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Showing 1 to 20 of 2168 Records
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2018 (5) TMI 2173
Seeking a direction in favour of the applicant for payment of dues under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 - priority of dues against the statutory as well non-statutory secured and non-secured debts including on assets subject to mortgage or pledge - HELD THAT:- In the present case, as already noted by this court, the OL invited claims on 23.01.2004. Thereafter the claims were processed and payments were released in favour of those whose claims were accepted by order dated 27.09.2005. Reference may be had to the said order dated 27.09.2005. The said order noted that there are 770 workmen who have lodged their claims before the OL. Total of these claims add up to Rs.5.04 crores. The court accepted that the claims of the worker would to the tune of Rs.3.40 crores. There were claims of three secured creditors, namely, Canara Bank, HFC and Essenda Finanze Pvt. Ltd. which were for Rs.374 lacs, Rs.120 lacs and Rs.4 lacs. Noting that the OL has Rs.3.86 crores, the court ordered distribution of the fund to the secured creditors and workers on pari passu basis in terms of Sections 529 and 529A of the Act.
In the rejoinder that was filed by the applicant to the reply of the OL, the applicant has attached a copy of a communication dated 18.06.2004 which was allegedly sent to the OL. Unfortunately this document has been filed alongwith the rejoinder and the OL has not been able to respond to the same. There is also nothing to show that this document was served on the OL. It is further stated in the letter that the dues are likely to the tune of Rs.50 lacs, which are pending and are not deposited by the respondent company. As already noted, this letter was not in response to claims invited by the OL. Even if such a letter had been received by the OL, it cannot be a substitute for the statutory procedure which exist for inviting claims from the creditors of the respondent company.
A liquidator has to give notice inviting creditors, who have not proved their debts. As per Rule 151, the affidavit proving a debt shall contain or refer to a statement of account and shall be in Form 66.
The applicant is only entitled to the amount that is now left with the OL, namely, a sum of Rs. 5,76,162/- or about. The applicant cannot be permitted to disturb the position/steps which have been taken by this court way back in 2005. The applicant has merrily taken five years to file its first application attempting to prove its dues. Thereafter, the applicant had withdrawn the said application and has now filed the present application in 2015. In view of the settled legal position, the applicant would be entitled to only the amount now remaining with the OL.
Application allowed.
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2018 (5) TMI 2172
Seeking grant of Regular Bail - misappropriation of money for illegal monetary gains after demonetization - Conspiracy with Ashish Kumar, Bank Manager of Kotak Mahindra Bank, one Chartered Accountant and one mediator who used to bring money to the bank to earn huge profits by converting black money in the form of old demonetized currency into new currency notes - HELD THAT:- From the statements of these two witnesses of the prosecution, it is evident that 10% commission of Yogesh Mittal was deposited in the various firms from where approximately INR 8 crores was transferred to the two firms of petitioner namely Shrinivas Enterprises and Jai Jinendra Sales Corporation over to the firms/companies of Govind Babu and Naveen Somani in discharge of the liability of Yogesh Mittal. Petitioner, if at all is a beneficiary for a sum of INR 2 lakhs the petitioner has no role in the deposit of cash in the accounts of Raj Kumar Goel or Yogesh Mittal from which demand drafts were made which were recovered from Kamal Jain, CA of Rohit Tandon.
Evidence is documentary in nature and the trial is likely to take some time. Hence, this Court deems it fit to grant bail to the petitioner. It is, therefore, directed that the petitioner be released on bail on his furnishing a personal bond in the sum of INR 1 lakhs with one surety of the like amount to the satisfaction of the learned Trial Court/CMM further subject to the condition that the petitioner will not leave the country without prior permission of the Court concerned and in case of change of residential address the same will be intimated to the Court concerned.
Petition disposed off.
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2018 (5) TMI 2171
Change in classification of product from 94060091 to 44121000 - fabricated material - HELD THAT:- The limited issue involved in this case is classification of the fabricated material which is rightly classifiable under 94060091 and the same is approved - the departmental appeal is allowed.
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2018 (5) TMI 2170
Addition u/s 68 - assessee has shown the amount received as “share capital and share premium”, while the other party has shown it as “deposits” - share subscriber has accounted the same as “deposits” in the books of account and not as “share investment” - HELD THAT:- This is a matter requiring clarification only. We also notice that the AO has called for explanations on 27-03-2014 and the assessment order has been passed on 31.03.2014. Hence we are of the view that the assessee may be provided with one more opportunity to prove the cash credits. Accordingly we set aside the order passed by CIT(A) on this issue and restore the same to the file of the AO for examining it afresh.
Disallowance of Sales promotion expenses for non-deduction of TDS - DR submitted that the amount cannot be allowed even if TDS was deducted, if the expenditure is hit by Explanation to sec. 37(1) - HELD THAT:- We find merit in the submissions of Ld D.R. With regard to the disallowance we notice that the AO did not furnish the details of those expenses and did not also mention as to how those expenses were hit by the Explanation given u/s 37(1) of the Act. We notice that the AO has made only general observations. We notice that the CIT(A) has confirmed the disallowance with general observations. Hence both the disallowances require fresh examination at the end of AO. As submitted by D.R, the amount of Rs.6.57 lakhs cannot be allowed even if TDS was deducted if the expenditure is hit by Explanation to sec. 37(1) of the Act. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining it afresh.
