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Showing 81 to 100 of 1976 Records
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2018 (4) TMI 1900
100% EOU - grant of Private Bonded Warehouse licence - failure go fulfill export obligation - export of buffalo meat and tapioca - HELD THAT:- The petitioner is now attempting to put forward a case based on merit. There is no error in the decision making process. All that was canvassed by the petitioner in this writ petition could have been canvassed in the appeal. If the appeal was dismissed on the ground of limitation, the petitioner cannot resurrect such ground which could have been canvassed before the appellate authority, by way of a writ petition. Since there is no error in the decision making process, the writ petition is only to be dismissed.
The petitioner is permitted to discharge the liability in 12 monthly instalments starting from next month onwards - Petition dismissed.
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2018 (4) TMI 1899
Suit for declaration and permanent injunction - Fraudulent putting thumb impressions on the sale deed - time limitation - HELD THAT:- There are no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the Appellants (Plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation.
What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane.
The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto - In the present case, it is found that the Appellants (Plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendant Nos. 1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the Appellants.
There are no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh. 21) filed by Respondent No. 1 (Defendant No. 5) Under Order VII Rule 11(d) - the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law.
Appeal allowed.
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2018 (4) TMI 1898
Disallowance of sale promotion expenses u/s 37(1) - disallowance was made on the ground that the payment made by assessee is covered by Circular No.5/2012 issued by CBDT - Assessee Company is engaged in the business of manufacturing of Pharmaceuticals product and in Oral care products - - HELD THAT:- The assessee has to satisfy the AO that the expenditure is not in violation of the Medical Council regulation. Thus, if the assessee brings out that the MCI regulation is not applicable to the assessee before the AO, the same cannot be applied blindly.
Hon’ble Delhi High Court in Max Hospital v. MCI[2014 (1) TMI 1829 - DELHI HIGH COURT] held the Medical Council of India admitted that the Indian Medical Council Regulation of 2002 has jurisdiction to take action only against the medical practitioners and not to health sector industry. The High Court further held that it is ostensibly clear that the Medical Council of India has no jurisdiction to pass any order or regulation against any hospital or any health care sector under its 2002 regulation. So once the Indian Medical Council Regulation does not have any jurisdiction nor has any authority under law upon the pharmaceutical company or any allied health sector industry, then such a regulation cannot have any prohibitory effect on the pharmaceutical company like the assessee.
Thus, considering the above factual and the legal position, we are of the view that expenditure incurred by assessee on distributing glass, face mask, pen, writing pad, towel set, wall clock, paper cups except ‘Voltas Cooler and stabilizer’ cannot be regarded as freebies given to the Doctors. Hence, except the cost of the Voltas Cooler and stabilizer we allow all the remaining expenditure incurred by the assessee on account of sale promotion expenses. Therefore, the ground of appeal raised by the assessee is partly allowed.
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2018 (4) TMI 1897
Validity of order u/s 144C - period of limitation - whether order was passed beyond the time prescribed u/s.144C(2) read along with section 144C(4)? - HELD THAT:- It is not disputed that the draft assessment order was served on the assessee on 29.12.2016 and the assessee filed objections before the DRP as on 31.01.2017 - it was filed after the thirty day time period allowed under sub-section (2) of Section 144C of the Act. As rightly pointed out by the ld.DRP, there is no power u/s.144C for the DRP to condone any delay. Powers of the DRP are exhaustively set out in Sec.144C of the Act and it has no power to condone any delay in filing of objections.
DRP rightly held that application of objections could not be accepted. In our opinion, delayed filing of objections gives rise to the same consequence as non-filing of the objections. This is because objection filed after 30 days, which is beyond statutory limit, is as good as no objection. Copy of the objections was filed by the assessee before the ld. AO only on 30.03.2017, and even this was beyond the limit of 30 days. Thus, assessee did not satisfy any of the conditions mentioned in sub-section (2) of section 144C. Non-filing of objections within the time period allowed under 30 days will automatically attract application of sub-section (4) of Section 144C of the Act. Sub-section (4) clearly say that an assessment order has to be passed within one month from the end of the month when the period of filing of objections under sub-section (2) expires. Contention of the ld.D.R is that the order of the DRP rejecting the application filed by the assessee was a direction of the DRP and hence time limit set out in sub-section (13) of Section 144C was available to the Assessing Officer for passing the assessment order.
