions prepared on 26th November, 2004 on the basis of the meeting dated 24th November, 2004, was not proved by the Respondents. The majority view of the Arbitral Tribunal noted that in fact the case of the Claimant was that on 24th November, 2004 no date of completion of the transaction was ever agreed or fixed. This being so, coupled with the fact that the Respondents were unable to prove that any such deadline was agreed to in the meeting on 24th November, 2004, they could not be allowed to proceed on the basis that the completion date of the transaction was fixed on 20th December, 2004 - Taking all this material into consideration, the majority view of the Arbitral Tribunal finally held that time was never made the essence of the contract.
There are no merits in either of the appeals. They are, accordingly dismissed.
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2018 (10) TMI 1967 - ITAT MUMBAI
Disallowance of Employee Benefit Expenses - Allowable business expenditure u/s 37(1) or not? - HELD THAT:- The nature of receipts in the hands of holding company was not relevant factor to determine the true nature of payment in the hands of the assessee payer. The same is akin to a situation where the assessee acquires certain moveable properties for the benefit of its employees as a means of retaining them or rewarding them, which is clearly allowable to the assessee as business expenditure u/s 37(1). The moveable property, in the instant case, happens to be Equity Shares of the assessee’s holding company which has led the lower authorities to treat the same as expenditure in the capital field. However, the same, in our opinion was an erroneous approach and therefore, could not be sustained. - See NOVO NORDISK INDIA PVT LTD [2013 (11) TMI 218 - ITAT BANGALORE] - Decided in favour of assessee.
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2018 (10) TMI 1966 - MADRAS HIGH COURT
Levy of Urban Land Tax - lands owned by the petitioner-Temple - HELD THAT:- The respondents are not justified in insisting the petitioner-Temple to pay disputed tax, without considering and disposing the representation of the petitioner dated 09.02.2005, seeking exemption from payment of such tax - Perusal of the representation dated 09.02.2005 would disclose that the same was acknowledged by the office of the first respondent on 10.02.2005, evidently from the affixture of seal and signature of some official at the office of the first respondent.
Therefore, this Court is of the view that the said representation made by the first respondent has to be considered and appropriate orders shall be passed without loss of further time. In any event as the said representation is said to be not available in the file of the first respondent, the petitioner is directed to furnish one more copy of the same to the first respondent along with the order passed in this writ petition.
The petitioner shall furnish a copy of the representation dated 09.02.2005 along with the order passed in this writ petition within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2018 (10) TMI 1965 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Necessity of recording satisfaction - As argued AO has not recorded any satisfaction with regard to the correctness of claim of assessee - HELD THAT:- AO has neither recorded dissatisfaction about the correctness of claim of assessee nor proved nexus of expenditure between other expenses and exempt income. Therefore, considering the decision of Hon’ble Apex Court in Godrej & Boyce Mfg. Co. Ltd. [2017 (5) TMI 403 - SUPREME COURT] and Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT], we do not find any justification in making disallowance of expenses which has no nexus with the exempt income. Hence, Ground of the appeal is allowed.
MAT computation of book profit u/s 115JB for disallowance of section 14A - HELD THAT:- We have noted that the Assessing Officer while passing the assessment order increased the book profit under section 115JB of the Act by the disallowance of section 14A. CIT(A) confirmed the action of Assessing Officer despite referring the decision of Special Bench in ACIT vs. Vireet Investment Pvt. Ltd [2017 (6) TMI 1124 - ITAT DELHI]. Considering the fact that we have already deleted the disallowance under section 14A. Hence, the raising of profit under section 115JB would automatically become infructuous.
Charging interest u/s 234C - Assessee submits that charging of interest under section 234C on the returned total income and not on assessed total income - HELD THAT:- The perusal of section 234C shows that levy of interest under section 234C is on the return income and not on the total assessed income, therefore, we direct the Assessing Officer to levy and compute interest on return income under section 234C of the Act. We direct accordingly. Thus, Ground of appeal is allowed.
