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Showing 1 to 20 of 2034 Records
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2018 (3) TMI 2037
Income surrendered in search proceedings - determination of profit on undisclosed turnover - Disallowance of expenses - assessee during the search & seizure operations had surrendered an amount as business income from trading of Pan Masala - AO applied gross profit rate of 3.7% which is based upon earlier years audited accounts whereas during the year under consideration the gross profit earned by the assessee only 1.91% - D. R. stated that in unaccounted turnover the assessee also saves heavy amount on account of non payment of taxes and therefore, the application of higher gross profit rate was necessary - as per DR assessee could not produce any evidence to substantiate his claim and moreover during search proceedings he had surrendered commission income and therefore, the claim as expenses is an afterthought and rightly not allowed the claim.
HELD THAT:- Application of gross profit rate of accounted turnover cannot be applied to unaccounted turnover as the assessee generally earns more profit on the unaccounted turnover and moreover to create a deterrent for assessee not to make unaccounted transactions in future and in view of justice to both parties, we deem it appropriate that average of gross profit rate of 3.7% and 1.91% should have been applied to the unaccounted turnover.
The average gross profit rate of these two years comes out at 2.8%. Therefore, AO is directed to apply gross profit rate of 2.8% on the unaccounted turnover as calculated by CIT(A) which after relief given by learned CIT(A) comes out at Rs. 1,08,87,67,854/-. Out of the gross profit thus arrived the assessee will be allowed deduction on account of expenses to the extent of Rs. 7,73,600/- which learned CIT(A) has also given and out of such net profit the profit declared by the assessee to the tune of Rs. 2.35 crore will be reduced and remaining amount is liable to be taxed in the hands of the assessee. In view of the above ground No. 1,2,3 & 4 of the appeal of the assessee are partly allowed.
Assessee had declared a commission income and now in the return of income it claimed expenses to earn that income which has not been substantiated - CIT(A) has already allowed relief to the extent of Rs. 5,00,000/- and we do not find any infirmity in that order and in view of the inability of the assessee to explain and support the claim of expenses, we dismiss ground No. 5 & 6.
Calculation of unaccounted turnover - While calculating the undisclosed turnover the Assessing Officer has reduced an amount of Rs. 27,33,82,332/- which is not correct as learned CIT(A) has held that the turnover of the assessee as per audited account and as per VAT returns worked out to be Rs. 37,15,41,587/- Learned CIT(A) has rightly allowed relief to the assessee by replacing the incorrect accounted figure of sales with the correct figure of accounted sales and therefore, there is no infirmity in the order of CIT(A). Therefore, ground No. 1 is dismissed.
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2018 (3) TMI 2036
Royalty income - principle of mutuality - taxability of ISM contributions received by the assessee - appellant before us is a foreign company, which is a tax resident of U.S.A. - as asserted that there was a complete identity between the contributors to the MHR Fund and the participants in the surplus, i.e. excess of amounts received in the fund over the expenditure incurred for undertaking the ISM activities and ISM contributions, being reimbursement of expenses was not in the nature of income at all.
HELD THAT:- The action of the CIT(A) in directing the Assessing Officer to apply the order of the Tribunal [2015 (1) TMI 659 - ITAT MUMBAI] is justified to the extent it deals with the nature of the payments received by the assessee from the two hotels stated aforesaid. So, however, the point which is sought to be raised is the non-consideration of the defence set-up by the assessee based on the principles of mutuality.
The order of the Tribunal (supra) has not addressed that issue and so far as the instant year is concerned, the same was very much raised by the assessee before the lower authorities, which has also remained to be addressed. Considering the entirety of circumstances, we, therefore, deem it fit and proper to affirm the ultimate decision of the CIT(A) to remand the matter back to the file of Assessing Officer, but with directions that apart from considering the order of the Tribunal the Assessing Officer shall also address the issue raised by the assessee of mutuality or any other issue which the assessee may seek to raise in defence of its return of income. AO shall allow the assessee due opportunity of being heard and only thereafter pass an order afresh, as per law.
