|
Advanced Search Options
Case Laws
Showing 21 to 40 of 2171 Records
-
2018 (5) TMI 2156 - DELHI HIGH COURT
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.
-
2018 (5) TMI 2155 - DELHI HIGH COURT
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.
-
2018 (5) TMI 2154 - BOMBAY HIGH COURT
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.
-
2018 (5) TMI 2153 - SUPREME COURT
Functus Officio of Industrial Tribunal/Labour Court after Enforcement of Arbitral Award - whether the Industrial Tribunal/Labour Court is functus officio after the award has become enforceable, and is thus, prevented from considering an application for setting aside an ex parte award? - HELD THAT:- Under the statutory scheme, the Labour Court/Tribunal is empowered to follow its own procedure as it thinks fit, meaning thereby, a procedure which is fit and proper for the settlement of the industrial dispute and for maintaining industrial peace. If a party fails to attend the Court/Tribunal without showing sufficient cause, the Court/Tribunal can proceed ex parte and pass an ex parte award. The award, ex parte or otherwise, has to be sent to the appropriate Government as soon as it is made and the appropriate Government has to publish it within 30 days of its receipt. The award thus published becomes enforceable after a period of 30 days of its publication - In case of an ex parte award, whether the Court/Tribunal can set aside the same after 30 days of its publication, is the question to be considered.
That an ex parte award can be set aside in case the Court/Tribunal is approached within 30 days of its publication Under Section 17 of the Act, is no more res Integra. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. [1980 (12) TMI 181 - SUPREME COURT], it has been held that Tribunal can exercise such powers, if it thinks fit, in the interest of justice. It has also been held that the Tribunal is endowed with such incidental or ancillary powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties, unless there is any express indication in the statute to the contrary.
The Court has unambiguously held that it is the power and duty of the Tribunal exercising its ancillary and incidental powers to set aside an award which is a nullity. In that process, the Tribunal is governed by the principles of Order IX Rule 13 of the Code of Civil Procedure. However, apparently, on facts, the Court came to the conclusion that the power to set aside an ex parte award remained only till the award had become enforceable Under Section 17A, viz., before the expiry of 30 days from the date of its publication Under Section 17.
Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award - It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.
The awards are remitted to the Labour Court for consideration as to whether there was sufficient cause for non-appearance of the management - application disposed off.
-
2018 (5) TMI 2152 - SUPREME COURT
Bail not granted, directing that the trial be concluded as far as possible within six months - whether there should be timelines for completing investigation? - HELD THAT:- There is clear need for timelines for completing investigation and for having in-house oversight mechanism wherein accountability for adhering to laid down timelines can be fixed at a different levels in the hierarchy.
To determine whether undue delay has occurred, one must have regard to nature of offence, number of Accused and witnesses, workload of the court and the investigating agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when Accused is in custody so that prosecution does not become persecution. Court has to balance and weigh several relevant factors. Though it is neither advisable nor feasible to prescribe any mandatory outer time limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution, there is certainly a need for in-house mechanism to ensure that there is no undue delay in completing investigation.
It is well established that authorization for such detention has to be given having regard to the progress in investigation. Even a Magistrate cannot authorise detention in police custody beyond 15 days. After judicial custody for more than 90 days in serious cases stipulated therein and 60 days in other cases, there is a provision for mandatory default bail requirement if there is delay in investigation beyond the said period - the need to lay down timelines for completing investigation with a view to give effect to the mandate of Article 21 of the Constitution.
The learned ASG directed to represent the Union of India - the Ministry of Home Affairs directed to have inter action on the subject with all the Central and State investigating agencies on or before May 31, 2018 either on video conferencing or in person. The points emerging from the inter action may be recorded and examined by an appropriate committee which may constituted for the purpose.
Put up the matter for further consideration on 3rd July, 2018.
-
2018 (5) TMI 2151 - SECURITIES AND EXCHANGE BOARD OF INDIA
Violation under SEBI Act - Ex parte - ad- interim order - not settling the accounts of inactive clients - Mis-utilization of client securities - inspection carried out by SEBI revealed that there is Non-settlement of funds of inactive clients, Improper use/Mis-utilisation of client funds - funds of the clients, having credit balance with the Broker, were utilized for allowing exposure to the clients having debit balance or were used by F6 for its own purposes - difference between the credit balance in the clients’ ledger as submitted by F6 and the sum of balances lying in the Client Bank accounts and the cash collateral lying with exchanges as on the sample dates - HELD THAT:- As there were unreasonably huge fund transfers between F6 and FCPL during the inspection period.
