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Showing 61 to 80 of 1976 Records
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2018 (4) TMI 1920
Seeking grant of permission for renewal of passport - HELD THAT:- The law with regard to grant of permission for renewal of passport has been fairly settled by this Court in N. CHANDRABABU VERSUS THE SUB INSPECTOR OF POLICE, TRICHY, THE PASSPORT OFFICER, PASSPORT OFFICE, TRICHY [2017 (4) TMI 1589 - MADRAS HIGH COURT] and also in an unreported judgment of a learned single Judge of this Court in W.Jaihar William and others v. The State of Tamil Nadu and others, [2014 (6) TMI 1064 - MADRAS HIGH COURT] where it was held that It is clear that unless the Judicial Magistrate takes cognizance of the offence, on filing of charge-sheet on completion of investigation against the applicant, it cannot be said that the proceedings are pending before the Criminal Court. Therefore, the 3rd respondent cannot mechanically refuse to issue passport to the petitioners, merely for the reasons that the FIRs are pending against the petitioners. On receipt of the application for passport, the 3rd respondent shall consider the same and pass appropriate orders.
This Court is of the view that it will serve the interest of justice, if 'no objection' is granted to the petitioners for renewal of their passports - In view of the no objection granted by this Court, it is open to the passport authorities to renew the passports of the petitioners in accordance with the Rules.
This Court is of the view that permission can be granted to him to go abroad - Application allowed.
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2018 (4) TMI 1919
Seeking provisional release of goods for human consumption and export - Section 110A of the Customs Act, 1962 - HELD THAT:- Without commenting upon the merits of the case, the Adjudicating Authority is directed to decide both the applications of the petitioner for provisional release of goods within a period of seven days from the date of filing of copy of this order under the provisions of the Customs Act, 1962, after considering the letter dated 23.11.2017 issued by the DRI.
The writ petitions stands disposed of.
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2018 (4) TMI 1918
Disallowance of ESIC u/s 36(1)(va) r.w.s. 2(24)(x) - late payment of employee’s contribution towards ESIC - HELD THAT:- It is undisputed fact that the assessee has made late payment of employee’s contribution towards ESIC on 26th July, 2012. whereas the due date of payment of ESIC as per the relevant act for the purpose of ESIC is 21st April, 2012. The contention of the assessee that the ESI contribution was in the nature of labour expenses for the company since it was contributed by the assessee without any recovery from the labourers has no merit as the assessee has deposited the ESI out of the labour expenses which were payable to the employees. Therefore it is established from these facts that labour expenses which were to be paid to the labours have been deposited as contribution on the behalf of labours in the ESI. In view of the above facts and the detailed findings of the Ld.CIT(A) it is clear that the provisions of section 2(24) (x) r.w.s. 36(1)(va) are attracted to the case of the assessee. See GUJARAT STATE ROAD TRANSPORT CORPORATION [2014 (1) TMI 502 - GUJARAT HIGH COURT] - Decided against assessee.
Disallowance u/s. 36(1)(iii) - AO not accepted the explanation of the assessee stating that the assessee has not given any specific reason and supporting evidences to substantiate that why the interest was not capitalized towards CWIP and no borrowed funds was utilized towards purchase of various items forming part of the CWIP as on 31st March, 2012 and computed interest @ 12% on the various items forming part of the CWIP and capitalized it u/s. 36(1)(iii) - HELD THAT:- As from the proviso to section 36(1)(iii) that any interest paid in respect of capital borrowed for acquisition of an asset, even for the extension of the existing business has to be capitalized till the date on which such asset was first put to use and the same cannot be allowed as deduction. However, for want of information and supporting evidences, the assessing officer capitalized the interest @12% on the various items forming part of CWIP. After considering the above facts and judicial findings, we consider it will be appropriate to restore this issue to the file of the assessing officer for deciding afresh after taking into consideration the exact date of additions to various items forming part of CWIP and after excluding the period when the capital asset actually put to use in the lights of the directions laid down in the above judicial pronouncements. Therefore, as directed, we restore this issue to the file of the assessing officer for deciding afresh after affording adequate opportunities to the assessee.
Appeal of the assessee is partly allowed.