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2018 (3) TMI 2035
Seizure of goods from the godown in pursuance of a notice under Section 129 (1) of the U.P.GST Act - petitioner prays for is granted one month's to file counter affidavit - HELD THAT:- List this matter on 13.04.2018.
In the meantime, subject to deposit of security other than cash or bank guarantee or in the alternative indemnity bond, equal to the value of tax and penalty, to the satisfaction of seizing authority, the goods of the petitioner may be released forthwith.
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2018 (3) TMI 2034
Bogus purchases - addition made on account of purchases made from five parties which were declared by Sales Tax Department as suspicion suppliers - AO made the addition of the purchases on the ground that VAT authorities have treated the sales as non-genuine since these suppliers had not paid VAT on the sales effected by them - CIT(A) deleted addition - HELD THAT:- CIT(A) observed that the assessee has requested the AO to give them copies of all the materials/ information/ evidences, on the basis of which AO has formed his opinion to make disallowance of such referred purchases. No such materials were supplied to the assessee before using the same against it. CIT(A) further observed that no infirmity has been pointed out in the documents submitted by the assessee.
CIT(A) observed that assessee has produced the proof of such payment through banking channel but the AO has failed to substantiate that the assessee received it back in cash. During the year the GP was higher as compared to the last three years which clearly indicates that the current year income is not understated. As per CIT(A) if the suppliers have not paid VAT charges to the Govt. but taken the same from the purchases, such differential amounts need to be added in the hands of dealer and they are liable for any action for their defaults.
CIT(A) also stated that the assessee on its part has submitted purchase invoice, stock movement records, VAT registration number, ledger account, bank statement reflecting entries made to the said parties against the purchases from it etc., however, no fault has been found in all these documents by the AO.
Thereafter CIT(A) recorded detailed finding which has not been controverted by learned DR by bringing any positive material on record. We also found that GP rate of the assessee during the year has doubled as compared to the earlier year. Accordingly, we do not find any reason to interfere in the finding so recorded by CIT(A) resulting into deletion of addition made on account of purchases made from suspicion parties. Decided against revenue.
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2018 (3) TMI 2033
Regularization of casual employees in the Income Tax Department - appellants were appointed as casual employees in the Income Tax Department in the year 1993-94 since then they were working continuously
HELD THAT:- Decision in the State of Karnataka vs. Uma Devi [2006 (4) TMI 456 - SUPREME COURT] was pronounced by this Court, the same provided that the employees who had rendered services continuously for ten years without the cover of the court's order be regularized as the onetime measure.
The circulars and regularization of the similarly situated employees at other places and various recommendation that were made the services of the appellants ought to have been regularized in the year 2006; discriminatory treatment has been meted out to them. As per the decision of Uma Devi (supra), they were entitled to regularization of services; they did not serve under the cover of court’s order. Illegality has been committed by not directing regularization of services.
We direct that the services of the appellants be regularised w.e.f. 1st July 2006 they are entitled to consequential benefit also let the respondents comply with the order in a period of three months from today.
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2018 (3) TMI 2032
Conditions attached on granting bail in anticipation of arrest - petitioner seeking to travel to Singapore for six days - HELD THAT:- The condition with regard to not to leave India without prior permission of the court concerned and to deposit the passport with the trial court, is required to be relaxed for a period of six days. Accordingly the said condition is kept in abeyance for the said period and the petitioner shall be bound by the same terms and conditions as were prescribed in the order dated 28.08.2017 passed in Criminal Misc. Application No. 20011 of 2017.
Considering the above submissions, it is directed that the passport may be handed over to the representative advocate of Wadia Ghandy and Company, on due verification and the passport may be retained by the petitioner till 18.4.2018.
Petition allowed.
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2018 (3) TMI 2031
Additional depreciation of 10% claimed u/s. 32(1)(iia) - additions made to plant and Machinery that was put to use for less than 180 days - as submitted that the AO has no considered the fact that the assessee is a manufacturer of tea and only 40% of the income computed as per Rule 8 of the Income Tax Rules is liable for tax and therefore, the disallowances made are to be restricted to 40% - HELD THAT:- Following this tribunal order [2017 (9) TMI 2024 - ITAT CHENNAI] for assessment year 2012-13 we hold that the assessee was eligible for claiming the balance 10% depreciation in the impugned assessment orders.