A person acting as a securities market intermediary is expected to protect the interest of investors in the securities market in which he operates. Such a person is required to maintain high standards of integrity, promptitude and fairness in the conduct of his business dealings, and not be motivated purely by prospects of financial gain.
As a regulator of the capital markets, SEBI has the duty to safeguard the interest of investors and protect the integrity of the securities market. Since the conduct of F6, FCPL and their directors is not in the interest of investors in the securities market, necessary action has to be taken against them immediately, else it may lead to loss of investors’ trust in the securities market. We are convinced that this is a case where effective and expeditious action is required to be taken to prevent any further harm to investors.
Pending detailed inquiry, in view of the liabilities of F6 and FCPL and transfer of clients’ funds / securities between F6 and FCPL it is essential to take urgent steps to prevent F6, FCPL and its present / past directors not to alienate any assets, whether movable or immovable, or any interest or investment or charge in any of such assets, so that the final remedies, if any, do not become infructuous.
Further, in order to maintain the status quo, pending detailed inquiry, it is appropriate that the holdings of the bank accounts of F6 and FCPL are also required to be frozen.
For non-compliances, movement of funds, misconduct and failure to repay the investors, pending detailed inquiry, it is also appropriate that the holdings of the bank accounts of Mr. Pankaj Goel and Ms. Meenu Goel are also frozen in order to maintain the status quo.
Thus F6 Finserve Private Limited, F6 Commodities Private Limited, Mr. Pankaj Goel, Mr. Parveen Sharma, Mr. Meenu Goel, Mr. Sanjay Anand, Ms. Kavita Anand, Ms. Asha Sharma, Mr. Deepak Goel and Ms. Ruchika Goel are restrained from accessing the securities market and are further prohibited from buying, selling or otherwise dealing in securities, either directly or indirectly, or being associated with the securities market in any manner whatsoever, till further directions.
The aforesaid entities and persons shall cease and desist from undertaking any activity in the securities market, directly or indirectly, in any manner whatsoever till further directions and are directed to provide a full inventory of all their assets, whether movable or immovable, or any interest or investment or charge in any of such assets, including details of all their bank accounts, demat accounts and mutual fund investments immediately but not later than 5 working days from the date of receipt of these directions. Also directed not to dispose of or alienate any assets, whether movable or immovable, or any interest or investment or charge in any of such assets excluding money lying in bank accounts except with the prior permission of SEBI.
-
2018 (5) TMI 2150 - DELHI HIGH COURT
Non-payment of Refund - non-filing of Form ST-21 - HELD THAT:- Without prejudice to the rights and contentions of the petitioner, the petitioner would furnish Form ST-21 within a period of two weeks and the respondents would process the case of refund within a period of three weeks thereafter. It is stated that Form ST-21 will be filed manually, as facility of uploading of Form ST-21 under the Sales Tax Act, 1975 is not available.
Relist on 10.8.2018.
-
2018 (5) TMI 2149 - DELHI HIGH COURT
Suit seeking declaration, partition, possession and injunction dismissed - dismissal on the ground that the same was barred by limitation - suit have not been properly appreciated and examined - principles of natural justice - HELD THAT:- The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone - There is no doubt that Section 26 of CPC requires that when a suit has been instituted on the presentation of a plaint, the summons be issued to the respondents in terms of Section 27 of CPC. The mandate of Section 26 of CPC is to issue summon when a plaint is presented, supported by an affidavit.
The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law.
The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose "a need to challenge" the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument.
There are no illegality or perversity in the impugned order. The impugned order needs no interference - appeal dismissed.
-
2018 (5) TMI 2148 - SUPREME COURT
Offence of Forgery - attempt to transfer the property of complainant by executing a mortgage deed by using Power of Attorney - Section 465 of the Indian Penal Code, 1860 - HELD THAT:- Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery Under Section 463, Indian Penal Code. Therefore, Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction Under Section 465, first it has to be proved that forgery was committed Under Section 463, implying that ingredients Under Section 464 should also be satisfied. Therefore unless and untill ingredients Under Section 463 are satisfied a person cannot be convicted Under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
Keeping in view the strict interpretation of penal statute i.e., referring to Rule of interpretation wherein natural inferences are preferred, it is observed that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence Under Section 464 it is imperative that a false document is made and the Accused person is the maker of the same, otherwise the Accused person is not liable for the offence of forgery.
This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the Accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the Accused, still the Accused could not be convicted.
The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the Appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the Appellant got back the property.
Appeal dismissed.
