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Showing 1 to 20 of 2146 Records
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2018 (8) TMI 2152
Seeking permission for withdrawal of petition - Recall of petition admitted - appointment of OL as the Provisional Liquidator - OL states that expenses have been spent on the company on account of security and other expenses - HELD THAT:- The order dated 20.9.2017 is recalled, subject to the respondent paying a sum of Rs.24,00,000/- to the OL. The order appointing the OL as the Provisional Liquidator would stand recalled on payment of the dues of the OL. OL will de-seal the premises which have been sealed by it and hand over the possession to the Authorised Representative of the respondent company on payment of the dues of the OL.
Petition is dismissed as withdrawn.
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2018 (8) TMI 2151
Approval of Resolution Plan - Committee of Creditors have not provided (suspended) Board of Directors with the copies of the resolution plans for their comments - Regulations 19 and 21 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- From the report of the Joint Parliamentary Committee it is clear that the 'Committee of Creditors' can modify the terms of 'debt' contract only by negotiations between the 'creditors' and the 'corporate debtor' i.e. the 'Board of Directors'. Therefore, for the purpose for modifications/terms of 'contract' between the 'creditors' and 'corporate debtor', the 'Board of Directors' are to be taken into confidence - The Board of Directors cannot decide the viability and feasibility of a 'Resolution Plan' nor is competent to restructure their debt in order to make the 'Corporate Debtor' as a going concern. It only in the domain of the 'committee of creditors' who are expert in the field to decide the viability, feasibility and financial matrix of one or other 'resolution plan' by majority share of voting rights.
However, if the 'Committee of Creditors' are still negotiating the matter with the 'resolution applicants' in such case the representative of the Board of Director may give its suggestions.
It is not required to grant relief as sought for - appeal disposed off.
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2018 (8) TMI 2150
Utilization of credit accumulated on account of Education Cess and Secondary and Higher Education Cess for payment of service tax leviable and payable on telecommunication services - It was held by High Court that In the present case, credit of EC and SHE could be only allowed against EC and SHE and could not be cross- utilized against the excise duty or service tax. In fact, what the petitioners seek is an amendment of the scheme to allow them to take cross utilization of the unutilized EC and SHE upon the two cesses being withdrawn against excise duty and service tax, though this was not the position even earlier. Both EC and SHE were withdrawn and abolished.
HELD THAT:- Issue notice.
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2018 (8) TMI 2149
Government and the BDA had not taken any steps to issue a final notification or to develop the land for the last 5 years - BDA refused to give permission to develop the land on the ground of preliminary notification Under Section 17 of the BDA Act - right to enjoy the property has been taken away without finalizing the acquisition - HELD THAT:- This Court has emphasized that the primary object of the BDA Act is to carry out planned development. The State Act has provided its own scheme. The time constraints of the land acquisition are not applicable to the BDA Act. Making applicable the time frame of Section 11A of LA Act would debilitate very object of the BDA Act. It is apparent that the decision of the Single Judge as well as the Division Bench is directly juxtaposed to the decision of Five Judge Bench of this Court in OFFSHORE HOLDINGS PVT. LTD. VERSUS BANGALORE DEVELOPMENT AUTHORITY & ORS. [2011 (1) TMI 1322 - SUPREME COURT] in which precisely the question involved in the instant cases had been dealt with. By indirect method by making applicable the time period of two years of 11A of LA Act mandate of BDA Act has been violated. However, it is shocking that various decisions have been taken into consideration particularly by the Single Judge, however, whereas the decision that has set the controversy at rest, has not even been noticed even by the Single Judge or by the Division Bench.
It is apparent from the fact that the Single Judge has relied upon the decision in H.N. Shivanna [2012 (11) TMI 1333 - KARNATAKA HIGH COURT] in which it was observed by the Division Bench that scheme to be completed in 2 years otherwise it would lapse. It was precisely the question of time period which was dwelt upon and what was ultimately decided by this Court in Offshore Holdings has been blatantly violated by the Single Judge and that too in flagrant violation of the provisions and intendment of the Act.