AO is directed to allow such claim. The assessee’s plea that such disallowances are to be restricted to 40% in accordance with Rule 8 of the Income Tax Rules is also in accordance with provisions and accordingly, the AO is directed to restrict the disallowances to 40%. The assessee’s appeal for these two years stands allowed.
Disallowances u/s. 14A r.w.r 8D - expenditure incurred for earning dividend income - computation made under Rule 8D(2)(iii) - CIT(A) restricted the disallowances u/s. 14A r.w.r 8D to the extent of exempt income - HELD THAT:- We direct the Assessing Officer to re-compute the disallowances under Rule 8D(2)(iii) by taking the amount equal to ½ percentage of the average value of the investments which have given rise to the income which does not form part of total income. Thus, the corresponding grounds are partly allowed for statistical purposes.
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2018 (3) TMI 2030
CENVAT Credit - input services or not - Air Travel Agent Service - Catering Service - CHA service (Export) - Courier Service - Event management service - Group term insurance service - Hotel service - Rent a cab/Car service - Repair and maintenance service (car) - Tour and Travel Service - Construction service - HELD THAT:- The issue has been settled for the impugned period by the Hon’ble High Court Bombay in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein it has been held that any service availed by the assessee in the course of their business of manufacturing is entitled for cenvat credit - Admittedly, all these services have been availed by the appellant in the course of their business of manufacturing of excisable goods, therefore, the appellant is entitled to avail cenvat credit on the services in question except catering service & rent a cab service for which the matter required for examination at the end of the adjudicating authority to ascertain the fact that whether any amount towards the service has been recovered from the employees or not. If the same is recovered, in that circumstance, cenvat credit attributable to the said amount is not admissible as cenvat credit.
The matter is remanded back to the adjudicating authority to ascertain the fact whether the appellant has recovered any amount to towards catering service & rent a cab service from the employees or not - appeal disposed off by way of remand.
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2018 (3) TMI 2029
Enhancement of the value - Violated the import rules regarding Tinplate Defective/Secondary Misprinted Sheets/Uncoated Coils - HELD THAT:- From the record, it also appears that the assessing officer has rejected the transaction value without any valid reasons and without new procedure as per Section 14 and Valuation Rules especially, there is nothing on record that the appellant has imported the secondary items but the value was considered for the fresh items. No speaking order was passed for enhancement of the value. There is nothing on record to suggest that the buyers and sellers of the goods are related persons. Therefore, the enhancement of the value is likely to be struck down and rightly struck down by the Commr. (Appeals).
Hence, We do not find any reason to interfere with the impugned order and the same is hereby upheld - In the result, all the appeals filed by the Department are dismissed.
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2018 (3) TMI 2028
Refund of Education/Higher Education Cess paid by the respondents-assessee in respect of final products manufactured and cleared by them availing area based exemption under Notification No. 56/2002-CE dated 14.11.2002 - HELD THAT:- Both sides agreed that the issue pertaining to the Education/Higher Education Cess has already been decided by the Hon’ble Supreme Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT], wherein it was observed that the assessees are entitled to the refund of Education/Higher Education Cess which was paid along with excise duty, once the excise duty itself is exempted. It is made clear that except for the education cess/higher education cess, no other issue/ground is being pressed in these appeals.
By following the ratio laid down by the Hon’ble Supreme Court, there are no reason to interfere with impugned orders where the refund claims of the assessees pertaining to Education/Higher Education Cess were allowed.
All the appeals filed by the Revenue are dismissed.
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2018 (3) TMI 2027
Validity of reassessment proceedings - change of opinion - reopening made after 4 years - CIT(A) has quashed re-assessment order passed by the AO on the ground that the AO has reopened assessment merely on change of opinion without-there being any fresh material which suggests escapement of income-within the meaning of section 147(b) - HELD THAT:- We find that the AO has considered the issue of prior period expenses and prior period income in the-proceedings u/s 143(3) and after considering relevant facts has made-addition towards net prior period income after setting off of prior period-expenses.