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2018 (10) TMI 1964 - DELHI HIGH COURT
Compounding of offences punishable u/s 276B r.w.s.278B - admitted default in deposit of TDS - lapse of over 12 to 17 months - Proof of mens rea to deprive the State or to withhold public monies for private good - petitioner retained and misappropriated the monies for that period and illegally enjoyed the benefits therefrom - petitioner submits that upon the petitioner realising its mistake, on its own it paid all the monies into the Treasury - HELD THAT:- Court is not persuaded by the petitioner‟s arguments, because the monies belong to the Government, and the petitioner could not have held on it because it knew fully well of the imperative to deposit it as per statutory requirements. Instead, it misused the government monies for its private benefits. If it had discovered that it had to pay the monies after 6 months or 8 months or 12 months or 17 months or whenever the “so-called” realization dawned upon it, it should have explained the same to the Income Tax Department, prior to the issuance of the show-cause notice.
It is only upon the petitioner‟s taking such action, its plea of bona fides may have been considered. There could be no bona fides when a petitioner is issued a show-cause notice after 4 or 5 years of such default. The Court would note that the monies were due in the Government Treasury in the year 2009, which was offered in the year 2011 or so.
Income Tax Department noticed the anomaly in the refund of monies much later. If the petitioner raises the plea of financial inability as a constraint for not paying the collected TDS earlier on account of bankruptcy of his importers, then the submission implies that it surely was aware of its statutory liability to deposit the TDS with the Income Tax Department. The argument of absence of mens rea is untenable, in view of the conflicting pleas of inadvertent lapse and simultaneous financial hardship. Hence, a show-cause notice was issued on 28.07.2014. It was open to the petitioner to have intimated the Income Tax Authorities about his alleged lapse and the difficulties in recovering such monies from his importers, who had become bankrupt.
Be that as it may, the bankruptcy of a foreign company has nothing to do with the TDS in India - the Court finds no infirmity in the aforesaid reasoning. There is no merit in the petitions. Accordingly, the petitions, alongwith pending applications, stand dismissed.
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2018 (10) TMI 1963 - MADHYA PRADESH HIGH COURT
Right for consideration of compassionate appointment - vested right or not - consideration of case of compassionate appointment pursuant to death of deceased employee - whether policy prevailing at the time of death of employee or the policy prevailing at the time of application for compassionate appointment would be applicable?
HELD THAT:- In order to consider the issue that whether the right for consideration of compassionate appointment is a 'vested right' it is apposite to refer the various judgments of the apex Court. In the case of Umesh Kumar Nagpa v. State of Haryana and others [1994 (5) TMI 279 - SUPREME COURT], Steel Authority of India Ltd. v. Madhusudan Das [2008 (10) TMI 724 - SUPREME COURT], Union of India and another v. B. Kishan [2011 (4) TMI 1540 - SUPREME COURT], State of Haryana v. Naresh Kumar Bali [1994 (5) TMI 272 - SUPREME COURT], SBI and others v. Jaspal Kaur [2007 (2) TMI 581 - SUPREME COURT] and State Bank of India and another v. Raj Kumar [2010 (2) TMI 1311 - SUPREME COURT] the apex Court has been pleased to held that the consideration for appointment of compassionate ground is contrary to the Articles 14 and 16 of the Constitution of India and it is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian ground. Such appointment should, therefore, be provided immediately to redeem the family in distress.
The Apex Court in the case of State Bank of India and another v. Raj Kumar [2010 (2) TMI 1311 - SUPREME COURT] had an occasion to discuss the object of the compassionate appointment scheme and clarified the judgment in the case of Jaspal Kaur [2007 (2) TMI 581 - SUPREME COURT]. It was held that the appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn.
The mere fact that an application was made when the scheme was in force will not by itself create a right in favour of the applicant. It was further held that there is no vested right for compassionate appointment and therefore, the policy enforce at the time of consideration of application would apply and not the scheme enforce earlier to the said scheme.
The reference is answered that compassionate appointment cannot be claimed as a matter of right as it is not a vested right and the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable.
The matter be placed before the appropriate Bench for orders as per roster.
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2018 (10) TMI 1962 - ITAT MUMBAI
Disallowance u/s. 14A r.w.s. Rule 8D - CIT-A deleted the addition - HELD THAT:- Disallowance was deleted for the reason that the assessee has its own funds far exceeding the investments. The Ld.CIT(A) followed the decision of the Hon'ble Jurisdictional High Court in the case of CIT v. Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT], CIT v. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] and HDFC Bank Ltd [2016 (3) TMI 755 - BOMBAY HIGH COURT]- Thus, we do not find any infirmity in the order passed by the Ld.CIT(A). This ground is rejected.