Disallowance of workshop expenses - Since the assessee did not produce supporting evidences, the AO disallowed the same - HELD THAT:- We notice that the assessee has failed to furnish the evidences to prove the genuineness of claim. Before Ld CIT(A) also, the assessee has furnished Ledger account copies only. These are not sufficient to prove the genuineness of claim. Though the Ld A.R has contended that TDS has been deducted from the above said payment, yet we are of the view that it is the duty of the assessee to explain the nature of services offered by Shri Sardar Singh Kattar Singh towards the payment of Rs.39.00 lakhs and genuineness of expenses. Accordingly we restore this issue to the file of the AO for examining this issue afresh and accordingly the order passed by CIT(A) is set aside. The AO may take appropriate decision in accordance with law after examining the evidences that may be furnished by the assessee.
Disallowance of Sundry Balances written off by the assessee - Since the assessee did not prove that the above said amount was offered as income in the earlier years, the AO disallowed the claim. - AR submitted that all the above said amount has been offered as income in the earlier years and in support of the same, he invited our attention to the copies of ledger accounts placed in the paper book, accordingly he prayed for an opportunity to demonstrate the same before the AO - HELD THAT:- Having regard to the submissions made by Ld A.R, we are of the view that there is merit in his submissions. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining this issue afresh. AO may take appropriate decision in accordance with law after examining the evidences that may be furnished by the assessee.
Preliminary expenses u/s 35D - AO noticed that provisions of sec. 35D limits the deduction to 5% of the paid up capital. Accordingly the AO restricted the claim to Rs.1.10 lakhs and disallowed the remaining amount - HELD THAT:- Plea of the Ld A.R is that the expenditure related to Training and Development and the said claim has not been examined by the AO. We find merit in the said argument. Hence this aspect requires examination at the end of AO. D.R pointed out the observations of Ld CIT(A) that the Training and development expenses relate to FY 2007-08 also and submitted that if it is not related to the year under consideration, the same should be disallowed. There is merit in this contention of D.R also. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining this issue afresh.
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2018 (5) TMI 2169
Rejection of claim for grant of parity to Assistant Public Prosecutors, in the matter of retirement age, with Public Prosecutors in the State - HELD THAT:- The fact that Assistant Public Prosecutors are considered as officers of the Court as in the case of Public Prosecutors, can be no basis to equate them with the judicial officers whose method of appointment and conditions of service are distinct. The issue on hand cannot be decided merely on the basis of comparison of the nature of duties and functions of Public Prosecutors and Assistant Public Prosecutors.
As regards the disparity in the age of superannuation of the Assistant Public Prosecutors appointed on or before 31st March, 2013 and those who joined on or after 1st April, 2013, the said contention is also devoid of merits inasmuch as the conditions of service of the concerned set of Assistant Public Prosecutors is distinct. In that, those appointed on or before 31st March, 2013 are governed by the statutory pension scheme under the Service Rules as in the case of other government employees; and those appointed on or after 1st April, 2013 are governed by the new Contributory Pension Scheme made applicable to all the government employees and not limited to Assistant Public Prosecutors. Assistant Public Prosecutors are only a small Section of the genre of State Government employees-be it appointed prior to 31st March, 2013 or on or after 1st April, 2013, either governed by statutory Pension Scheme or the new Contributory Pension Scheme, as the case may be. Be it noted, the cut-off date of 1st April, 2013 for introducing the new Contributory Pension Scheme by the State Government is not the subject matter of challenge in the present case.
The Respondent State is agreed upon that accepting this offer would create anomaly, discrimination and hardship to the rest of the government employees appointed prior to 1st April, 2013 as they all will retire at the age of 56 years. In any case, this is a policy matter. It is best left to the State Government. It will be a different matter if the Government accepts the offer given by the Appellant on behalf of its members.
This appeal is devoid of merits and hence the same is dismissed.
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2018 (5) TMI 2168
Relief granted to discharge the liability towards income tax in 12 equal monthly instalments - As submitted at the Bar by the appellant that the appellant had already remitted the first instalment within time and they now seek indulgence of this Court to enlarge the instalments to 24, pointing out the financial difficulties faced by them - HELD THAT:- Anyhow, taking note of the huge liability cast upon the appellant, we are of the view that the appellant should be given 20 instalments to pay off the balance amount due after the deduction of the payment already effected.
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2018 (5) TMI 2167
Disallowance of deduction u/s 36(1)(viii) - special reserve created for income from eligible business of long term finance for industrial and agricultural development and for development of infrastructure facility for construction or purchase of residential house - HELD THAT:- As following the consistent view of the Tribunal in assessee’s own case for 2009–10. [2017 (11) TMI 1812 - ITAT MUMBAI] we allow assessee’s claim of deduction u/s 36(1)(viii), thereby, deleting the addition made as held that the banks will also be covered by the inclusive definition given for the expression “financial Corporations” in sec. 36(1)(viii) of the Act. Consistent with the view taken therein, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to allow the claim. - Decided in favour of assessee.
Disallowance u/s 14A r/w rule 8D - basic contention of the assessee is, since the assessee being a Bank the shares and securities are held as stock–in–trade and it constitutes a business activity, hence, no disallowance under section 14A of the Act should be made - HELD THAT:- Notably, in assessment year 2009–10 [2017 (11) TMI 1812 - ITAT MUMBAI] while considering similar dispute relating to disallowance under section 14A, the Tribunal in order has restored the issue to the Assessing Officer. It is also relevant to mention, in the meanwhile, the judgment of the Hon'ble Supreme Court in the case of Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] has been delivered. It is to be noted that in the said decision the Hon'ble Supreme Court has specifically dealt with the decision of the Hon'ble Punjab & Haryana High Court in case of State Bank of Patiala [2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT] on identical issue.