AO has reopened assessment on the same set of facts-on the ground that while completing assessment u/s 143(3), addition has-been wrongly made in respect of prior period income instead of higher amount as prior period expenses cannot be netted off against write back of liability of prior period. The issue on which the reopening of assessment has been made has already been a subject matter of assessment u/s 143(3) and the AO has considered all relevant facts while completing assessment u/s 143(3).
Therefore, without there being any fresh material and also any allegation-on the part of the assessee to disclose fully and truly all material facts-necessary for assessment, reopening cannot be made after 4 years-when the assessment has been concluded u/s 143(3) - CIT(A) was right in quashing assessment order passed by the AO u/s 143(3) r.w.s. 147 of-the Act. We do not find any error in the order of the CIT(A); hence, we-are inclined to uphold the findings of the CIT(A) and dismiss appeal filed by the revenue.
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2018 (3) TMI 2026
Seeking Transfer of investigation of all First Information Reports lodged against the Petitioner and other members of GJM, to any independent investigation agency - HELD THAT:- The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases.
In PROF. K.V. RAJENDRAN VERSUS SUPERINTENDENT OF POLICE, CBCID SOUTH ZONE, CHENNAI & ORS. [2013 (8) TMI 1055 - SUPREME COURT], this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii) where investigation prima facie is found to be tainted/biased.
The present case is a case where the Petitioner as Leader of GJM is a spare heading an agitation against the State demanding a separate State-hood. The State is obliged to maintain law and order and to protect live and property of the citizens. It has to take necessary steps to contain such agitation and restore the peace. The cases lodged in the FIR submitted at the instance of the Police or other complainants cannot be discarded on the specious pleas that they have been lodged due to bias of the State and with the intent to persecute the Petitioner. The "State" is a political unit vested with constitutional duties and obligations. The Governor of the State formally represent the State in whom the executive Power of the State is vested and exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India. Under List II, Entry I of Seventh Schedule of the Constitution, "Public order" is a subject allocated to the State - In the present case, neither there are any pleading nor any material to come to a conclusion that State functionaries including police functionaries are biased against the Petitioner. Thus, the allegations of the bias made against the State and police functionaries had to be rejected and Petitioner cannot be permitted in saying that the FIRs lodged against him are result of a bias of the State or police personnels.
In case of faulty investigation, where an Accused has been wrongly roped in, he has right to seek all remedies before Court of Law for further investigation and a Court of Law is able to marshall all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an Accused to move a Court of Law for transfer of investigation, but on the facts of this case as noted above, this is not a fit case where this Court may exercise jurisdiction Under Article 32 to transfer the cases en masse to an independent agency. The present case cannot be said to be a case of individual's persecution by the State authority.
The Petitioner is not entitled for any relief. The writ petition is dismissed.
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2018 (3) TMI 2025
Taxability of unutilized accumulated funds under Section 11(2) of the Income-tax Act, as income under Section 11(3). - AO gave effect to the substantive order of the CIT(A) and brought to tax the amounts u/s 11(3) - assessee’s appeal to the CIT(A) was rejected primarily on the ground that it had withdrawn its previous appeal questioning the assumption u/s 263.
HELD THAT:- It is not disputed that the assessee’s appeal (appeal to the ITAT) against the order of the CIT(A) is pending before the ITAT.
Having regard to these peculiar circumstances, it is clarified that the ITAT should consider the substantive merits of the appeal with respect to the assessee’s taxability of amounts u/s 11(3) of the Act without in any manner holding adversely against it, for the withdrawal of the previous appeal (which was concerned only with the question of assumption of taxability u/s 263 of the Act.
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2018 (3) TMI 2024
Disqualification of Directors - respective Company was also struck off from the role of the Registrar of Companies.
The present grievance of the petitioners before this Court is that these petitioners even after obtaining the interim order of stay of disqualification from this Court, are not in a position to utilise the opportunity given in the said Scheme, since the very Company, in which they were holding such position, was also struck off and therefore, the DIN Number of the respective petitioners is not activated.