It is also apparent from the facts and circumstances of the case that there were a large number of irregularities in the course of an inquiry Under Section 18(1) of the BDA Act. Government had nothing to do with respect to the release of the land at this stage, as the stage of final notification had not reached but still the landowners in connivance with the influential persons, political or otherwise, managed the directions in respect of 251 acres of the land and Special Land Acquisition Collector also considered exclusion of 498 acres of the land against which the question was raised in the Assembly and eyebrows were raised in public domain. Two inquiries were ordered on 24.11.2012 and 19.1.2013 by the State Government and based upon that inquiry, it was ordered and a public notice was issued on 3rd May, 2014 that the BDA will consider the entire matter afresh - it was not at all open to the High Court to quash the preliminary notification issued Under Section 17, as the land owners, State Government and BDA were responsible to create a mess in the way of planned development of the Bangalore city.
The State Government as well as the BDA directed to proceed further to issue final notification without any further delay in the light of the observations made in the order. The impugned orders passed by the Single Judge and the Division Bench are hereby quashed and set aside. The scheme and notification Under Section 17 of the BDA Act are hereby upheld with the aforesaid directions - the Land Acquisition Officer proposed exclusion of 251 acres of land from acquisition on being asked by the Government after the preliminary notification was issued. The Land Acquisition Officer, has considered another 498 acres of land to be excluded from being acquired.
Hon'ble Mr. Justice K.N. Keshavanarayana, former Judge of the Karnataka High Court appointed as the Inquiry Officer for fixing the responsibility on the officials of the BDA and the State Government who were responsible for the aforesaid. The Commissioner, BDA is hereby directed to consult Inquiry Officer and pay his remuneration. Further, we direct BDA to provide appropriate secretarial assistance and logistical support to the Inquiry Officer for holding the inquiry.
Appeal disposed off.
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2018 (8) TMI 2148
Dishonour of Cheque - failure to take into consideration the provisions of Section 269 SS of the Income Tax Act, 1961 while taking cognizance of offence - HELD THAT:- In the instant case, the prosecution is initiated against the petitioner for the alleged dishonor of a cheque. The case of the complainant is that in repayment of the hand loan advanced by him, the petitioner/accused issued the cheque in question which has been dishonored. No doubt, the sources from which the complainant paid the loan amount may be required to be established during the trial, but the prosecution under Section 138 of N.I. Act cannot be stalled for non-compliance of Section 269 SS of the Income Tax Act. Any cash transaction in violation of Section 269 SS of Income Tax Act may give rise to an independent criminal offences, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law. Even otherwise, the contention urged by the petitioner could be decided only during the trial.
Petition dismissed.
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2018 (8) TMI 2147
High Court exercising its revisional power overturned the verdict (refusal to discharge) and thought it proper to order for discharge - Appreciation of evidence for discharge undertaken by High Court - HELD THAT:- Appreciation of evidence is an exercise that the High Court, could not have undertaken at this stage of consideration of the application for discharge. But this is what precisely what High Court appears to have been done.
While there can be no dispute on the proposition that has been laid by this Court in Yogesh alias Sachin Jagdish Joshi [2008 (4) TMI 803 - SUPREME COURT] what has happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated. In a situation where the said evidence is yet to be tested by cross-examination and the veracity of either of the two versions is yet to be established, it cannot be said that there are two possible views of the matter. The observations of this Court in Yogesh alias Sachin Jagdish Joshi will, therefore, not assist the accused.
The power exercised by the High Court to order for discharge was premature. Consequently, the order of the High Court ought to be set aside - The appeals are, consequently, allowed.
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2018 (8) TMI 2146
Anti-competitive agreements - case is that Informant has alleged that the OP group being a dominant player in the market has imposed unfair and arbitrary terms and conditions in the Agreement and that such conduct violates the provision of Section 4 of the Act - Whether the OP group has contravened the provisions of Section 4 of the Act? - relevant market - Dominance - Abuse of Dominance.
HELD THAT:- Section 4 of the Act prescribes abusive conduct by a dominant enterprise. Since the conduct of the OP group needs to be analysed under Section 4 of the Act, the existence of a position of dominance in terms of the Act needs to be determined first as there can be no abuse of dominance in the absence of dominance. The position of dominance of an enterprise is, usually, with context to a relevant market within which such an enterprise is alleged to be abusing its position.
Relevant market - HELD THAT:- The Commission observes that if the cities in NCR like Noida or Ghaziabad or Faridabad are compared with Gurgaon as per the criteria laid down above, it becomes apparent that the conditions of competition in these cities are not homogenous. Hence, these cannot together be considered as one geographic market. Even if there is a 5% increase in the price of the properties in Gurgaon, a consumer’s preference will not change since there are other external factors to be considered while purchasing a residential property in the market. The geographic region of Gurgaon has gained relevance owing to its unique circumstances and proximity to Delhi, Metro Stations, preference by MNCs, big commercial and institutional centres, shopping malls, well developed infrastructure, wide roads, etc. Thus, in view of the foregoing, the Commission opines that the city of Gurgaon is a separate relevant market.