Undisputedly, the aforesaid decision of the Hon'ble Supreme Court having been delivered recently, the Departmental Authorities while deciding the issue did not have the benefit of it. In view of the aforesaid, we restore the issue to the file of the Assessing Officer for deciding afresh after considering the submissions made by the assessee and applying the ratio laid down by the Hon'ble Supreme Court in case of Maxopp Investment Ltd. (supra) and specifically keeping in view the observations made in Para–39 and 40 of the said judgment. This ground is allowed for statistical purposes.
Disallowance of deduction claimed u/s 36(1)(viia)in respect of provisions of bad and doubtful debts - HELD THAT:- Deduction claimed by the assessee u/s 36(1)(viia) of the Act is not as per the provisions made in the books of account. A reading of the aforesaid provision, makes it clear that the deduction allowable is in respect of the provision made for bad and doubtful debt not exceeding certain amount as provided under sub–clause (a) of the said provision. That being the case, assessee’s claim that 10% of the aggregate average advances made by the Rural Branches and 7.5% of the total income has to be allowed as deduction irrespective of the provisions made in the books of account is not acceptable in view of the ratio laid down by the Hon'ble Punjab & Haryana High Court in State Bank of Patiala [2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT]
Accepting the without prejudice submissions made by assessee we hold that the deduction under section 36(1)(viia) of the Act to the extent of provision made and available in the books of account, whether made in the current previous year or in the preceding previous years, is allowable as held in Sarvodaya Sahakar Bank Ltd [2014 (5) TMI 1182 - ITAT AHMEDABAD] - AO is directed to examine the facts and compute the deduction u/s 36(1)(viia) of the Act accordingly. This ground is partly allowed for statistical purposes.
Disallowance of amortization of lease premium paid in respect of various lease hold properties - HELD THAT:- As could be seen from the facts on record, this is a recurring dispute between the assessee and the Department from the preceding assessment years. While deciding identical issue arising in assessee’s own case for assessment year 2004–05 [2017 (7) TMI 1289 - ITAT MUMBAI] has sustained the disallowance by concurring with the view expressed by the Departmental Authorities. Ground raised is dismissed.
Accrual of income - decision of the Departmental Authorities in including the profits of the foreign branches in the income of the assessee - HELD THAT:- As could be seen, the disputed issue relates to taxability of the income of the foreign branches in India. Notably, while deciding identical issue arising in assessee’s own case in assessment year 2009–10, [2017 (11) TMI 1812 - ITAT MUMBAI] followed its order passed in assessee’s own case for assessment year 2004–05 and held if the Assessee has permanent establishment abroad, then, the Assessee would have to produce evidence regarding payment of taxes pertaining to the income of these establishments abroad. On production of such evidence, the Assessee would be entitled to the benefit. That evidence was always available and as noted by the Commissioner of Income Tax (Appeals) and the Tribunal. In the circumstances, the authorities did nothing but follow their earlier orders based on identical facts and circumstances. The finding of fact, therefore, cannot be termed as perverse or vitiated by any error of law apparent on the face of the record. The Appeal does not raise any substantial question of law. It is devoid of merits and is, accordingly, dismissed.
Disallowance of broken period interest paid - AO noticing that the assessee has claimed deduction towards payment of broken period interest on purchase of securities by treating it as revenue expenditure called upon the assessee to justify its claim - HELD THAT:- It is evident on record, assessee’s claim of broken period interest paid has been disallowed by the Assessing Officer on the reasoning that the assessee is not offering broken period interest on accrual basis.
In our view, the aforesaid reasoning of the Departmental Authorities do not stand to reason. If the assessee is consistently following an accounting method as per which the broken period interest is offered as income when it is received, the broken interest paid while purchasing the securities cannot be disallowed merely on the reasoning that the assessee is not showing the broken period interest income on accrual basis. As could be seen, in case of State Bank of India [2016 (8) TMI 963 - BOMBAY HIGH COURT] after following the decision of the said Court in case of American Express International Corporation [2002 (9) TMI 96 - BOMBAY HIGH COURT] has rejected Revenue’s appeal against allowance of assessee’s claim of deduction in respect of broken period interest paid. While doing so, the Hon'ble High Court has also upheld the decision of the Tribunal in holding that the broken period interest income has to be taxed on due basis instead of accrual basis. It is evident, the aforesaid decision of the Hon'ble Jurisdictional High Court was neither referred to nor examined by the Departmental Authorities while deciding the issue. In view of the aforesaid, we restore the issue to the Assessing Officer for deciding afresh keeping in view the decisions of the Hon'ble Jurisdictional High Court referred to above and only after due opportunity of being heard to the assessee. This ground is allowed for statistical purposes.
Disallowance on account of loss arising out of payment made to Lehman Brothers Special Financing Inc. - HELD THAT:- Undisputedly, the assessee has entered into forward contract with its customers in respect of derivative transactions. It is also a fact on record that LBSFI was taken as a counter party in order to hedge the forward contract entered with the customer. In fact, Commissioner (Appeals) while dealing with the disputed issue has given a categorical finding that the payment made on arbitration award and incidental expenses are related to hedging agreement.