HELD THAT:- Considering the fact that the cases pending before this Court filed under the same set of facts and circumstances are also to be heard and decided finally, after filing of the individual counter in each cases by the respondents, this Court is of the considered view that as an interim measure, the order passed by the Division Bench of the Delhi High Court is to be applied to the present cases as well so that a uniformity will be maintained among the equals.
Since this Court has entertained several writ petitions arising out of the same set of facts and granted interim order of stay and since all those writ petitions are not listed today, the following order will cover not only these petitioners and also the other petitioners, who have filed similar writ petitions before this Court, which are pending with interim orders granted therein.
The respondents are directed to forthwith activate the DIN number of each writ petitioner in whose favour, the interim order of stay has been granted by this Court.
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2018 (3) TMI 2023
Disallowance of depreciation on non-compete fee - assessee claims that the depreciation was allowed right from the assessment year 2001-02 to 2005-06 and it was disallowed only during the year under consideration - HELD THAT:- As the copies of earlier orders are not available on record. Even on query from the Bench, the Ld.counsel for the assessee could not file copies of the assessment orders. Moreover, it was also not brought to the notice of the earlier Bench with regard to depreciation allowed by the AO from the assessment year 2001-02 to 2005-06. Therefore, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the AO.
Accordingly, the orders of both the authorities below are set aside the claim of depreciation on non-compete fee is remitted back to the file of the AO. AO shall examine the earlier record from the assessment year 2001-02 to 2005-06 and the order of this Tribunal for assessment year 2006-07 and thereafter decide the issue afresh in the light of the judgment of M/s Pentasoft Technologies Ltd. [2013 (11) TMI 1057 - MADRAS HIGH COURT] after giving a reasonable opportunity to the assessee.
Disallowance of depreciation on goodwill - HELD THAT:- This Tribunal by placing reliance on the judgment of Delhi High Court in the assessee's own case for assessment year 2005-06 [2012 (4) TMI 79 - DELHI HIGH COURT] allowed depreciation on the goodwill. Since facts are identical, this Tribunal is of the considered opinion that the decision of co-ordinate Bench of this Tribunal for the assessment year 2006-07 is equally applicable for the year under consideration. Therefore, AO directed to allow depreciation on goodwill.
TDS u/s 195 - Addition u/s 40(a)(i) - payment made to non-resident without deducting tax at source - assessee is a resident in India and paid testing fee to Kema, Netherlands for the purpose of testing the transformers manufactured by it - claim of the assessee before this Tribunal is that the technology of testing the transformers was not made available to the assessee, therefore, the payment is not taxable in India - HELD THAT:- As transformers manufactured by the assessee are sent to Netherlands for testing and the Netherlands company sent only report. Therefore, the knowledge of testing was not made available to the assessee. Hence, it cannot be considered as fee for technical services. In view of the above, this Tribunal is of the considered opinion that the payment made to Kema, Netherlands is not liable to deduct tax at source.
Payment made to Areva T&D Finance, France - In the absence of any material to indicate what was paid by the assessee is only reimbursement of expenditure, this Tribunal is of the considered opinion that the CIT(Appeals) is not justified in allowing the claim of the assessee only on the basis of oral submission made before him. If it is a real reimbursement, there should be a communication between the parties with regard to nature of expenditure and reimbursement. In the absence of any material, this Tribunal is of the considered opinion that the matter needs to be re-examined. Accordingly, orders of both the authorities below are set aside and the payment made to Areva T&D Finance, France is remitted back to the file of the Assessing Officer. The Assessing Officer shall re-examine the matter.
Payment made to Converteam, USA - As claim of the assessee before this Tribunal is that erection and commissioning charges are integral cost of machinery. However, no material evidence is produced before this Tribunal to indicate that the erection and commissioning charges are integral part of the cost of machinery. No agreement or invoice was produced either before the Assessing Officer or before this Tribunal. This Tribunal is of the considered opinion that the matter needs to be reexamined by the Assessing Officer. Accordingly, the orders of both the authorities below are set aside and the issue with regard to Converteam, USA is remitted back to the file of the Assessing Officer. The Assessing Officer shall re-examine the matter in the light of the material that may be filed by the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
Disallowance of claim for warranties - As per assessee provision was made on the scientific basis. On a query from the Bench how this provision was made and what is the method? - The Ld.counsel could not explain the expenditure incurred on the earlier years. Therefore, this Tribunal is of the considered opinion that the matter needs to be re-examined by the assessee. Accordingly, the orders of both the authorities below are set aside and the issue with regard to disallowance of provision for warranties is remitted back to the file of the Assessing Officer.