Dominance - HELD THAT:- In the present case, it is noted that the property in relation to which the allegation of abuse has been made was booked in 2011-12, whereas in the previous cases the property was booked in the period 2006-2009. The investigation by the DG shows that the market dynamics as they existed then are different from those in 2011-2012. Several new players have entered the geographic market of Gurgaon to provide the services of development of residential apartments. These include not only new players competing to make a space for themselves in the market but also players with established brand names such as Tata and Godrej. Thus, in such a changed market scenario during the relevant period no individual player including the OP group appears to have the ability to influence the conditions of competition in the relevant market.
Abuse of Dominance - HELD THAT:- Since the OP group does not appear to be in a dominant position in the relevant period with the changed scenario, there remains no requirement to examine the allegations of abuse of dominance, since in the absence of dominance there can be no case of abuse of dominance in terms of Section 4 of the Act.
The Commission concludes that the contravention of the provisions of Section 4 of the Act is not established in the instant matter. Hence, the case is ordered to be closed under Section 26(6) of the Act.
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2018 (8) TMI 2145
Maintainability of appeal in HC u/s 260A - determination of Arms Length Price - substantial quantum of international trade and transactions - payment in respect of management fees and global sale and marketing activity fees - substantial question of law or not? - Tribunal setting aside the determination of Arms Length Price done by assessing authority and has directed the assessing authority to the file of the TPO/AO by considering the payment in respect of management fees and global sale and marketing activity fees as part of the operating cost and allocating the same in the ration of the turnover of the other international transactions when each transaction is different and should be analyzed separately and without appreciating that duplication of services and benefit analysis is very important to bench mark the transaction in transfer pricing - HELD THAT:- As decided by tribunal payment in respect of management fees as well as Global Sale and Marketing Activity Fees shall be considered as operating cost and has to allocated in the ratio of turnover of the other international transactions and then the ALP of the other international transactions has to be determined under TNMM analysis. Hence we set aside the entire issue of determination of ALP and TP Adjustment to the record of the TPO/A.O. for carrying out fresh exercise of determination of ALP in respect of international transactions by considering the payment in respect of management fees and Global Sale and Marketing Activity Fees as part of the operating cost and allocating the same in the ratio of the turnover of the other international transactions.
However, this Court in a recent judgment in M/s Softbrands India Pvt. Ltd. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable.
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2018 (8) TMI 2144
Deduction u/s 80HHF - income on export of cassette / software on the subject of “building cheap houses” - whether the exports has actually taken place and whether the conditions under section 80HHF are complied with? - CIT(A), in the first round, declined section 80HHF on the ground that censorship certificate was not available and the assessee cannot be any worse off in the remanded proceedings - HELD THAT:- We are unable to see any merits in the stand of the learned counsel. Our careful perusal of material on record indicates that at no stage the satisfaction of conditions u/s 80HHF even came up for examination before the authorities below. The reference to censorship certificate was picked up from the arguments of the assessee, but that was not the limited aspect on which remand was made.
All issues were left open as the adjudication was to be done de novo. In these circumstances, satisfaction of section 80 HHF conditions cannot be assumed or inferred. Unless the assessee specifically satisfies these condition, deduction under section 80HHF is out of question. The authorities below were thus justified in rejecting the claim of deduction under section 80HHF, and, even before us, no attempts have been made to satisfy the said conditions.
Thus we approve the conclusions arrived at by the authorities below, and decline to interfere in the matter.
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2018 (8) TMI 2143
Election petition - time limitation - limitation for filing the election petition had expired - Order 7 Rule 11 - HELD THAT:- In Charan Lal Sahu v. Nandkishore Bhatt [1973 (8) TMI 177 - SUPREME COURT], a two Judge bench held that there is no common law right to challenge an election since it is purely a matter of Regulation by the terms of the statute. The right being statutory, the terms of the statute must be complied with.
The Haryana Panchayati Raj Act 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election petition must be filed within a period of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14 of the Limitation Act 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition which fails to comply with the statute is liable to be dismissed. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the subject, to which we have referred. The first Respondent filed an election petition in the first instance to which there was an objection to maintainability Under Order 7 Rule 11 of the Code of Civil Procedure. Confronted with the objection Under Order 7 Rule 11, the first Respondent obviated a decision thereon by withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first Respondent was beyond the statutory period of 30 days and was hence liable to be rejected.