Thus, once the payment made by the assessee is treated to be towards hedging agreement it cannot be termed as speculative transaction. Explanation 1 to the proviso to section 43(5) of the Act excludes the transactions relating to trading in derivatives carried on by the Banks from the ambit of speculative transactions. AR has demonstrated before us that whenever there is profit from forward contracts assessee has offered it as business income and the Department has accepted it. If that is the case, the loss from forward contract cannot be treated as speculation loss. In any case of the matter, there is no dispute to the fact that the payment by the assessee to LBSFI is in pursuance to an award passed by a International Court of Arbitration, therefore, it is allowable as business expenditure. Thus, looked at from any angle assessee’s claim is allowable.
Allowing credit for TDS of foreign branches - HELD THAT:- As observed that as per section 91 of the Act if any person residing in India proves that in respect of his income which accrued or arose in the relevant previous year outside India and in respect of which he has paid tax in any country with which there is no double taxation avoidance agreement, then, such person shall be entitled to deduction from the income tax payable by him a sum calculated on such doubly taxed income at the Indian rate of tax or the rate of tax of the same country whichever is lower or at the Indian rate of tax if both the rates are equal. He, therefore, directed the AO to decide the issue as per law. As could be seen from the observations of the learned Commissioner (Appeals), he has simply issued a direction to the Assessing Officer to decide the issue of credit of TDS keeping in view the provisions of section 199 and section 91 of the Act. We fail to understand how the Department can be aggrieved with the aforesaid directions of the learned Commissioner (Appeals). In view of the aforesaid, ground raised is dismissed.
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2018 (5) TMI 2166
Disallowance u/s 14A read with Rule 8D - disallowance of expenditure incurred for earning exempted income - Assessee added no expenditure was incurred in relation to earning exempt income - HELD THAT:- It has been consistently held by various Hon'ble Courts that if the assessee possesses sufficient capital and reserves as well as interest free funds and if there is no finding by the revenue authorities that interest bearing funds have been applied for investing in shares and securities, it has to be presumed that the assessee has invested its own capital and reserves i.e. interest free funds for making the investments.
We find support from the judgment of Reliance Utilities [2009 (1) TMI 4 - BOMBAY HIGH COURT] and HDFC Bank [2014 (8) TMI 119 - BOMBAY HIGH COURT] We, therefore, respectfully following the above judgments of the Hon'ble Courts, are of the considered view that the learned Commissioner of Income Tax (Appeals) has rightly deleted the interest disallowance.
As regards the disallowance of administrative expenditure we find no reason to interfere with the finding of the learned Commissioner of Income Tax (Appeals) who has sustained the addition by keeping in view the investments made in quoted shares as well as unquoted shares as well as looking to the aspect that the assessee is engaged in the business of purchase and sale of shares.
Disallowance of penalty levied by Stock Exchange for procedural defaults such a delay in submission of return, etc. - Allowable business expenditure or not? - HELD THAT:- From a perusal of the finding of CIT (Appeals) as well as going through the submissions given by the assessee in the light of the judgment of the Hon'ble High Court of Bombay in the case of CIT vs The Stock & Bond Trading Company [2011 (10) TMI 172 - BOMBAY HIGH COURT] we are of the considered view that the assessee made no offence prohibited by law which can be contemplated to be covered under Explanation to section 37 of the Act and, therefore, the payment of penalty made by the assessee to the Stock Exchange is a regular business expenditure and the impugned disallowance has rightly been deleted by the learned Commissioner of Income Tax (Appeals). We uphold the same.
Disallowance of prior period expenses - HELD THAT:- As we find that the payment related to service tax and the necessary proof of payment was placed on record. Therefore, as the liability has crystalised during the year, the learned Commissioner of Income Tax (Appeals) has rightly allowed the assessee’s claim of expenditure - No interference is, therefore, called for in the findings of CIT(Appeals).
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2018 (5) TMI 2165
Undisclosed interest - expenditure relating to the payment of interest and bad debts - While scrutinizing the seized material, AO found that the assessee has earned interest on loans and advances which have not been included in the returned income - HELD THAT:- There is no denying that voluminous documents were impounded during the search proceedings. It is equally true that the seized material contained financial statements of the assessee and its group members. As mentioned elsewhere, these financial statements were in the form of consolidated trading profit and loss account and balance sheet of the assessee and its family members. There is no denying that on the basis of notings found in these seized material, the Assessing Officer has made various additions.
When seized financial statements were made the basis for making additions, then the entries relating to expenditure in the form of interest payment and also bad debt written off cannot be ignored. The Revenue cannot add the credit side and ignore the debit side of the same document.
We direct the Assessing Officer to allow the expenditure relating to the payment of interest and bad debts - AO is further directed to allocate the balance interest income if any in the ratio of 60:40 as done in the earlier year between the assessee and his brother Shri V.K. Gupta. Thus, Ground No. 4 of assessee’s appeal is treated as allowed for statistical purposes.
Addition of interest - The family group has already shown interest income of Rs. 2.06 crores in assessment year 2006-07 and the same has been accepted as such in the appellate order for assessment year 2006-07. Therefore, to this extent, deletion by the ld. CIT(A) is justified.