Additional depreciation claimed by the assessee - On a query from the Bench, the Ld.counsel submitted that the copy of assessment order for assessment year 2006-07 is not readily available even with the assessee. This Tribunal is of the considered opinion that for claiming additional depreciation, the assessee has to establish that the machinery was purchased and installed. If the depreciation could be allowed in the earlier assessment year, the balance depreciation can be claimed in the subsequent year. This Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, orders of both the authorities below are set aside and the issue of additional depreciation is remitted back to the file of the AO who shall re-examine the matter and find out whether the assessee, in fact, purchased and installed the machinery in the assessment year 2006-07 and whether the additional depreciation was claimed and allowed at the rate of 10% and thereafter decide the issue afresh.
Depreciation at the rate of 60% on UPS allowed.
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2018 (3) TMI 2022
Confessional statement recorded under the provisions of Section 164 Cr.P.C on oath - protected by the provisions of Section 463 Cr.P.C or not - whether the judgment of the Division Bench of this Court reported in re: Arjun Rai v State of Sikkim [2004 (4) TMI 663 - SIKKIM HIGH COURT] is good law? - whether mere administering of oath to an accused while recording his confessional statement keeping in mind sub section 5 of section 164 Cr.P.C, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 Cr.P.C and thus fatal? - violation of Article 20 (3) of the Constitution of India or not.
HELD THAT:- A bare perusal of Section 164 Cr.P.C. ought to make it clear to the Magistrate that the entire exercise to be meticulously conducted by the Magistrate while recording the confession is to ensure its truthfulness and voluntariness. These are paramount safeguards provided in the law under Section 164 and 281 Cr.P.C., Section 4 (2) of the Oaths Act, 1969 as well as Article 20 (3) of the Constitution of India. This is to ensure not only that the accused person is absolutely insulated from being compelled into self-incrimination but also to see that the accused not effected and not pressured by any external influences is willing to confess a crime committed by him which would be accepted as evidence against him. It would be strange that the Magistrate so empowered, to ensure its truthfulness and voluntariness himself commits an illegality which is prohibited giving reason to doubt not only of a failure of proper application of mind but also as to whether the confession itself was involuntary, under pressure of illegal oath administered. It has been held that administering oath to an accused before recording his confession is prohibited, unlawful and illegal.
The Magistrate while administering oath on an accused before recording the confession commits an illegality and unlawful act prohibited by law. Any information received which may be self-incriminatory in violation of the laws as well as the Constitutional guarantee, which may have compelled the accused to self-incriminate cannot but be termed "duress" or "undue influence". While it is true that the demand or requirement for speaking truth is absolute both by a witness after he is administered oath and by an accused while making a confession, administering oath upon an accused while recording his confession would lead to disastrous consequences. A perusal of Section 164 read with Section 281 Cr.P.C. makes it evident that the record of the examination of the accused is required to be done in a question and answer format. Section 281 Cr.P.C. mandates that whenever an accused is examined by any Magistrate the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the Presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in his behalf. The administration of illegal oath upon the accused at the first instance and thereafter questioning the accused person and seeking information which is self-incriminatory cannot but fall squarely within the ambit and scope of "testimonial compulsion".
The substantial illegality of administering oath upon an accused before taking a confession which is prohibited cannot be termed as a curable irregularity under Section 463 Cr.P.C. Answering the first question referred by the Division Bench in the affirmative we hold that the confessional statement recorded under the provision of Section 164 Cr.P.C. on oath is fatal and cannot be protected by the provision of Section 463 Cr.P.C. In the circumstances and consequently the judgment of the Division Bench of this Court in re: Arjun Rai [2004 (4) TMI 663 - SIKKIM HIGH COURT] is good law.