The election petition filed by the first Respondent shall stand dismissed.
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2018 (8) TMI 2142
Dacoity/Burglary - concrete proof to establish the participation of the appellant in the alleged crime or not - HELD THAT:- There was no instance of alleged dacoity on the time and place of occurrence wherein the accused was a party, we find from the deposition of Reena Devi (PW1), daughterinlaw of the informant that on the intervening night of 11th and 12th January, 1999 on hearing some disturbance, she woke up and found the assailants armed with sticks, looting articles in the house. When she tried to resist, they assaulted her and took away her ornaments including golden bangle and a chain and also tried to snatch her child. A brief case of her husband Neeraj Kumar (PW2) containing clothes and cash of Rs.5,200/ has also been stolen. Altogether the worth of stolen property would be Rs.25,000/. In that commotion, hearing her hue and cry her fatherinlaw—PW3 (informant) and motherinlaw came there who objected the assailants and they too were assaulted by the accused.
In the case on hand, before looking at the confessional statement made by the accused—appellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the Chief/Head of the team of assailants and the crime was executed as per the plan made by him - The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act.
It is also clear from the statement of the accused—appellant that the inmates of the house suffered injuries at the hands of the accused party as they had beaten them with the pieces of wood (sticks) and created terror among them. The recovery of bloodstained sticks from the orchard of Kamal Jain and the FSL report (Ext.X) proves the circumstance with no manner of doubt. Another facet of the case as portrayed by the appellant in his defense is that the informant implicated the appellant in the crime with the connivance of I.O. due to old enmity. However, we do not find any evidence or material on record in support of such claim made by the appellant. On the other hand, not only by the recovery of Rs.400/ from the house of appellant his participation stands proved, with the other incriminating evidence available on record.
There are no hesitation to conclude that the prosecution has proved the case against the accused—appellant beyond all reasonable doubts - there are no infirmity or illegality in the impugned judgment passed by the High Court - appeal dismissed.
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2018 (8) TMI 2141
Exaggeration of the issue - doctrine of falsus in uno, falsus in omnibus (false in one thing, false in everything) - Setting out fire on the houses of IPF members, including the party leader - assault of IPF members and breaking into the houses of the locality and destroying household articles - stealing money - snatching a pair of gold earrings - HELD THAT:- It is a well settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. The doctrine of falsus in uno, falsus in omnibus, which means "false in one thing, false in everything" has been held to be inapplicable in the Indian scenario, where the tendency to exaggerate is common. This Court has endorsed the inapplicability of the doctrine in several decisions, such as Nisar Ali v. State of Uttar Pradesh [1957 (2) TMI 92 - SUPREME COURT], Ugar Ahir v. State of Bihar [1964 (3) TMI 128 - SUPREME COURT], Sucha Singh v. State of Punjab, [2003 (7) TMI 704 - SUPREME COURT], Narain v. State of Madhya Pradesh, [2004 (2) TMI 742 - SUPREME COURT] and KAMESHWAR SINGH AND ORS. VERSUS STATE OF BIHAR AND ORS. [2018 (4) TMI 1965 - SUPREME COURT].
In Krishna Mochi v. State of Bihar, [2002 (4) TMI 971 - SUPREME COURT], this Court highlighted the dangers of applying the doctrine in the Indian scenario holding that The aforesaid dictum is not a sound Rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.
It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted.
It is found from the records that the versions of the eye witnesses cannot be said to be untrustworthy, especially in light of the observation of this Court in Masalti's case [1964 (5) TMI 45 - SUPREME COURT]. There are as many as 24 injured eye witnesses in the case and their presence cannot be doubted. In this situation, it is found that the High Court has not applied its judicial mind in determining whether the judgment of the trial court was perverse inasmuch as the entire body of evidence was discarded, simply on the basis that some of the witnesses had deposed for the first time before the Court.
The High Court has not at all assigned any cogent reason for reaching its conclusion. The revisional jurisdiction must be exercised by the High Court only in exceptional circumstances, where there is a gross miscarriage of justice, manifest illegality or perversity in the judgment of the lower court. Interference would be warranted only if there is a manifest illegality in the judgment of the lower court. But in the matter on hand, because of non-furnishing of valid reasons by the Trial Court, while coming to its conclusion, there is manifest illegality, and thus, the view taken by the High Court cannot be termed as reasonable - the revisional jurisdiction vested in the High Court has not been properly exercised by the High Court. The High Court should not have proceeded casually while affirming the judgment of the trial Court. Having regard to the material on record and having regard to the magnitude of the offence, the High Court should have been more serious while considering the revision petition.