In so far as the balance interest the same is calculated @ of 30% per annum on loans and advances of Rs. 5.49 crores which was given in assessment year 2006-07. Since in assessment year 2006-07 the addition of Rs. 5.49 crores have been deleted by the appellate authorities, there is no question of charging any interest on the said amounts. To this extent, deletion of Rs. 1.64 crores is upheld. The balance interest of Rs. 2.43 crores can also not be sustained as the Assessing Officer has presumed that the assessee must have given loan of Rs. 8.12 crores to various persons. Hence, deletion of the same is justified as the same has been added on assumption, surmises and conjectures. Accordingly, Ground No. 2 of Revenue’s appeal is dismissed.
Undisclosed amount received in sale property - HELD THAT:- Considering the fact that the assessee was only holding 1/6th share in the said property, in our considered opinion, only 1/6th of the undisclosed sale consideration should be added in the hands of the assessee. Exhibit 210 shows that the assessee has incurred expenditure of Rs. 14,91,407/- on the said property and Exhibit 213 shows that expenditure of Rs. 7,16,961 has been incurred. After deducting these expenses, the Assessing Officer is directed to add 1/6th share from the balance undisclosed consideration to the income of the assessee. To this extent, grievance of the assessee is allowed.
Determination of Tax Rate - HELD THAT:- Since addition has been made as undisclosed income of the assessee, no benefit of special tax rate applicable to long term capital gain can be given. This plea of the assessee is dismissed.
Loans appearing in the seized Ledger - HELD THAT:- There is no denying that as per the consolidated balance sheet of earlier years, the assessee was having funds amounting to Rs. 11.11 crores. It is equally true that during the year, the assessee has received on money on the sale of property R-57, GK-1 and the same has been discussed in detail elsewhere. To this extent, the assessee has available funds with him. In so far as the balance amount of Rs. 14.85 crores is concerned, the same has been added only on the basis of the slips found at the time of search. It is true that in one of the slips noting are in the name of STPL which is nothing but trade name of the group of the assessee. In our understanding of the facts, one cannot give loan to oneself. Other names mentioned in the slip relate to the loans given to SRS and Realtech which are clear from the impounded documents. We, therefore, do not find any error or infirmity in the finding of the ld. CIT(A). Ground No. 1 is accordingly dismissed.
Undisclosed investment in property - Taking a leaf out of the notings in these loose sheets, the Assessing Officer formed a belief that the assessee has purchased property - HELD THAT:- It is true that these sheets were found from the premises of the assessee. It is equally true that the notings in the said loose sheets are neither here nor there. No logical inference can be drawn from the noting in these loose sheets.
The loose sheet of papers are wholly irrelevant as evidence being not admissible u/s. 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value - See V.C. Shukla [1998 (3) TMI 675 - SUPREME COURT]
Charging of interest u/s 234A - HELD THAT:- As decided in assessee own case charging of interest u/s 234 of the Act is mandatory and consequential to the. appeal effect order. However, in the present case, the CIT (Appeals) has held that the interest u/s 234A not to charged for the period upto which the assessee was not provided copy of the seized material and in our humble understanding of law, this conclusion of the CIT (Appeals) is in accordance with the provisions of the Act and, therefore, we are unable to see any valid reason to interfere with the same and hence, we uphold the same.
Whether undisclosed income of any assessee for any year has to be computed by comparing notings on the seized paper with returned income filed by the assessee? - As per section 132(4), the onus lies upon the assessee to explain them vis a vis their returned income. This onus has not been discharged. No merit in these submissions of the ld. DR because it is the settled proposition of law that a document should be read as a whole. No doubt the presumption is against the assessee in so far as any material found from the premises of the assessee is concerned, but at the same time, that material has to be considered as a whole.
We find that the AO has taken support from the seized material and added the credit side as income of the assessee. In our considered opinion, AO should have also considered the debit side of the seized material. The Assessing Officer cannot blow hot and cold in the same breath. If the presumption is against the assessee in so far as the credit entries are concerned, then the presumption is also for debit side of the sheets impounded during the course of search. Hence, no interference is called for with the findings of the first appellate authority.
Assessee appeal allowed.
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2018 (5) TMI 2164
Use of electronic record as evidence - Admission of additional ground - additions based on the materials retrieved from the CPU of the computer as seized by the Department during the course of search - as argued Department did not comply with the conditions mentioned u/s 65B(4) of the Evidence Act, when electronic record seized was used as evidence against the assessee - Whether by virtue of the provisions of clause (iib) of Section 132(1) of the Income Tax Act, 1961 adopting the definition of `electronic record’ supplied by Section 2(1)(f) of the Information Technology Act, 200 to the data seized from a computer, the threshold determination related to the admissibility and legitimacy of such data in whatever form has not to be undertaken in accordance with law and in particular, the mandatory prescription of Sections 65A, 65B of the Evidence Act, 1872 read with Section 93 and the Second Schedule of the Information Technology Act, 2000; before raising the presumption under sub-section (4-A) of Section 132 and also before using a statement taken from any person on the basis of such seized data against the assessee under sub-section (4) of Section 132?”
HELD THAT:- The additional ground raised is a pure legal issue and goes to the root of the matter since the major additions are based on the materials that are retrieved from the CPU of the computer that was seized by the Department during the course of search.
The Hon’ble Supreme Court in the case of Anvar P.V. v. P.K.Basheer & Ors [2014 (9) TMI 1007 - SUPREME COURT] had held that if electronic record is being used as evidence, the conditions mentioned u/s 65B(4) of the Evidence Act has to be complied with.