Supreme Court in re: Brijbasi Lal Shrivastava [1979 (1) TMI 250 - SUPREME COURT], held that administration of oath while recording statements of the accused under section 164 Cr.P.C. would amount to a concealed threat. If this be so then to permit further evidence to disprove what has been held to be a concealed threat would be to dilute the fundamental protection given to an accused under Article 20 (3) of the Constitution of India which we are not inclined to in today's context where the accused due to social conditions, lack of knowledge or advise may not be in a position to understand the nuances and intricacies of the laws.
It is also evident that on examination of Section 164(5) Cr.P.C. administering of oath to an accused while recording confession without anything more may lead to an inference that the confession was not voluntary. However, there could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 Cr.P.C and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused. If the Court before which such document is tendered finds that it was so, Section 463 Cr.P.C would be applicable and the Court shall take evidence of non-compliance of Section 164 and 281 Cr.P.C. to satisfy itself that in fact it was so and if satisfied about the said fact is also satisfied that the failure to record the otherwise voluntary confession was not in the proper form only and did not injure the accused the confession may be admitted in evidence.
Let the said appeal be placed before the appropriate Bench for final disposal.
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2018 (3) TMI 2021
LTCG - Deduction in respect of investment in bonds - Excess claim of deduction u/s. 54EC - A.O. found that Rs. 50 lacs have been invested in bonds in two financial years - AO noticed that the assessee has claimed deduction u/s. 54EC on sale of immovable properties to the tune of Rs. 1 crore and investment cannot exceed Rs. 50 lacs - Assesee as brought to the notice of the ld. CIT(A) that the Finance Bill, 2014 has inserted second proviso but only with effect from 01.04.2015 and subsequent years and therefore not applicable for the year under consideration, thus deleted addition - HELD THAT:- D.R. could not bring any factual or legal error in the findings of the ld. CIT(A). The Co-ordinate Bench in the case of Aspin Ginwala and Shree Ram Engg. & Mfg. Industries [2012 (4) TMI 195 - ITAT AHMEDABAD] held that if the appellant transfers his capital asset after 30th September of the financial Year he gets an opportunity to make an investment of Rs. 50 lakhs each in two different financial years and is able to claim exemption upto Rs, 1 crore under section 54EC. The language of the proviso is clear and unambiguous and so the appellant is entitled to get exemption upto Rs. 1 crore in this case;(ii) Though the time limit of 6 months for making the investment under section 54EC expired on 21.4.2008. no bonds were available for subscription between 1.4.2008 lo 28.5.2008.
The investment was made as soon as the subscription opened on 26.5.2008. The appellant was accordingly prevented by sufficient cause which was beyond his control in making investment in these Bands within the time Prescribed. Exemption should be granted in cases where there is a delay in making investment due to non-availability of the bonds.
Since the amendment brought in the statute is with effect from 01.04.2015 and is applicable on and from assessment year 2015-16, the same is not applicable on the facts of the year under consideration. We, therefore do not find any reason to interfere with the findings of the ld. CIT(A). Decided against revenue.
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2018 (3) TMI 2020
Maintainability of petition - Appropriate Forum - High Court of Supreme Court - refund of amount seized on a misapprehension - HELD THAT:- Considering the fact that the Appellant/Writ Petitioner was given a clean chit after investigations were completed and the Assistant Director of Income Tax (Investigation), Tirunelveli, through his letter, had informed the Second Respondent/Project Director, DRDA, Thoothukudi and Appellate Committee even as early as 28.11.2016 that money may be released back to him as per procedure and also this Court, taking note of the fact that the Learned Standing Counsel for the Fifth Respondent/Reserve Bank of India has fairly brought to the notice of this Court some of Notifications issued by the Ministry of Finance, the Specified Bank Notes (Cessation of Liabilities) Act, 2017 and the Operational Instructions relating to the Rules, 2017 and also keeping in mind the facts and circumstances of the present case, which float on the surface and taking into consideration the primordial fact that as on date, there is no impediment for the return of the said sum of Rs. 9 lakhs seized from the Appellant by the Authority concerned, this Court, in the interests of justice, fair play, equity and good conscience and even as a matter of prudence, directs Respondents 1 to 4, by adhering to the relevant provisions such as the Specified Bank Notes (Cessation of Liabilities) Act, 2017 and the Rules made thereunder and also the Operational Instructions issued by the Fifth Respondent/Reserve Bank of India dated 25.5.2017, to take necessary steps to hand over the seized sum of Rs. 9 lakhs to the Fifth Respondent/Reserve Bank of India together with the serial numbers of the seized notes.