Addition of Employee Stock Option Scheme [ESOP] expenses - revenue or capital expenditure - AO disallowed the ESOP expenses treating them as capital expenditure - As per CIT-A there are allowable as Revenue expenses u/s. 37 - HELD THAT:- CIT(A) following the decision of the Hon'ble Jurisdictional Tribunal in the case of DCIT v. Accenture Services (P.) Ltd [2010 (3) TMI 1107 - ITAT MUMBAI] and the Bangalore Bench of the Tribunal in the case of M/s. Novo Nordisk India (P.) Ltd. [2013 (11) TMI 218 - ITAT BANGALORE] and also the decision in the case of CIT v. Lemon Trees Hotel Pvt. Ltd. [2015 (11) TMI 404 - DELHI HIGH COURT] held that the ESOP expenses are Revenue expenses and therefore reimbursement of ESOP expenses by the assessee was deleted . We do not find any infirmity in the order passed by the Ld.CIT(A), hence the same is sustained. - Decided against revenue.
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2018 (10) TMI 1961 - ITAT KOLKATA
Disallowing the taxpayer’s commission payments made to foreign export agents - non deduction of TDS u/s 40(a)(i) - HELD THAT:- There is no dispute so far as the basic facts pertaining to the instant issue are concerned. The assessee has made commission payments to overseas agents in lieu of procuring export orders for outside markets. There is no material in case file which could suggest either of these to have received any service in details. It is in this backdrop of facts that CIT(A) has held the said overseas commission agents not to have rendered any service in India giving rise to taxability of their commission income in India.
Hon'ble apex court’s decision in G.E. India Technology Centre Pvt. Ltd. [2010 (9) TMI 7 - SUPREME COURT] has settled the law that TDS deduction comes into play only if the corresponding income is taxable in the recipients’ hands in India. Assessee’s payees / agents neither have any permanent establishment in India u/s 9(1)(i) nor they have any commission activity performed in India so as to be exigible to assessment in India. We therefore uphold CIT(A)'s detailed findings extracted hereinabove based on correct appreciation of facts in light of various judicial precedents to conclude that he has rightly deleted the impugned foreign agents commission disallowance made in the course of assessment. The Revenue fails in its first substantive ground.
Disallowance u/s 14A r.w.r 8D - HELD THAT:- It has come on record that Revenue’s only endeavour is to revive proportionate interest expenditure disallowance only. It fails to rebut the CIT(A)’s clinching findings that the instant taxpayer had sufficient interest free funds and also that the issue has attained finality in preceding assessment year. We therefore reject Revenue’s second substantive ground as well by adopting judicial consistency.
TDS u/s 194C - Transportation Expenses – Addition u/s 40a(ia) - Revenue’s only argument during the course of hearing is that although assessee had complied with the relevant conditions u/s 194(6) of obtaining the necessary declaration alongwith PAN No. of the payees, it has failed to satisfy all the necessary condition enshrined in sec. 194(7) - HELD THAT:- We find no merit in the instant argument since the CIT(A) has considered a catena of case law vis-àvis sec. 194(6) of the Act to conclude that assessee’s liability to deduct TDS arises at the time of payments as against that envisaged in sec. 194C(7) of the Act. This tribunal’s decision in Soma Rani Ghosh vs. DCIT [2016 (10) TMI 55 - ITAT KOLKATA] also reiterates the very principle. We therefore uphold the CIT(A)’s findings deleting the impugned disallowance qua the instant issue as well.
Disallowing / adding assessee’s employees contribution to PF & ESI - HELD THAT:- Hon'ble jurisdictional high court’s decision in CIT vs. Vijay Shree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] holds that the impugned disallowance is not sustainable in case the assessee deposits the impugned contribution the same before the due date filing its return. There is no exception pointed out to this legal position during the course of hearing. We decline Revenue’s instant last substantive ground as well. Revenue’s appeal is dismissed.