The High Court has failed to consider whether the Trial Court discarded material evidence in the form of eye-witness testimony on the issues of murder, attempt to murder and grievous hurt and completely overlooked evidence on other charges such as unlawful assembly and house-burning - the High Court has not given due consideration to the evidence on record to arrive at a reasoned conclusion and has thus failed to exercise its revisional jurisdiction in accordance with established principles. In our opinion, it would be appropriate for the High Court to undertake proper consideration of the material of the matter once again with due application of the judicial mind to find out as to whether the trial Court's order has caused gross miscarriage of justice, manifest illegality or perversity.
Appeal allowed.
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2018 (8) TMI 2140
Requirement to stamp sale certificate - requirement of registration of sale certificate - sale certificate should be treated only as a sale deed or not - to be classified under Article 18(c) of the Indian Stamp Act or not - writ petition was dismissed on the ground that the sale certificate was issued in the year 2008 and till 2013, the appellant had not chosen to register the same on the ground that it is not compulsorily registrable - HELD THAT:- So far as the requirement of registration is concerned, there is no doubt that the sale certificate is not required to registration in view of Section 17(2)(xii) of the Registration Act - Though Section 17 refers to documents which are compulsorily registrable, sub-section (2) provides that nothing in clauses (b) and (c) of sub-section (1) would apply to the nature of the documents as set out thereafter and in clause (xii) in particular specifically stated that any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer, as any sale certificate issued as per the provisions of the Security Interest (Enforcement) Rules 2002 in public auction, is deemed to be sale by the revenue. Thus the statute makes it very clear that the sale certificate issued need not be registered.
Applicability of Indian Stamp Act, 1899 - HELD THAT:- Though the sale certificate referred is not compulsorily registrable whether the stamp duty is payable on the same is relevant - So far as the certificate of sale itself is not compulsorily registrable document in view of Section 17(2)(xii) of the Indian Stamp Act, transfer of title in favour of the purchaser is not vitiated by non registration of the certificate. All that is required is to file a copy of the sale certificate as per Section 89 (4) of the Registration Act.
Therefore, the refusal by the Sub Registrar to file sale certificate issued by the Recovery Officer by making necessary entries in the Book in accordance with sub-section (4) of Section 89 of the Registration Act is not justified.
In B.Arvind Kumar Vs.Government of India and Others [2007 (5) TMI 657 - SUPREME COURT], it is held that a property sold in public auction pursuant to an order of the Court and once the sale is confirmed it becomes absolute and the title vests with the auction purchaser. The subsequent sale certificate issued to the purchaser is the evidence of such title which does not require registration under Section 17(2) (xii) of the Registration Act. In the case on hand also the property was purchased in public auction on 16.05.2008 and the sale certificate was issued on 31.08.2008. Therefore, the appellant/purchaser automatically becomes title holder of the property by virtue of the sale certificate. The payment of stamp duty on the sale certificate is not warranted as it is only a sale certificate issued which has to be filed or scanned in Book No.1 as per Section 89(4) of the Registration Act.
The payment of stamp duty perhaps may arise only when the appellant wants to deal with the property by selling it. As long as the sale certificate remains as it is, it is not compulsorily registrable. If the appellant uses the document for any other purpose, then the requirement of stamp duty etc., would arise. Hence, the plea of the appellant is well within the statutory powers.
The dismissal of the writ petition on the ground of delay and payment of stamp duty therefor does not arise and therefore, cannot be sustained - Appeal allowed.
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2018 (8) TMI 2139
Assessment of trust income - claim for depreciation on assets put into use during the accounting year - entire cost of these assets have been claimed by the assessee as an application of income for charitable activities - HELD THAT:- This Court in case of ‘Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona’ [2017 (12) TMI 1067 - SUPREME COURT] as held income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets. In all such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable. However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust.
Also when the Income Tax Officer stated that full expenditure had been allowed in the year of acquisition of the assets, what he really meant was that the amount spent on acquiring those assets had been treated as 'application of income' of the Trust in the year in which the income was spent in acquiring those assets. This did not mean that in computing income from those assets in subsequent years, depreciation in respect of those assets cannot be taken into account.