By exercising utmost caution and circumspection, the Fifth Respondent/Reserve Bank of India shall transfer the said amount to Respondents 1 to 4, who, in turn, shall transfer the said amount to the Appellant/ Writ Petitioner after subjectively satisfying and adhering to all the relevant provisions of the aforesaid Act, 2017, the Rules framed thereunder and the Operational Instructions and also the Procedural Requirements, which are in force. The handing over exercise of the aforesaid amount by the concerned Respondent(s) shall be carried out within a period of two weeks from the date of receipt of a copy of this order. After receipt of the same from the Fifth Respondent/Reserve Bank of India, Respondents 1 to 4 shall remit the sum of Rs. 9 lakhs in the bank account of the Appellant to be specified by him within a period of 10 days thereafter.
Petition disposed off.
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2018 (3) TMI 2019
Money laundering - provisional attachment order - petitioner/Bank has already filed an Appeal before the Appellate Tribunal - HELD THAT:- In the light of the fact that the petitioner/Bank has already filed an Appeal before the Appellate Tribunal, the merits of the matter not gone into, and suffice it to state that the challenge to the order of provisional attachment is not maintainable, since, any person, aggrieved by the order of provisional attachment, has an effective remedy under the provisions of the Act. Therefore, the relief sought for by the petitioner/Bank is misconceived, as they were required to agitate the matter under the provisions of the Act and by following the procedure contemplated therein. However, since the petitioner/Bank has already preferred the Appeal before the Appellate Tribunal, it is open to them to pursue their remedy before the Appellate Tribunal.
Petition dismissed.
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2018 (3) TMI 2018
Money Laundering - territorial jurisdiction - summons and complaint have been served at Panchkula/Chandigarh and the entire transactions as per the complaint took place within the territory of State of Punjab - HELD THAT:- The submission made by the counsel for the petitioners that the petitioners reside at Chandigarh/Panchkula/Ludhiana or that the attachment of properties at Ludhiana was made and that the petitioners received summons at Chandigarh/Panchkula/Ludhiana, is wholly misconceived and misplaced and must be rejected outright. The residence of the accused persons cannot give cause of action. The attachment of factory/warehouses, etc. located at Ludhiana does not give any cause of action. Section 42 of the Act relates to appeal against the order of Appellate Tribunal and the provision has no relevance. The submission that there is an electronic exchange also at Ludhiana of National Spot Exchange Limited and, therefore, this Court has jurisdiction is again misplaced.
Thus, no part of cause of action at all arose within the territorial jurisdiction of Punjab and Haryana High Court and there was no question of filing any petition in respect of PMLA Case No. 4 of 2015, pending in the court of designated City Civil Court and Additional Sessions Judge, Greater Bombay, or to challenge the summons issued by the said court to the petitioners - Punjab and Haryana High Court does not have any territorial jurisdiction over these matters, and the territorial jurisdiction is that of Bombay High Court.
The custodial interrogation in the alleged huge scam like the present one could be most essential. However, in order to abuse the entire process of interrogation and investigation, these petitions were lodged in this Court and interim orders were obtained. In our opinion, therefore, the petitioners are fully guilty of misusing the process of law and interfering in the administration of justice. The petitioners are, therefore, liable to pay exemplary costs to the Union of India through the Enforcement Directorate.
It is already found that the petitioners have successfully obtained interim orders from this Court i.e. exemption from personal appearance and bail, it is necessary to set the things right keeping in mind the principle 'actus curiae neminem gravabit' - the grant/furnishing of bail pursuant to the interim order made by this Court, becomes inconsequential.
Petition dismissed for want of territorial jurisdiction.
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