An order passed by the DRP rejecting an application of objections, due to belated filing, in our opinion, cannot be equated with a direction coming within the meaning of sub-sections (5) of section 144C of the Act. There is no guidance whatsoever to the ld.AO, from such an order. Hence, the argument of the ld.DR that time limit given in sub-section (13) of Section 144C of the Act would apply cannot be accepted. In the case before us, the time limit for filing objections expired on 28.01.2017. Hence, the assessment order should have been passed on or before 28.02.2017. The assessment order was passed only 22.03.2017. Thus, assessment done was beyond the statutory limit allowed under the Act. The assessment stands set aside - Assessee appeal allowed.
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2018 (4) TMI 1896
Rectification of mistake u/s 254 - mistake apparent on record to the extent of not considering the correct facts on the issue of validity of reopening of the assessment - assessee has contended that the said amount has been duly disclosed in the return of income as part of the long term capital gain on sale of shares - HELD THAT:- We note that though the Tribunal while passing the impugned order has rejected the contention of the assessee against the validity of reopening however, this particular fact whether the assessee has disclosed this amount in the return of income or not has escaped consideration by the Tribunal while deciding the issue. Hence, we are of the considered view that there is a mistake apparent on record in the impugned order and consequently we recall the impugned order of the Tribunal for fresh hearing and adjudication of the matter. The registry is directed to fix the appeal of the assessee for fresh hearing and adjudication in regular course. The parties to be informed about the next date of hearing.
In the result, the miscellaneous application is allowed.
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2018 (4) TMI 1895
Tribunal justification not following the orders of the coordinate Benches, on identical fact situation that the coordinate Benches did not apply the correct test of human probabilities - HELD THAT:- As is evident from the question, the grievance of the Appellant is with the decision making process of the Tribunal. In the above view, we are inclined to dispose of the appeal at the stage of admission.
As none appears for the Respondent; despite service, this appeal is being adjourned to 25.4.2018. At which time it is likely that the Appeal itself may be disposed of at the stage of admission - The Appellant is directed to serve a copy of this order upon the Respondent-Revenue.
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2018 (4) TMI 1894
Levy of service tax or VAT - works contract with Government of Tamil Nadu through respondents 5 to 15 for carrying out several construction and other works - It is the specific case of the appellant that service tax was not collected from Government / TNHB and that sovereign functions of the State are not liable to tax - HELD THAT:- When service tax was not included in tender notification and collected, appellant is constrained to challenge the very notification itself, on the ground that appellant need not collect service tax and pay to 1st respondent and thereafter to get reimbursed from State / TNHB.
The service tax is paid by the appellant and reimbursement is sought for. If any amount has already been collected, then the appellant cannot retain, but to pay to the 1st respondent. But, in the case on hand, no service tax was collected, but the appellant is compelled to pay and thereafter, to get the same reimbursed. Appellant need not be mulcted with liability to pay service tax, which they have not collected from the Government / Tamilnadu Housing Board, and consequently, to pay the same to 1st respondent. Intention not to collect service tax from government for sovereign functions, is the main issue and that is why exemption has been granted earlier.
Appellant is entitled for an order of interim injunction - appeal allowed.
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2018 (4) TMI 1893
Rejection of permission to the petitioner to visit abroad - Sections 406, 420, 506, 34 of IPC - HELD THAT:- The petitioner is granted permission to travel abroad from 21.04.2018 to 15.05.2018 subject to deposit of ₹ 2.00 lacs with the trial Court. Petitioner shall also furnish an undertaking that in case he failed to return back to India or appear before the trial Court within the aforesaid time, said amount of ₹ 2.00 lacs shall stand forfeited to the State.
Petition disposed off.
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2018 (4) TMI 1892
Estimation of income - bogus purchases - HELD THAT:- As disclosed by the assessee is at 8.55% which is as per the market rate of similar diamond traders and also similar to as disclosed by the assessee in earlier years - It is also a fact that the assessee has failed to substantiate the purchases by not producing the parties in question and admission of the party that they have indulged in providing bogus accommodation entries.
Some cases cited by the Tribunal of Mumbai Tribunal has adopted 2% net profit rate. Considering the net profit of 5% as the average rate of the industry as observed by the Hon`ble Jurisdictional High Court and following the judicial pronouncements by the Co-ordinate Bench of Tribunals and the decision in the case of Mayank Diamonds Pvt. Ltd. v. ITO[2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases.