-
2018 (5) TMI 2147 - DELHI HIGH COURT
Interest income earned towards the surplus funds lying with it - business income or income from other source - disallowance made on the provision for retirement benefits - AO had brought two amounts to tax – on the one hand, determining that the amounts derived constituted income from other sources, on the other, that such expenses could not be allowed under Section 37 - HELD THAT:- Both issues are covered by decisions of this Court with respect to the question of treatment of the amounts derived as to whether they are business income or income from other source. The judgment in NTPC SAIL Power Co. Pvt. Ltd. [2012 (10) TMI 524 - DELHI HIGH COURT] is conclusive and averse to the Revenue. The judgment in Commissioner of Income Tax v. Insilco Ltd. [2009 (2) TMI 31 - DELHI HIGH COURT] has ruled against the assessee that such amounts are deductible under Section 37 of the Act.
No substantial question of law.
-
2018 (5) TMI 2146 - ITAT MUMBAI
TP Adjustment - Comparable selection - R Systems International Limited rejected as it has different accounting period inasmuch as this company’s year ended on 31.12.2012 - HELD THAT:- As there are case laws for the proposition that companies having a different financial year ending can be selected if the margin for the period April-March can be computed based on audited segmental information available - See Mercer Consulting (India) (P.) Ltd.[2016 (8) TMI 1163 - PUNJAB AND HARYANA HIGH COURT], PANGEA3 AND LEGAL DATABASE SYSTEMS PVT. LTD. [2017 (3) TMI 267 - ITAT MUMBAI] and EGIS LIMITED [2017 (2) TMI 1204 - ITAT MUMBAI]. Thus we hold that this comparable is to be selected. The Transfer Pricing Officer may verify the margin as computed by the assessee.
Acropetal Technologies Limited - assessee submitted that the AO has taken health care segment from this comparable instead of the ITES services which is being compared - We direct the Transfer Pricing Officer to compute and take the margin of ITES Segment of the comparable for analysis.
Persistent Systems Limited - Revenue has not brought out any difference in the functional profile of the assessee for the year under consideration with that of the assessee for those assessment years. Hence, the Tribunal in assessee’s own case [2015 (11) TMI 1582 - ITAT MUMBAI] has accepted that a software product company is not comparable to assessee company which is into software development services. Accordingly, respectfully following the above precedent, we hold that this comparable has to be excluded from the final list of the comparables.
Aspire Systems (India) Private Limited - assessee submitted that this company is into IT Consultancy and Software Product Development and it is not Software Service Company - DRP has held that it was the assessee’s submissions that this comparable is into varied activities, the same argument has been placed before us. The Dispute Resolution Panel has held that this company is into Development and Software. Dispute Resolution Panel has held that merely because this company is having IPs & R & D centre, one cannot reject the comparable. We find that the ld. Counsel of the assessee has not been able to cogently rebut the findings of the authorities below. Hence, the objection of the ld. Counsel of the assessee against the selection of Aspire System Ltd. is rejected.
Infobeans Technologies Limited - DRP found that this company’s business is similar with that of the assessee - As found that Infobeans Software Solutions Pvt. Ltd. is into development of software and its sale. We find that from the perusal of the financial of this comparable submitted in the paper book we agree with the finding of the Dispute Resolution Panel and held that merely because company has shown sale of software in profit and loss account, one cannot reject this comparable. As regards the ld. Counsel of the assessee’s submission that there has been a demerger in the said comparable, hence it is not comparable, we find that it has not been explained as how the demerger has affected the results. Hence, we reject this aspect also of tassessee’s submission. Hence, we affirm the Transfer Pricing Officer’s action for inclusion of this comparable.
Thirdware Solutions Limited - assessee submitted that this comparable is into acquisition/purchase of hardware and software including software as a service - When this company's substantial revenue is from other various business segments like sale of licence, software services and segmental results are not available, this company cannot be a valid comparable for benchmarking the international transaction. Following the cases M/S. IVY COMPTECH LIMITED [2014 (12) TMI 1414 - TELANGANA HIGH COURT] and M/S INTOTO SOFTWARE INDIA PVT. LIMITED HYDERABAD [2014 (3) TMI 1071 - ANDHRA PRADESH HIGH COURT] we hold that this is not a valid comparable in the present case.
Inclusion of Pass-through Costs in the Operating Margin - TPO has recomputed the PLI by considering the out sourcing cost as operating cost, whereas the assessee has treated the same as pass through cost and adjusted the same in indirect expenses - HELD THAT:- We find that as rightly held by the authorities below, the outsourcing cost is directly related to the software development and services. It is not the case that the AE has directly given contract to other parties, rather it is to the assessee who has sub-contracted its part of work. The assessee has merely developed a part of the software through out-sourcing instead of in-house development. The outsourced work is incorporated in the work of the assessee in the final software prior to providing the same to the AE. Hence, we are in agreement that the TPO has correctly considered the outsourcing cost as operating expense of the assessee.