The Hon’ble Supreme Court in the case of T.K.Sanalkumar v. CIT Cochin [2012 (7) TMI 1162 - SC ORDER] while disposing off SLP filed by the assessee, had directed the Commissioner to consider a ground which is identical to the additional ground raised by the assessee. The additional ground raised by the assessee is a legal issue, which is very vital for adjudicating the case, therefore, in the interest of justice and substantial cause, we admit the additional ground raised.
Since the additional ground raised was not considered by the lower authorities, we restore the additional ground for adjudication to the files of the Assessing Officer. As we have restored the adjudication of the additional ground to the files of the A.O., the other issues which are there in these appeals are also to be adjudicated by the A.O. afresh.
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2018 (5) TMI 2163
TDS credit deducted in respect of interest on FDR - AO disallowed claim as no such income has been shown by the assessee - CIT(A) deleted the addition - HELD THAT:- CIT(A) has allowed the claim of the assessee by following decisions of Coordinate Benches of this Tribunal in assessee’s own case for the assessment years 2009-10 to 2012-13 [2017 (5) TMI 1817 - ITAT JAIPUR]
There is no denial of the fact that the interest income on which the TDS in question was deducted by the bank was in respect of the funds received by the assessee from HUDCO in the fiduciary capacity on behalf of the State Government for disbursement. The fact in the year under consideration are same as it was for the earlier assessment year followed by the ld. CIT(A). Accordingly, no error or illegality in the impugned order of the ld. CIT(A) qua this issue.
PF and ESI deposits beyond the prescribed time limit - HELD THAT:- Admittedly, contribution to PF & ESI has been paid by the appellant, in all instances, before the due date of filing the return of income u/s 139(1). This fact is therefore, not in dispute.
Thus as relying on State Bank of Bikaner & Jaipur [2014 (5) TMI 222 - RAJASTHAN HIGH COURT] as well as in case of Jaipur Vidyut Vitran Nigam Ltd. [2014 (1) TMI 1085 - RAJASTHAN HIGH COURT] Assessee entitled to deduction in respect of contribution to ESI and PF as the same has been deposited prior to the filing of return of income u/s 139(1). Revenue appeal is dismissed.
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2018 (5) TMI 2162
Dishonour of Cheque - settlement arrived at between the parties - HELD THAT:- The settlement as it forms a part of the order, makes it clear that the parties shall abide by the same and not create any impediment in its implementation.
It is also agreed that as there is a settlement, this Court may quash the criminal proceedings initiated by the respondent against the appellant being FIR No. 239 dated 17.6.2007 instituted for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B, IPC and FIR No. 43 dated 30.4.2016 for the offences punishable under Section 174-A, IPC, and also the Complaint Nos. 181 dated 30.5.2017 and 182 dated 30.5.2007 both instituted under Section 138 of the N.I. Act by the appellant against the respondent. All proceedings are accordingly quashed.
As the FIRs and the complaint petitions have been quashed, the Passport of Iqbal Singh Sabharwal shall be returned to him - appeal disposed off.
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2018 (5) TMI 2161
Allowable revenue/business expenses - penalty levied by the NSE/NSDL for committing irregularities in conduct of business having regard to Rules, Bye-laws and Regulations of Exchange - HELD THAT:- We find that the issue is no longer res integra.
As in the case of CIT vs. The Stock and Bond Trading Company [2011 (10) TMI 172 - BOMBAY HIGH COURT] as held that payments made by the assessee to the Stock Exchanges for violation of their regulations are not akin to an offence which is prohibited by law, as contemplated in Explanation to section 37 - we are inclined to entertain the appeal of the assessee for admissibility of the expenditure on this score. Consequently, the addition/disallowance made by the Assessing Officer in this ground is directed to be deleted.
Addition u/s 14A - Expenditure incurred on earning exempt income - HELD THAT:- As in its own case concerning A.Y. 2012-13 [2011 (10) TMI 172 - BOMBAY HIGH COURT] has restricted the amount of disallowance to the extent of exempt income earned. In parity, we restrict the disallowance under section 14A to the extent of exempt income.
Nature of expenses - Annual Maintenance Charges incurred disallowed - HELD THAT:- Annual Maintenance charges incurred are in the nature of periodical renewal of licence for meeting day-to-day need concerning software used for carrying on the highly complex stock market transactions. We thus agree with the plea of the assessee that Annual Maintenance expenses of such nature corroborated by invoices/bills are revenue in nature in contrast to the capital expenditure held by the revenue. Thus, AO is directed to delete the addition on this score.
Disallowance of Mark to Market Loss - loss has been incurred by the assessee in open contracts of futures and options segment and it is a case of the assessee that the loss in the open contracts has been booked as per accounting standard prescribed by ICAI and the accounting policy has been followed consistently - HELD THAT:- We find ourselves in agreement with the plea on behalf of the assessee that Mark to Market Loss on futures and options contract is not a notional loss and the loss has crystallised at the end of the year notwithstanding the continuance of the contract. We also note the plea of the assessee that it has made entries following accounting standard AS-11 of ICAI. As in the case of CIT vs. Woodward Governor India Pvt. Ltd, [2009 (4) TMI 4 - SUPREME COURT] has considered such loss as allowable and not of contingent in nature. In the light of the aforesaid, the Assessing Officer is directed to delete the disallowance towards Mark to Market Losses in open contracts of futures and options.