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2018 (10) TMI 1960 - ITAT LUCKNOW
Late fees u/s 234E read with section 200A - Whether effect of charging late fee u/s. 234E came into existence w.e.f. 01.06.2015? - HELD THAT:- As on perusal of section 234E read with 200A clause (c) of the Act, we find that it specifies that fee, if any, shall be computed in accordance with the provisions of section 234E and this was effective from 1/6/2015; meaning thereby any levy of late fees u/s 234E read with section 200A of the Act can be imposed only from 1/6/2015 onwards.
In the instant case of the assessee, for all three quarters i.e. quarter 1, quarter 3 and quarter 4 for assessment year 2015-16, it pertains to financial year 2014-15 i.e. before the provision for charging late fee is coming into effect. Therefore, so far as assessee’s case is concerned, since it is prior to 1/6/2015, there is no question for imposition of late fees under section 234E read with section 200A - We, therefore, set aside the order of ld. CIT(A) and delete late fees levied on the assessee for each of the quarter as mentioned hereinabove for assessment year 2015-16. Appeal of assessee allowed.
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2018 (10) TMI 1959 - BOMBAY HIGH COURT
Principles of Natural Justice - enhancing of value of imported goods from that declared in the bills of entry - grievance of the petitioner is that the impugned order dated 20th August, 2018 has been passed without having followed the principles of natural justice i.e. as in the absence of issuing any show cause notice or granting any hearing to the petitioners - violation of principles of natural justice - HELD THAT:- The revenue very fairly concedes that the impugned order dated 20th August, 2018 is not sustainable in law as the principles of natural justice have to be followed while finalising a provisional assessed bills of entry as in this case. In fact it has been so held by this Court in ZUARI AGRO CHEMICALS LIMITED VERSUS UNION OF INDIA AND OTHERS [2014 (2) TMI 552 - BOMBAY HIGH COURT], M/S. TITANIUM TEN ENTERPRISE PRIVATE LTD. VERSUS UNION OF INDIA, MEMBER (CUSTOMS) , CENTRAL BOARD OF EXCISE & CUSTOMS, COMMISSIONER OF CUSTOMS (IMPORTS) , JNCH, THE DEPUTY COMMISSIONER OF CUSTOMS IMPORTS [2017 (11) TMI 259 - BOMBAY HIGH COURT], BALAJI IMPEX VERSUS UNION OF INDIA & OTHERS [2011 (7) TMI 291 - BOMBAY HIGH COURT].
The impugned order dated 20th August, 2018 is quashed and set aside. The respondents would finalise the three bills of entry, two of them dated 9th February, 2018 and one dated 9th March, 2018, which are the subject matter of this petition after following the principles of natural justice i.e. issuing a show cause notice, hearing the petitioner and passing a speaking order - Petition disposed off.
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2018 (10) TMI 1958 - KERALA HIGH COURT
Liability to pay sales tax under the Kerala Value Added Tax Act, 2003 - only reason to deny the benefit of CST concession is that corresponding notification has not been issued - HELD THAT:- In the present case, the 3rd respondent alone has filed a counter affidavit. Government in either of the departments did not file any counter affidavit. Therefore it has to be presumed that the contentions advanced by petitioners are admitted. Ext.P9 policy was formulated and published in the year 2008, much after the Finance Act was enacted. As the policy is not so far withdrawn, it can be concluded that the benefits ordered therein are liable to be granted.
The proclamation of Ext.P9 policy decision in 2008, specifically intended for the Special Economic Zone, is not disputed; it is not modified or withdrawn so far, as evident from Ext.P12 letter as well as the counter affidavit. The reason for denying the benefit conferred/declared in clause 6 of Ext.P9 policy, is the absence of a corresponding notification incorporating the same, by Government - The judgment of the apex court in LLOYD ELECTRIC AND ENGINEERING LIMITED VERSUS STATE OF HIMACHAL PRADESH AND OTHERS [2015 (9) TMI 370 - SUPREME COURT] is in respect of an issue which is more or less similar to the issue arising in this case, where it was held that the Government cannot speak in two voices and that Government Departments are bound to implement Government policy.
Even though the learned Government Pleader argued that the remedy of the petitioners is not under Article 226 of the Constitution of India, when the orders of assessment are already issued the said contention cannot be accepted as none of the statutory authorities can consider the claim of the petitioners against the Government to implement the policy.