Assessee appeal is partly allowed.
-
2018 (5) TMI 2145 - DELHI HIGH COURT
Disallowance u/s 40(a)(ia) - AO made addition on the ground that the TDS has not been deducted, was upset by the CIT(A) who noticed that the payee [DTC] had reflected the amount as its tax liability in its returns.
HELD THAT:- This issue is covered by a judgment of this Court in Commissioner of Income Tax vs. Rajinder Kumar [2013 (7) TMI 454 - DELHI HIGH COURT] and also the Commissioner of Income Tax vs. Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] No question of law arise.
-
2018 (5) TMI 2144 - ITAT KOLKATA
TP Adjustment - determination of arm's length price by TPO/AO for management services received by the Appellant - TPO observed that the entire services are stewardship in nature and received by the Associate Enterprises for maintenance of overall control of the group - HELD THAT:- This issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in assessee’s own case and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings.
Therefore, we are of the view that arm’s length price adjustment made by the DRP/Assessing Officer in respect of management services needs to be deleted. Accordingly, we delete the arm’s length price adjustment in relation to management services - Appeal filed by the assessee, is allowed.
-
2018 (5) TMI 2143 - ITAT KOLKATA
Admission of additional evidence by Tribunal in the interest of justice - Revenue submitted that rules does not enable the assessee to submit the additional evidences whether oral or documentary before the Bench without explaining the proper reason, why the same could not be produced before AO / CIT(A) - discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudication of the matter - HELD THAT:- Hon`ble Delhi High Court, in the case of Text Hundred India (P) Limited [2013 (6) TMI 72 - DELHI HIGH COURT] held that: “It is well-settled that the procedure is handmaid of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage.”
Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect to admit the additional evidence.
We admit the additional evidence filed before us and therefore, we set aside the order of the ld CIT(A) and remand the issues back to the file of the AO for de- novo adjudication. We allow these appeals for statistical purposes.
-
2018 (5) TMI 2142 - ITAT HYDERABAD
TP Adjustment - ALP adjustment on account of interest on receivables from AE - CIT(A) remitted this matter back to AO/TPO to consider the rate of interest on domestic term deposit of SBI instead of 14.45% with a clear cut direction to restrict the interest up to the end of the year - HELD THAT:- In the case of GSS Infotech Ltd. [2016 (7) TMI 243 - ITAT HYDERABAD] as held whether it is AE or non-AE, it is in the interest of business that assessee receives the foreign exchange early so that it can claim deduction u/s. 10A. Therefore, in our view, putting a limit of two months of credit period itself is arbitrary. Moreover, as seen from the calculation provided in page 7 of the assessment order, the date of realization was shown as 02- 02-2011 and interest was levied from 01-04-2010 to 0202-2011 which is not pertaining to the year under consideration.
As far as this year is concerned, the invoices raised on 31-12-2009 were outstanding only for a period of three months by the end of the accounting year. We are of the opinion that this period is reasonable and so no interest can be levied, just because amounts are shown as 'outstanding'. Accordingly, we cancel the interest levied and allow assessee's contentions - thus we set aside the order of CIT(A) and allow the grounds raised by the assessee on this issue.
-
2018 (5) TMI 2141 - ITAT JAIPUR
Penalty u/s 271B - assessee has violated the provisions of Section 44AA as well as 44AB of the Act for not maintaining the regular books of accounts as well as audit of the same - HELD THAT:- It is pertinent to note that when the assessee did not maintain the regular books of account then the question of getting of books of accounts audited does not arise. Once, there is a violation of provisions of section 44AA of the Act the said violation cannot be extended to section 44AB of the Act. The provisions of Section 44AB of the Act can be invoked only when the assessee has complied with the provisions of Section 44AA of the Act. Therefore, the violation of Section 44AA of the Act cannot continue because once it is found that the assessee did not maintain the regular books of account the said violation cannot travel beyond the provisions of Section 44AA and hence, cannot be held as a further violation of Section 44AB - See BISAULI TRACTORS [2007 (5) TMI 181 - ALLAHABAD HIGH COURT]
Once the assessee found to have not maintaining the regular books of account as contemplated by Section 44AA of the Act the default was completed and therefore, after the default of not maintaining the books of accounts there cannot be a further default for not getting the same audited as required U/s 44AB of the Act. Hence, the penalty of levy by the AO U/s 271B is not justified and the same is deleted. Appeal filed by the assessee is allowed.
-
2018 (5) TMI 2140 - BOMBAY HIGH COURT
Monetary relief under Section 20 of the D.V. Act - proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings or not? - Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- A proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature.