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2018 (4) TMI 1891
Money Laundering - rejection of conversion of issuance of nonbailable warrant into bailable warrant - Section 13(2) read with Section 13(1)(E) of the Prevention of Corruption Act, 1988 - HELD THAT:- The extra ordinary jurisdiction of this court available under Art.226/227 of the Constitution of India can be availed only in case no efficacious and effective alternate remedy is available to the petitioner. Even if an effort is made by the petitioners to do so, the courts should exercise this power with great circumspect and should be loath to interfere. In the existing facts and circumstances of the case in hand, the efficacious and effective remedy was available to the petitioners to move the High Court under Sec.482/483 Cr.P.C for recalling the order impugned dated 15.3.2018 whereby application filed under Sec.70 (2) Cr.P.C was rejected.
Whenever a case is demonstrated that the exercise of powers under Sec.482/483 is required to curb the abuse of the process of the court and to advance the cause of justice, the High Court would come forward to the rescue the petitioner. This remedy has not been availed by the petitioner in the matter in hand. Instead the extra ordinary writ jurisdiction under Art. 226 of the Constitution of India has been invoked by the petitioners which is not warranted in the existing facts & circumstances of the case.
Taking note of the fact that the petitioners may still avail this remedy, if so advised, this court thinks it proper to restrain it from embarking upon the discussion on merits of the case - the preliminary objection raised by the learned counsel for the respondent/s regarding maintainability of these petitions, is sustained - Petition dismissed.
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2018 (4) TMI 1890
Maintainability of application - initiation of CIRP - Corporate Debtor failed to liquidate its financial debts - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The present petition has been filed in the required format through its duly authorised signatory and has complied with the mandatory requirements under the Code including issuance of a demand notice to which no reply was given. The copies of the invoices have also been annexed - On being served the Corporate Debtor put in its appearance through their advocate and made a categorical statement that they admit the outstanding liability but are unable to repay the same. The demand notice under Section 8 was also issued prior to the filing of the present petition and no dispute was raised in respect of the same.
In View Of the admitted liability Of a financial debt towards the Operational Creditor, the prayer of the Petitioner merits consideration - Petition admitted - moratorium declared.
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2018 (4) TMI 1889
Requirement for payment of pre-deposit - liability of the petitioner to tax in respect of set-top-boxes - HELD THAT:- Since the petitioner is on first appeal, he would have paid at least 12.5% of the disputed tax. But according to the petitioner an adjustment of the ITC was made, leading to a total payment of nearly 24% of the disputed tax - In matters of similar nature, this Court granted stay on condition that 25% of the disputed tax is paid.
The writ petition is disposed of granting an interim stay of collection of the balance of disputed tax, pending disposal of the first appeal, subject to the condition that the petitioner deposits 25% of the disputed tax, less the amount already paid, within a period of three weeks from the date of receipt of a copy of this order.
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2018 (4) TMI 1888
Provisional attachment order - land sold to the appellant by the Bank officials, by way of private negotiations, as against the guideline value, without properly resorting to the regular methods of bringing the property to public auction - HELD THAT:- The learned Single Judge has thoroughly appreciated the facts and circumstances of the case and declined to interfere with the impugned order of provisional attachment, however, granted liberty to the appellant to approach the adjudicating authority, who is the fact finding authority
There are no illegality or irregularity in the order passed by the learned Single Judge, warranting interference with the same, except to direct the adjudicating authority to expedite the matter and pass order on merits and in accordance with law after hearing both the parties. It is for the adjudicating authority as a fact finding authority to look into the grievance of the appellant with regard to raising of provisional attachment or whether they are genuine party are whether there is any camouflage activity.
Appeal disposed off.
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2018 (4) TMI 1887
Right to marry a person - parens patriae power - constitutional challenge on the ground of right to privacy.
As per Dipak Misra, C.J.I. and A.M. Khanwilkar, J.
HELD THAT:- t is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow - Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept.
In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony.
The investigation by the NIA in respect of any matter of criminality may continue in accordance with law - Appeal allowed.
As per Dr. D.Y. Chandrachud, J.
The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High Court was of the view that at twenty four, Hadiya "is weak and vulnerable, capable of being exploited in many ways". The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind.
Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.
This Court by its interim order had allowed the National Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an investigation. We clarify that NIA may exercise its authority in accordance with the law within the bounds of the authority conferred upon it by statute - Appeal allowed.