Nature of expenses - software charges - revenue or capital expenditure - HELD THAT:- As claimed that ODIN software are application software which requires renewals and upgradation from time to time. This being so, in parity with the decision of co-ordinate bench of Mumbai Tribunal in the case of Emkay Share & Stock Brokers Limited [2012 (9) TMI 124 - ITAT, MUMBAI] on behalf of the assessee, we accept the plea of the assessee for allowability of such expenditure on application software as revenue expenditure. AO is accordingly required to cancel the aforesaid addition/disallowance.
Short deduction of tds - Disallowance of various expenses u/s 40(a)(ia) - amount includes payment to NSDL for transaction charges and payment to Stock Exchange towards annual charges and others & VSAT charges Rs. 2,00,000/-. - HELD THAT:- While making all these payments towards various expenses, the assessee has, in fact, deducted TDS albeit at a lower rate as controverted on behalf of the revenue. Thus, there is no total failure to withhold TDS on such payments.
A short deduction of tax at source by itself does not attract the provisions of section 40(a)(ia) of the Act. Section 40(a)(ia) can be invoked only when two conditions, namely (i) that tax is deductible at source and (ii) such tax has not been deducted, is satisfied. In a situation where tax has been deducted by the assessee under a wrong provision of TDS and there is a shortfall, section 40(a)(ia) disallowance cannot be made as consistently held in long line of judicial precedents including CIT vs. S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT]. Therefore, this ground of appeal is allowed. AO is directed to delete the disallowance made by invoking section 40(a)(ia) of the Act.
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2018 (5) TMI 2160
Levy of Entertainment Tax - carriage of passengers on aerial ropeway to Naina Deviji Temple under the Himachal Pradesh Entertainment Duty Act, 1968, more particularly, under the amendment, which was carried vide H.P. Entertainments Duty (Second Amendment) Act, 1999 (Act No. 3 of 2000) - whether the State Government has the competence to issue notification imposing entertainment tax on ropeway? - invocation of principle of ejusdem generis.
HELD THAT:- The aerial ropeway of the petitioner is providing entertainment and, therefore, the only question that remains for consideration is whether in the absence of any provision in the H.P. Aerial Ropeway Act, the State by amending the Entertainments Duty Act can recover the same.
As observed by the Hon'ble Supreme Court, only Entries 45 to 66 of the Seventh Schedule are those that can be taxed. The Aerial ropeway Act was enacted to authorize, facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments.
The mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment.
It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying different meanings. Even though at sometime two different words are used in one and the same statute to convey the same but i.e. exception rather than the rule. The word "entertainment" has to be understood in the contest that was intended by the legislature with respect to the Entertainments Duty Act, keeping in mind the purpose for which the statute was enacted - there is no provision in the H.P. Aerial Ropeway Act to levy tax or duty as this Act only authorizes to facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh, whereas on the other hand, Entertainments Duty Act has been specially enacted by the State under Entry 62 of List-II for imposition of taxes and duties on entertainments.
The aerial ropeway is providing entertainment and, therefore, in such circumstances, the doctrine of ejusdem generis cannot be pressed into service to defeat the dominant statutory purpose of the entertainment tax. Merely because it is the aerial ropeway, it does not mean that it can only be taxed under the Aerial Ropeway Act and not under the Entertainments Duty Act.
Even otherwise, the definition of "entertainment" as originally defined and even thereafter it was amended would show that the same deals with all different aspects of entertainments like exhibition, performance, amusement, game, sport or race or lastly aerial ropeway. Thus, once each one of the words carries a separate and distinct meaning then obviously, the principle of ejusdem generis cannot be invoked.
Petition dismissed.
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2018 (5) TMI 2159
Correctness of Grant of bail to accused - Whether there are any supervening circumstances which would warrant the cancellation of the bail granted by the High Court? - Rape - false promises of marriage - complainant alleged that the Accused had been making false promises of marriage to her and was exploiting her continuously - HELD THAT:- In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in DOLAT RAM VERSUS STATE OF HARYANA [1994 (11) TMI 424 - SUPREME COURT] observed that The satisfaction of the court, on the basis of material placed on the record of the possibility of the Accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the Accused to retain his freedom by enjoying the concession of bail during the trial.
The Accused had the benefit of an order granting him anticipatory bail. The grant of anticipatory bail was cancelled principally on the ground that he had not disclosed the pendency of a prosecution against him in the 2G Spectrum case. The Court has been informed during the course of the hearing that the said prosecution has ended in an acquittal. Regular bail was granted by the High Court on 17 November 2017 in the present case. The second FIR which was lodged on 22 November 2017 is not, in our view, a supervening circumstance of such a nature as would warrant the cancellation of the bail which was granted by the High Court. The learned Counsel appearing on behalf of the Accused has submitted that the lodging of the second FIR, four days after the order of bail is merely an attempt to bolster a case based on a supervening event and that it suffers from vagueness and a complete absence of details.
The order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no cogent material to indicate that the Accused has been guilty of conduct which would warrant his being deprived of his liberty.
The quantum of the personal bond shall stand enhanced to Rs. 10 lakhs - Appeal disposed off.