The provision made for designating the Court of Judicial Magistrate or the Metropolitan Magistrate as the Court where application under Section 12 (1) of the D.V. Act can be made, appears to have been done only with a view to provide teeth to the powers of the Court - Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had.
Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil law and not in criminal law and the remedies are also made speedy and effective, which is possible by infusing them with criminality, the issues of human rights and development cannot be addressed properly. This is what seems to be the overall scheme and theme of the D.V. Act.
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality.
Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what the law should and ought to be, as understood by taking recourse to the external aids of construction. It is also well settled that literal construction should not be excluded only because the consequences lead to some undesirable results or penalty - In the case of TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH [2004 (11) TMI 11 - SUPREME COURT], the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain.
Sub-section (1) of Section 28 clearly lays down that all proceedings taken under Sections from 12 to 23 and in respect of offence under Section 31 shall be governed by the provisions of Cr.P.C. except as otherwise provided in the D.V. Act. It means that only such of the provisions of the Act as would lay down a particular procedure to be followed by the Magistrate, which would have prevalence over the provisions of the Cr.P.C. to the extent of their inconsistency with the specific provisions of the D.V. Act.
A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice - This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.
The reference is returned accordingly.
-
2018 (5) TMI 2139 - ITAT DELHI
Maintainability of appeal - Assessment of appellant on a protective basis - AOP - order is passed by AO on the alleged Association of Persons (‘AoP’) of SASL and not against the Appellant (ie SASL) - HELD THAT:- At the very outset the counsel for the assessee pointed out that impugned issue stand decided in favour of the assessee and against the revenue by the order of the bench in assessee’s own case [2018 (3) TMI 1599 - ITAT NEW DELHI]
Thus respectfully following the decision of Hon’ble Delhi High Court in the case of Linde AG Linde Engineering Division vs. DDI (2014 (4) TMI 975 - DELHI HIGH COURT] we hold that Consortium Agreement dated 04/05/03 between Slumberger Asia Services Ltd and Transocean Offshore Deep water Drilling Pvt. Ltd., do not constitute an AOP. Transocean Offshore Deepwater Drilling Inc. being consortium member has rightly offered to tax the receipts u/s 44BB in the return of income.
Gross receipts for the purposes of Section 44 BB - presumptive income - As decided in TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC. C/O. NANGIA AND COMPANY [2018 (2) TMI 53 - ITAT DELHI] for the purposes of computing the 'presumptive income' of the assessee for the purposes of Section 44 BB of the Act, the service tax collected by the Assessee on the amount paid is for rendering services is not to be included in the gross receipts in terms of Section 44B (2) read with Section 44 BB (1). The service tax is not and amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The only collecting the service tax for passing it on to the Government.
The Court further notes that the position has been made explicit by the CBDT itselfin two of its circulars. In Circular No. 4/2008 dated 28th April 2008 it was clarified that "Service tax paid by the tenant doesn’t partake the nature of "income" of the landlord. The landlord only acts as a collecting agency for Government for collection of Service Tax. Therefore, it has been decided that tax deduction at source) under sections 194-I of Income Tax Act would be required to be made on the amount of rent paid/payable without including the service toot. In Circular No. 1/2014 dated 13th January 2014, it has been clarified that service tax is not to be included in the fees for professional services or technical services and no TDS is required to be made on the service tax component under Section 194 J of the Act. Appeal of assessee allowed.
-
2018 (5) TMI 2138 - SC ORDER
Maintainability of appeal - opportunity to file deficit court fee of Rs.19,000/- - HELD THAT:- A last opportunity is granted to file deficit court fee of Rs.19,000/- within four weeks, failing which the appeals shall stand dismissed for nonprosecution.
-
2018 (5) TMI 2137 - ITAT CHANDIGARH
Non-representation on the date of hearing by assessee - HELD THAT:- The notice of hearing was sent to the assessee, but there was no compliance on behalf of the assessee. Even no application seeking adjournment was filed. It can be safely presumed that the assessee may not be serious in pursuing the appeal filed. Support is from the order of the ITAT Delhi Benches in the case of CIT Vs Multiplan India Pvt. Ltd [1991 (5) TMI 120 - ITAT DELHI-D] and the decision of Late Shri Tukoji Rao Holkar Vs Wealth Tax Commissioner [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT].
It is appropriate to add that in the eventuality the assessee is able to show that there was a reasonable cause for non-representation on the date of hearing, it would be at liberty to pray for a recall of this order by making an appropriate prayer. Said order was pronounced in the Open Court at the time of hearing itself. Decided against assessee.
........
|