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2018 (4) TMI 1917
Exemption u/s 11 - rejecting the application u/s 12 AA of the Income Tax Act 1961 on account of non attendance - assessee filed an application in Form-10A seeking registration u/s 12A - HELD THAT:- As noted that the Trust has been found by the parent company to redeem its CSR obligations and the Settlers of the Trust were noted to be the Directors of the parent company. The CIT (E) sought details, as set out in para 5 and 6 of the impugned order and in the absence of any effective representation, the impugned order has been passed. Accordingly, in the light of the submissions of the parties before the Bench, accepting the oral undertaking of the ld. AR that the assessee shall not abuse the trust reposed, the impugned order is set aside to the CIT (Exemptions), Chandigarh with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The assessee is directed to participate fully and fairly before the said authority and not abuse the trust reposed. It is made clear that in the eventuality of abuse of the same, the CIT(Exemptions) would be at liberty to pass an order on the basis of the material available on record. Appeal of the assessee is allowed for statistical purposes.
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2018 (4) TMI 1916
Rectification of Mistake - mistake apparent from the records - failure on the part of Hon’ble Tribunal to appreciate the established law that the Tribunal has got the power to look into the issue for the first time when it is raised, that too when there is a judgment of higher court, under Article 141 of the Constitution of India - Classification and rate of GST - Margarine - HELD THAT:- There was specific argument advanced by the appellant’s counsel before this Tribunal stating that the Hon’ble High Court of Karnataka while dealing with the rate of tax applicable for the sale of Margarine has categorically held that Margarine is an edible oil falling under Entry 31 of the 3 Schedule to the KVAT Act, taxable at the rate of 5.5%. In fact, the Tribunal has discussed the issue but for the reason that the issue was not raised before the lower authorities, this Tribunal declined to decide the issue which was raised for the first time, It is submitted that the Tribunal being the last fact finding authority for the First Time new facts could also be brought to the notice of this Tribunal.
In view of the appellants plea to declare the rate of tax on margarine at 5.5% to set right the mistake that happened with respect to rate of tax on Margarine at the hands of the authorities below which has not been done in the earlier order of the Tribunal, the same is hereby rectified by holding that Margarine is taxable at 5.5% as per the High court decision in Pioneer Marketing Case, for the relevant tax period.
The Rectification Application in No. 2/2016 is allowed. Margarine is taxable at 5.5.% - The Registrar of the Tribunal is directed to comply with Regulation 53(b) of Chapter-IX of Karnataka Appellate Tribunal Regulations 1979 by communicating this order to the persons mentioned therein.
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2018 (4) TMI 1915
Reopening of assessment u/s 147 - Excess depreciation claim on computer software - AO held that rate of depreciation on intangible assets is to be allowed @25% and not @ 60% - HELD THAT:- CIT(A), firstly held the proceedings u/s.148 to be invalid for the reasons that there is no tangible material or information coming on record after the completion of the assessment and hence there cannot be any reason to believe for reopening the case; and secondly, AO has not disposed of the objection as per the guidelines laid down in the case of GKN Drive shafts (India) Ltd.[2002 (11) TMI 7 - SUPREME COURT] on the issue of rate of depreciation @ 60% or @ 25% he held that there is Hon'ble Jurisdictional High Court decision, wherein it has been held that for computer peripherals like software depreciation should be allowed @ 60% - there is no legal or factual infirmity in the order of the ld. CIT(A) - Decided against revenue.
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2018 (4) TMI 1914
Stay of recovery of disputed demand - AO has rejected the applications for stay simply stating that the request of the balance demand cannot be accepted at present and the said applications have been rejected without assigning any reason - HELD THAT:- AO has not adopted the correct procedure in deciding the stay applications of the petitioners and has not followed the guidelines as stated by Bombay High Court in KEC International Ltd [2001 (3) TMI 32 - BOMBAY HIGH COURT] and in UTI Mutual Fund [2012 (3) TMI 333 - BOMBAY HIGH COURT] and also the decision rendered by this Court in M/s Aarti Sponge & Power Ltd. [2018 (4) TMI 1284 - CHHATTISGARH HIGH COURT]
In view of aforesaid discussion, the impugned orders are hereby set aside and the matter is remitted to the Assigning Officer to consider the stay applications afresh in light of the guidelines as stated by the Bombay High Court and followed by this Court in M/s Aarti Sponge & Power Ltd. [2018 (4) TMI 1284 - CHHATTISGARH HIGH COURT] and pass a reasoned and speaking order within two weeks from the date of receipt of certified copy of this order.