It is declared that the petitioners would be entitled to the benefit of exemption declared in Ext.P9 policy, as provided in Clause 6 thereof - Petition disposed off.
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2018 (10) TMI 1957 - ITAT PUNE
Disallowance u/s 14A r.w.r. 8D - nexus between interest expenditure and exempt income earned i.e. share of profit from partnership firms, and the investments in partnership firms are made out of own capital - case of the assessee was that no disallowance was to be made on account of interest expenditure as the amount was invested in partnership firms, not for earning share of profits which in any case was earned irrespective of the investment made - HELD THAT:- Rule of Consistency is not applicable to the Income Tax Proceedings, but consistent approach should be adopted if facts remain same. In any case factual aspects of the other years are not available except that no such disallowances u/s.14A had been made in the other years. However, in the year under consideration, AO applied provisions of section 14A and disallowed the total interest charged on the debit balance of the capital accounts. In this regard, another aspect is the total interest free funds available as per Balance Sheet were 11.62 Crore and tax free investments and plea of the assessee was that no disallowance is called for in view of the ratio laid down in the case of HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] Applying the said principle, no disallowance is to be made under section 14A - Accordingly, ground of appeal No.1 raised by the assessee is allowed.
Disallowance u/s 57(iii) - AO observed two things i.e. rate of interest on which loan was taken, was higher i.e. @ 22.8% and on advance; interest was charged by assessee @18% - in more cases, 10 out of 17 cases of borrowed loan assessee had paid interest - HELD THAT:- Assessee had charged interest on advances in 4 cases out of 18 cases. The Assessing Officer disallowed excess claim of Rs.2,00,000/- out of total interest of Rs.38,56,312/- claimed u/s.57(iii) of the Act. It was clarified by Ld. AR for the assessee that the interest paid by assessee was to the tune of Rs. Rs.45,30,821/- which was restricted to Rs.38,56,312/-; hence , there is no merit in the so-called disallowance of Rs.2,00,000/-. Since the actual claim of the assessee has been restricted, no other disallowance is, thus, warranted. Accordingly, addition of Rs.2,00,000/- is, thus, deleted. Thus, ground of appeal No. 2 raised is allowed.
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2018 (10) TMI 1956 - SUPREME COURT
Inter se seniority dispute between three streams of Punjab Superior Judicial Service - officers promoted on the basis of merit-cum-seniority under 50% quota (promotees) - direct recruits under 25% quota (direct recruits) - officers promoted on the basis of limited departmental competitive examination under 25% quota (as it then existed) (out of turn promotees) - HELD THAT:- The seniority list dated 24.12.2015 is to be set aside. After setting aside the seniority list, two courses are open. Firstly, to remit this matter to the High Court again to re-cast the seniority list as per our direction and secondly, to finalize seniority list in this judgment itself. We choose to adopt the second course for two reasons:
a) Already period of three years has elapsed when the tentative seniority list was published. Finalisation of seniority as early as possible is essential and necessary for administration of justice.
b) There is no dispute regarding inter-se-seniority of the promotees Under Rule 7(3)(a) and issue pertaining to inter-se-seniority of out of turn promotees and direct recruits have already been finalized by us. Only exercise which is to be undertaken is to place officers of three streams in accordance with the roster as indicated in Appendix-B.
All appeals are allowed in following manner:
1) The Division Bench judgment of the High Court so far as it holds that roster is applicable in the determination of seniority of members of superior judicial service is upheld.
2) The judgment of the Division bench of the High Court holding that fifteen promotees Under Rule 7(3)(a) were beyond the quota and shall take position at the bottom of the seniority list is set aside.
3) The seniority list dated 24.12.2014 is set aside. The list of 35 officers arranged as per Roster as indicated above shall be treated as final Seniority list of the officers recruited in the year 2008.
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2018 (10) TMI 1955 - GUJARAT HIGH COURT
TDS u/s 195 - Disallowance u/s. 40(a)(ia) for non deduction of tax on commission payable to foreign agents - HELD THAT:- As relying on [2018 (10) TMI 615 - GUJARAT HIGH COURT] Section 9 of the Act carries the heading “income deemed to accrue or arise in India. Sub-section (1) of section 9 provides that in following incomes, contained in various clauses therein, shall be deemed to accrue or arise in India. Clause (i) of sub section (1) provides that all income accruing or arising, whether directly or indirectly, through or from any business connection in India or through or from any property in India or through or from any asset or source of Income in India or through the transfer of a capital asset situate in India shall be deemed to accrue or arise in India.