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2018 (5) TMI 2158
Deduction u/s 80P - interest and dividend income earned From surplus fund parked in short term deposits with co-operative banks and nationalized banks - HELD THAT:- The assessee is a co-operative society engaged in the business of providing credit facilities to its members. We have perused the order in the assessee’s own case for A.Y 2012-13 as allowed assessee claim as relying on GOA VERSUS JAYALAKSHMI MAHILA VIVIDODESHAGALA SOUHARDA SAHAKARI LTD. AND DWARKA SOUHARDA CREDIT SAHAKARI LTD. [2012 (8) TMI 185 - ITAT PANAJI] and BULDANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. [2013 (12) TMI 237 - ITAT NAGPUR] appellant cannot be held as a cooperative bank, hence deduction claimed u/s 80P(2)(a)(i) cannot be denied to it I find that the A.O in the present AY has nowhere led any facts to show that banking facilities such as cheque books, drafts have been provided. Neither is it the case of the A.O that facilities have been provided to members of the general public without restricting on/v to its own members. On facts therefore the A.O has not demonstrated as to how the appellant qualifies to be a bank. Thus hold that the appellant is a cooperative society and not a cooperative bank and is therefore eligible for deduction u/s 80P(2)(a)(i). A.O is accordingly directed to allow the deduction claimed by the appellant - Decided against revenue.
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2018 (5) TMI 2157
Issuance of process under Section 204 Cr.P.C. and subsequent proceedings - accused persons residing at a place beyond the territorial jurisdiction of the learned Magistrate - nature of enquiry in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - Consequence of non-compliance with such requirement - Objection may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- It is long standing settled principles of law relating to the mode of exercising a statutory power by a Court when such power is conferred for the first time upon it. Lord Jessel M.R. observed in Taylor v. Taylor, that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed it means that no other mode is to be adopted.
Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence, subject to the provisions of Chapter XIV Cr.P.C., any Chief Judicial Magistrate is empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-section (2) of Section 12 Cr.P.C., an Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in force as the High Court may direct and the transferee Magistrate is under obligation to examine the complaint and his witnesses and only thereafter to issue the process - According to the settled principles of law, the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
Nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - HELD THAT:- Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an inquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.
Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as amended) under Section 19 of the Criminal Procedure (Amendment) Act, 2005 will invalidate or vitiate the order of process so issued? - HELD THAT:- It has already been settled that when an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.
Whether objections with regard to non-compliance of the amended provisions of sub-section (1) of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005 may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- The satisfaction of the learned Magistrate concerned that there is a sufficient ground for proceeding with the complaint either by way of examination of complainant and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C., is a condition precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of hearing the accused would only arise at a subsequent stage provided for in the later provisions of the Cr.P.C., or in other words, up to the stage of complying with the provisions of Section 204 Cr.P.C. the accused has no role to play. The question of making an application by the accused before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C. or a reconsideration of the material available on record is impermissible on receipt of summons approaching the Court for the reason that by then Section 203 is over and the learned Magistrate concerned has proceeded further to Section 204 Cr.P.C.
There are no hesitation to arrive at a conclusion that the first occasion for an aggrieved accused to raise objection for issuing summon against him comes after the provision of Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the learned Magistrate concerned taking cognizance of an offence issuing process without there being any allegation against accused or any material implicating the accused or any contravention of the provisions of Sections 200 and 202, the remedy lies in invoking Section 482 Cr.P.C.
The scope of application of the amended provision of Sub-Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure (Amendment) Act, 2005, in case of offences punishable under Sections 138/141 of the Negotiable Instruments Act, 1881 - HELD THAT:- Taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.
Thus, in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.
Application disposed off.
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2018 (5) TMI 2156
Penalty u/s 271C - Assessee questions assumption of jurisdiction to impose penalty based upon audit objection, assumption of jurisdiction to impose penalty; third, an assessee in default is liable for penalty under Section 271C is questionable and lastly that the bar of limitation in Section 275 is attracted - HELD THAT:- The record would reveal that the assessee had responded to the show cause notice by a letter/reply dated 19.12.2017 and followed it up with another letter dated 22.01.2018 as well as the follow up letter before proceeding further. The rights and contention of the parties are preserved. The Assessing Officer is directed to dispose of the representation within eight weeks from today.
Writ petition is disposed of in the above terms.
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2018 (5) TMI 2155
Suspension of petitioner - accepting illegal gratification - after the period of ninety day, petitioner’s suspension was not reviewed - HELD THAT:- In the facts and circumstances of this case, it is deemed appropriate to dispose of this petition with direction to first respondent to pass a speaking order on petitioner’s Representation of 28th March, 2018 (Annexure P-8 colly.) within a period of two weeks from today and to convey its fate to petitioner within a week thereafter, so that petitioner may avail of the remedies as available in law, if need be.
Petition disposed off.
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2018 (5) TMI 2154
Winding up of Company - company is unable to discharge its debts and is commercially insolvent - HELD THAT:- The company is indebted to petitioner, is unable to discharge its debts, is commercially insolvent and requires to be wound up.
It is ordered to pass appropriate orders directing respondent company be wound up under the provisions of Section 433 (e), 434 (1) (a) and 439 of the Companies Act, 1956 for its inability, neglect and failure to pay and discharge its admitted debs and liabilities - it is directed to appoint Official Liquidator, High Court of Judicature at Bombay as Liquidator of respondent company with all powers under the Companies Act, 1956/2013 including the power to take possession of all the assets, books of account, stock in trade, cash on hand, movable properties including furniture and fixtures as well as all immovable properties.
Petition allowed.
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