Also, till the decision of the stay applications, no coercive steps shall be taken against the petitioners.
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2018 (4) TMI 1913
Violation of principles of natural justice - Validity of assessment order - alleged purchase omission - reversal of ITC claimed for the discount received for the relevant assessment years - levy penalty under Section 27(3) of TNVAT Act - HELD THAT:- The petitioner has not accepted the allegations made by the Enforcement Wing Officials. Therefore, the Assessing Officer has committed serious error in stating that the petitioner themselves have admitted the discrepancies. This would be sufficient, even to the set aside the show cause notice. However, the fact remains that the petitioner submitted their objections and requested for personal hearing so that, they could discuss with the Assessing Officer and then, produce necessary record to reconcile the alleged purchase omission. However, the Assessing Officer did not take note of the tone and tenor of the objections given by the petitioner, but, mechanically, stated that the details given by them were not exactly tallied. The Assessing Officer should have made an endeavour atleast to test the details of the transactions, which tally, and he ought not to have completed the assessment by making such vague averments.
This Court is of the view that the impugned orders are completely flawed - the impugned orders are set aside and the matters are remanded to the respondent for fresh consideration, who shall first afford an opportunity of personal hearing to the petitioner, and if the petitioner requests for any details, the same shall be furnished, after which, further opportunity be granted and the assessment shall be redone in accordance with law and a speaking order should be passed - Petition allowed by way of remand.
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2018 (4) TMI 1912
Rectification of mistake u/s 154 - Penalty proceedings under section 271(1)(c) - HELD THAT:- As there is no specific grievance of the assessee against the order passed under section 154 by the ld. CIT(A). In fact the assessee intends to file the appeal against the order dated 24.07.2014 vide which the penalty was partially confirmed. According to assessee, by an inadvertent mistake the appeal was filed against the subsequent order passed under section 154 - As prayed that the assessee be given liberty to file fresh appeal against the order of ld. CIT(A) vide which imposition of penalty was confirmed. According to assessee, under some bonafide mistake, the assessee has invoked wrong remedy. He also suggested that either the assessee should be permitted to file fresh grounds of appeal along with fresh Form No.36 in the very appeal because along with the order passed under section 154 the assessee has placed on record original order of the ld. CIT(A) dated 17.10.2014, Assessment Order, and penalty order.
We deem it appropriate that in place of substitution of this appeal the assessee should file a separate appeal with application for condonation of delay, if so advised. The present appeal is not maintainable as such.
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2018 (4) TMI 1911
Dishonor of cheque - absence of indictment of partnership firm as co-accused for the offence punishable under section 138 of the N.I. Act - Is it permissible to go beyond section 141 of the N.I. Act for interpretation of the expression "firm" applied in Explanation to section 141 of the N.I. Act? - HELD THAT:- The clear legislative intent is again demonstrated in clause (b) of section 141 of the N.I. Act, when it defines directors in relation to a firm, to mean a partner in the firm. The conscious departure from the provisions of Partnership Act is thus made loud and clear and when intention is loud and clear, the provisions of Partnership Act are irrelevant for interpreting the expression "company" in explanation (a) to section 141 of the N.I. Act. The expression "company" used in explanation (a) to Section 141 is not to be understood in the limited sense of it being only a juristic person but would include even non juristic persons as intended by the legislature.
It is not permissible to go beyond the language used in section 141 and therefore even in absence of registration of the partnership firm, section 141 shall have to be complied with in its later spirit - the petitioners are ordered to be acquitted - petition allowed.
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2018 (4) TMI 1910
Addition on account of suppressed scrap sales - Addition made on the basis of material found during the course of survey u/s 133A - Whether no evidence was given by the assessee to prove the market rate of that period? - HELD THAT:- In the absence of any evidence of scrap generation having been sold out of the books at higher rates, we hold that there is no justification on the part of the AO in making an addition on imaginative basis. - Decided in favour of assessee.
Bogus payment of commission - HELD THAT:- Since there is no change in the facts and circumstances for the assessment year under consideration, we affirm the order of ld. CIT (Appeals) who had rightly deleted the additions by following the decisions of the Tribunal in the assessee’s own case for the A.Y. 1999-2000[2011 (9) TMI 1228 - ITAT JAIPUR] - no substantial question of law arises.