In the present case, as noted, admitted facts are that the non-resident agents appointed by the assessee for procuring export orders do not have permanent establishment in India. Their agents are situated outside India. Their activities as commission agents are being carried out outside India. The Tribunal therefore correctly held that there was no liability on the assessee to deduct tax at source. Merely because a portion of the sale to the overseas purchasers took place in India, would not change situation vis a vis the commission agents.This question is therefore not entertained.
Disallowance of depreciation on no-compete fees - HELD THAT:- As observed that on perusal of the meaning of the categories of specific intangible assets referred to in section 32(1)(ii) of the Act preceding the term “business or commercial rights of similar nature” it is seen that intangible assets are not of the same kind and are clearly distinct from one another. The legislature thus did not intend to provide for depreciation only in respect of the specified intangible assets but also to other categories of intangible assets which may not be possible to exhaustively enumerate. As concluded that the assessee who had acquired commercial rights to sell products under the trade name and through the network created by the seller for sale in India were entitled to depreciation.
In the present case, Mr Patel was erstwhile partner of the assessee. The assessee had made payments to him to ward off competence and to protect its existing business. Mr. Patel, in turn, had agreed not to solicit contract or seek business from or to a person whose business relationship is with the assessee. Mr. Patel would not solicit directly or indirectly any employee of the assessee. He would not disclose any confidential information which would include the past and current plan, operation of the existing business, trade secretes customer lists etc.
It can thus be seen that the rights acquired by the assessee under the said agreement not only give enduring benefit, protected the assessee's business against competence, that too from a person who had closely worked with the assessee in the same business. The expression “or any other business or commercial rights of similar nature” used in Explanation 3 to sub-section 32(1)(ii) is wide enough to include the present situation.
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2018 (10) TMI 1954 - MADRAS HIGH COURT
Levy of penalty - offences under Section 159 r/w 162 of the Companies Act - continuing offences or not - HELD THAT:- These two sections fall under chapter XXXVI of the Code of Criminal Procedure with the heading Limitation for taking cognizance of certain offences. As per section 468 of the Code of Criminal Procedure Code, which is a non absentee clause wherein it has categorically held that no court shall take cognizance of an offence after the expiry of the period of limitation. The period of limitation shall be 6 months if the offence is punishable with fine only. In this case, the cause of action as per the complainant as could be found in the complaint would commence after issuance of show cause notice dated 30.07.2008. The complaint in all the four cases have been filed only during June 2011, which is well after three years from the date of issuance of the show cause notice hence the complaint has to be quashed.
The other contention of the petitioner is that the offences under Sections 159 and 220 are punishable under Section 162 of the Companies Act for default in filing the annual returns and Profit & Loss Account that within a stipulated time that does not render the initial default a continuing one. The offence cannot be said to be repeated or committed from day to day after the initial default. It is only where the offence is committed from day to day or repeated from day to day, then in that event only it can be called a continuing offence. The language of section 162 does not warrant any continuity as they are in sections 234, 294, 372 and 598 of the Companies Act.
The offence on the breach there of is complete with the failure to furnish the return in the manner or within the time stipulated such an offence is committed once and for all as and when one commits the default the same analogy could be drawn with regard to Section 220 of the Companies Act for failure of filing Profit and Loss Account. Further it is held that the above provisions does not contemplate that the obligation to submit such returns continues from day to day until the return is actually submitted nor does it provides that continuance of business without filing of such returns is prohibited so that non fulfillment of a continuing obligation or continuing business without filing of such returns becomes a continuing offence.
The offences complained of in these complaint are continuing offences and therefore the period of Limitation prescribed in law is not attributed. In view of the settled position of Law, the petitioners contention are not sustainable and rejected - petition dismissed.
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2018 (10) TMI 1953 - SUPREME COURT
Jurisdiction - power of High Courts to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) - HELD THAT:- The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
Appeal allowed - decided in favor of appellant.
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