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2018 (4) TMI 1886
Maintainability of petition - HELD THAT:- The grievance of the petitioner can be redressed by issuing direction to respondent No.4 to take decision on the representation/appeal tendered by the petitioner on 20.2.2018 as expeditiously as possible and preferably within a period of four weeks from today and it is accordingly directed.
Petition disposed off.
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2018 (4) TMI 1885
Constitutional Validity of Section 234E - Late filing fee under Section 234E - exercise of power under Section 200A - charging of fees payable u/s 234E prior to amendment to section 200A(1)(c) of the Act vide Finance Act, 2015 w.e.f. 01.06.2015, while processing the TDS returns HELD THAT:- As decided in SRI. FATHERAJ SINGHVI AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (9) TMI 964 - KARNATAKA HIGH COURT] Amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/ returns in the present three appeals for the period prior to 01.06.20 15 was not empowered to charge fees under section 234E of the Act. Therefore, the intimations issued by the AO under section 200A of the Act in these appeals are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted - we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 - Decided in favour of assessee.
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2018 (4) TMI 1884
Royalty receipt - customer royalty programmes, provided by the assessee to its client and customers - fees for technical services amounted to royalty under Article 12 of India – US DTAA - HELD THAT:- This question is covered by the ruling of this Court in assessee’s case i.e. Director of Income Tax Vs. Sheraton International Inc.[2009 (1) TMI 27 - DELHI HIGH COURT].
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2018 (4) TMI 1883
Validity of reopening of assessment u/s 147 - eligibility of reasons to believe - AO received information from DIT Investigation, Varanasi that the assessee’s company has received bogus entries - assessee argued that reopening based on non-existing facts as Assessee has been able to explain that the income which was believed to have escaped assessment was explainable - whether Tribunal was justified in holding that the proceedings for reassessment under Section 148/147 were initiated by the ld. Assessing Officer on non-existing facts because ultimately the Assessee has been able to explain that the income which was believed to have escaped assessment was explainable but some other additions were made under the assessment order” ? - HELD THAT:- As tribunal being the last fact finding authority has not given any cogent reason for reversing the finding recorded by CIT(A) in para no.5.3. Solely on that ground, we set aside the order of the tribunal and remit the matter back to the tribunal. It is made clear that we are not commenting on any of the judgments relied by the assessee.
The tribunal will reconsider the judgments keeping in mind, the judgment of Supreme Court, High Court as well as judgment of the tribunal itself. We are not answering the issue and the matter is remitted back as stated above. It will be open for the tribunal to decide the issue in accordance with law.
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2018 (4) TMI 1882
Disallowance of payment on account of EDO Charges - allowable expenditure u/s 37 or penal in nature as interest has been charged by concerned authority for delay - AO has disallowed the same considering it penal in nature - HELD THAT:- License the agreement allows assessee to make payments in installments subject to making an additional payment at 12% per annum on the unpaid portion of the amount - in case of any delay in payment of instalments in the manner agreed upon, as on due date, additional interest of 3% per annum would be chargeable, which assumes the nature of penalty.
CIT (A) allowed interest paid by assessee as per the agreement at 12% as a part of business expenditure however disallowed interest paid over and above 12%, as additional payment of 3% is not covered in the normal course of the payment by assessee. It was held that the additional interest of 3% is penal in nature for failure to make payment of installment on time. No infirmity in such observation of Ld. CIT (A) - Decided against revenue.
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2018 (4) TMI 1881
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Petitioner filed Certificate issued by IDBI Bank as required under Section 9(3)(c) of the Code and also filed Affidavit stating that no dispute has been raised by the Corporate Debtor - The Counsel for the Corporate Debtor appeared for the two hearings on 13.03.2018 and 19.03.2018, failed to appear on 03.04.2018, 05.04.2018, 13.04.2018 and 17.04.2018. Since the date of default was wrongly mentioned in the Petition the Counsel for the Petitioner was directed to rectify the defect in the Form 5 and serve a copy on the Corporate Debtor. Accordingly, the Petitioner complied with the direction and filed proof of service, however on 17.04.2018 also there was no representation on the side of the Corporate Debtor.
This Bench having satisfied with the Application filed by the operational creditor which is in compliance of provisions of section B & 9 of the Insolvency and Bankruptcy Code admits this Application declaring Moratorium.
Petition allowed.
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