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2018 (4) TMI 1909
Appeals heard ex parte qua the assessee - HELD THAT:- In view of this fact that none appeared on behalf of the assessee and there is no request for adjournment, there appeals are liable to be dismissed as unadmitted as was held by the tribunal in the case of CIT vs. Multiplan India (P) Ltd[1991 (5) TMI 120 - ITAT DELHI-D] - Respectfully following this tribunal order, these appeals are dismissed.
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2018 (4) TMI 1908
Dishonor of Cheque - amicably settlement of matter by way of compromise - compounding of offences - whether it is permissible to record the settlement and quash the judgment and order of conviction passed by the trial Court and affirmed by the appellate court? - HELD THAT:- The offence punishable under Section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974 , but still it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of NI Act, at least can be inferred that the intention of legislature while inserting Section 147 of the NI Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of NI Act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the NI Act should be treated as if the same is falling under table-II of Section 320 IPC - The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting "Banking", Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, i.e., Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C.
There is no formal embargo in Section 147 NI Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the NI Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC - it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this Court intends, otherwise to secure the ends of justice as provided under Section 482 Cr.P.C. obviously the order disposing Revision Application would not have any enforceable effect.
It is hereby declared that the compromise arrived at between the parties to this litigation out of the court is accepted as genuine and the order of conviction and sentence passed by the 3rd Additional Chief Judicial Magistrate, Mehsana, dated 15th December 2015, in the Criminal Case No.4109 of 2013 is hereby ordered to be quashed and set-aside - petitions allowed.
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2018 (4) TMI 1907
Permission for withdrawal of appeal - Monetary limit involved in the appeal - HELD THAT:- When the appeal is having the tax effect of less than the prescribed limit, the appeal is not maintainable. Hence, the appeal is dismissed as withdrawn.
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2018 (4) TMI 1906
Seeking to restore the name of the company in the Register of Companies - section 252(1) read with section 252(3) of the Companies Act, 2013 - HELD THAT:- Perusal of the appeal filed by the appellant shows that the appellant has stated in the appeal of filing Income-tax Returns for the assessment years 2011-12 upto 2016-17 and the same has also been vouched by the Income-tax Department in its observations wherein it is stated that the Income-tax Department will have no objection if the name of the appellant-company is restored, as sought for in the appeal.
As rightly contended by learned counsel for the appellant in addition to the two situations of grounds contemplated, namely, that of the company carrying on business or was in operation at the time of striking off its name, the second situation, which is an alternative situation, is one where it appears just to the company court that the name of the company be restored to the register. It is also seen from the perusal of the provisions under section 252(3), that this Tribunal if it is of the opinion it is just that the name of the company is to be restored to the register of companies maintained by RoC, such orders can be passed for the name of the company to be so restored.
The name is directed to be restored - application allowed.
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2018 (4) TMI 1905
Seeking grant of bail - non- compliance of the condition of deposit of passport to the C.B.I - HELD THAT:- It is submitted by the learned counsel for the applicant that he has no grievance or difficulty if the part of the condition that "in other words he will not allow the leave the country without leave of the Trial Court." is kept intact as he is ready to comply that part of the condition and he will neither leave the country nor get the passport renewed without permission of the Trial Court - The petition is allowed.
The order dated 26.10.2017 is modified to the extent that the words mentioned in the condition no.1 "During the course of the arguments it was informed to the Court that his passport is with the respondent - Petition disposed off.
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2018 (4) TMI 1904
Addition u/s 68 - Tribunal deleted the addition u/s. 68 being share capital share premium received during the year when the AO held the same as unexplained cash credit - HC held that pre-amended Section 68 has held that where the Revenue urges that the amount of share application money has been received from bogus shareholders then it is for the Income Tax Officer to proceed by reopening the assessment of such shareholders and assessing them to tax in accordance with law. It does not entitle the Revenue to add the same to the assessee's income as unexplained cash credit. - HELD THAT:- The special leave petition is disposed of in above terms. Pending applications, if any, are also stand disposed of.
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2018 (4) TMI 1903
Assessment ex parte u/s 144 - estimation profit @ 5% of the turnover - CIT(A) reduced the rate of profit from 5% to 1% after considering the past history of assessee - HELD THAT:- The audited financial statement of the current year as well as profit declared by assessee in earlier years cannot be ignored while estimating the profit under best judgment assessment. The assessee for all the years had duly filed return of income which was not selected under scrutiny u/s 143(3) of the Act. Regarding the selection for scrutiny proceedings it is the policy of the Revenue and the assessee has no role to play in selecting the same under scrutiny. Therefore, in our considered view, it is imperative to take the guidance from the history of assessee.
Rate of profit estimated by Ld. CIT(A) is correct and in accordance with the provision of law. Thus, we uphold the order of Ld. CIT(A) and this ground of Revenue is dismissed.
Treating 1% of sale value of DEPB as income of the assessee - In the instant case, AO has treated the revenue from the sale of DEPB as income from other source. However, Ld. CIT(A) reversed the order of AO by holding that the amount of sale for DEPB is part and parcel of the total turnover of assessee. Now the issue before us arises whether the amount of DEPB represents the income from other source or income from business. We find that there is a explicit provision u/s 28(iiib) of Act which clearly says that the amount of DEPB will be taxed under the head “income from business and profession”
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2018 (4) TMI 1902
Refund of excess Input Tax Credit (ITC) - when the request for refund was being under consideration, the Writ Petition has been filed - HELD THAT:- The petitioner has to necessarily submit their reply/objections to the show cause notice and contest the matter before the respondent, as there is no order passed by the respondent, rejecting the claim of refund made by the petitioner.
The Writ Petition is disposed of, by directing the petitioner to submit their reply to the show cause notice, dated 05.02.2018, within 15 days from the date of receipt of a copy of this order, and on receipt of the reply, the respondent shall afford an opportunity of personal hearing to the Authorized Representative of the petitioner and pass a speaking order on merits and in accordance with law.
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2018 (4) TMI 1901
Principles of Res-Judicata - unilateral cancellation of assignment agreement - limitation period for filing of an appeal - what is to be done in matters where the hearing in the second case is shortly after the limitation period for filing an appeal in the first case has ended? - HELD THAT:- If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding - Many factors have to be considered before exercising this discretion – for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding. As has been stated, the judicious use of the weapon of stay would, in many cases, obviate a Court of first instance in the second proceeding treating a matter as res judicata only to find that by the time the appeal has reached the hearing stage against the said judgment in the second proceeding, the res becomes sub judice again because of condonation of delay and the consequent hearing of the appeal in the first proceeding. This would result in setting aside the trial Court judgment in the second proceeding, and a de novo hearing on merits in the second proceeding commencing on remand, thereby wasting the Court’s time and dragging the parties into a second round of litigation on the merits of the case.
In the present case, a belated review petition was filed after arguments were heard and judgment reserved by the appellate Court. Would this Court have to await the outcome of the said review petition before deciding whether the judgment dated 27.4.2013 is res judicata? Obviously not. It is clear that a review petition filed long after the judgment dated 27.4.2013, with a condonation application for a delay of over four years, could not possibly be held to be anything but an abuse of the process of the Court.
Both the trial Court and the first appellate Court were entirely wrong in treating the statutory prohibition contained in Section 45(2) of the Trade Marks Act as res judicata. It is obvious that neither Court has bothered to advert to Section 45 and/or interpret the same - A cursory reading of Section 45(2) of the Trade Marks Act makes it clear that the assignment deed, if unregistered, cannot be admitted in evidence by any Court in proof of title to the trademark by the assignment, unless the Court itself directs otherwise. It is clear, therefore, that any reliance upon the assignment deed dated 8.10.2003 by the earlier judgment cannot be sanctified by the plea of res judicata, when reliance upon the assignment deed is prohibited by law.
Equally, a reference to Sections 6, 8 and 46(4) of the Banking Regulation Act would also make it clear that a bank cannot use the trademark “Eenadu” to sell agarbathies. This would be directly interdicted by Section 8, which clearly provides that notwithstanding anything contained in Section 6 or in any contract, no banking company shall directly or indirectly deal in the selling of goods, except in connection with the realisation of security given to or held by it. Also, granting permission to third parties to use the trademark “Eenadu” and earn royalty upon the same would clearly be outside Section 6(1) and would be interdicted by Section 6(2) which states that no bank shall engage in any form of business other than those referred to in sub-section (1) - the trademarks are not part of any security for loans or advances that have been made to the first respondent, or connected with the same. It is thus clear that the assignment deed dated 8.10.2003 is clearly hit by Section 6(2) and Section 8 read with the penalty provision contained in Section 46(4) of the Banking Regulation Act.
The judgment of the trial Court and the first appellate Court are set aside - Appeal allowed - decided in favor of appellant.
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