Application of income of the trust for charitable and religious purposes - Carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year - As decided in Ohio University Christ College [2018 (11) TMI 1055 - KARNATAKA HIGH COURT] allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench. Therefore, the same does not call for interference. A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income-tax v. Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] wherein held that the income derived from the trust property has also got to be computed on commercial principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year.
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2018 (8) TMI 2138
Nature of receipts - Amount received by way of exemption of sales tax payments - trading receipt OR capital receipt hence not liable to tax? - As decided by HC [2017 (7) TMI 501 - DELHI HIGH COURT] subsidy was revenue in nature - Depreciation claim by lessee is allowed
HELD THAT:- Leave granted. Hearing expedited.
Stay to continue.
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2018 (8) TMI 2137
Dishonour of Cheque - proclaimed offender - whether when the main FIR itself has been compromised between the parties, subsequent FIR registered under Section 174-A of the IPC can be quashed on the basis of compromise? - HELD THAT:- This Court is of the considered view that the objective of the coercive mechanism prescribed the provisions of the Code of Criminal Procedure for declaring an accused as proclaimed person is mainly to ensure that the person remains present before the Court to face the trial and to receive the punishment for his alleged conduct, which has constituted the offence. If the person has appeared before the Court, even after he was declared as proclaimed person or is granted bail by the Court after such declaration then the object of the procedure prescribed under the Code of Criminal Procedure stands achieved.
In the present case, as is borne out from the record, the main FIR under Section 420 of the IPC was registered on 11.6.2016. For the first time, the police had given him a notice under Section 41-A of the Cr.P.C. on 3.5.2017. However, the petitioner did not appear before the prosecuting agency, which led to issuance of arrest warrant of the present petitioner. Since the warrants of arrest cannot be executed as such, the proceedings under Section 82 Cr.P.C. were initiated - the object of coercive measures which was enforced against the petitioner stands duly achieved. The Trial Court had even granted regular bail to the petitioner for the offence under Section 174-A of the IPC.
This Court feels that since the main FIR has already been compromised between the parties and is not going to proceed further, therefore, it would not be justified to make the petitioner to face trial only for an offence under Section 174-A of the IPC. Therefore, even the FIR No.138 dated 09.04.2018, which pertains to offence under Section 174-A of the IPC deserves to be quashed.
Petition allowed.
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2018 (8) TMI 2136
Condonation of delay - inordinate delay of 246 days in filling appeal - HELD THAT:- The delay cannot be condoned merely because the assessee’s case calls for sympathy or merely out of benevolence. For the exercise of discretion in condoning the delay, it must be established beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence on its part.
Sufficient cause as contemplated in the limitation provisions must be a cause which is beyond the control of the assessee. In the case on hand, the factual matrix, in our view, clearly establishes that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if it had exercised due care and attention.
Therefore, in our opinion, in the factual matrix of this case, there exists no sufficient and reasonable cause for the inordinate delay of 246 days in filing the subject appeals. In coming to this finding, we draw support from the decisions of the Hon’ble Supreme Court in the case of MST Katiji [987 (2) TMI 61 - SUPREME COURT], Vedabai alias Vaijayanatabai Baburao Patil [2001 (7) TMI 117 - SUPREME COURT], and Ganga Sahai Ram Swaroop [2004 (7) TMI 78 - ALLAHABAD HIGH COURT] The Coordinate Bench decision in case of Oracle India cited by the assessee has been duly considered and we find that the factual matrix different therein and it was a case lapse on the part of the consultant. In this view of the matter, we are of the view that, in the case on hand, the cause of substantial justice would not be served by condoning the inordinate delay of 246 days in filing these appeals for which no cogent reasons have been given. No substantial question of law
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2018 (8) TMI 2135
Condonation of delay - inordinate delay of 246 days in filling appeal - HELD THAT:- The delay cannot be condoned merely because the assessee’s case calls for sympathy or merely out of benevolence. For the exercise of discretion in condoning the delay, it must be established beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence on its part.
Sufficient cause as contemplated in the limitation provisions must be a cause which is beyond the control of the assessee. In the case on hand, the factual matrix, in our view, clearly establishes that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if it had exercised due care and attention.
Therefore, in our opinion, in the factual matrix of this case, there exists no sufficient and reasonable cause for the inordinate delay of 246 days in filing the subject appeals. In coming to this finding, we draw support from the decisions of the Hon’ble Supreme Court in the case of MST Katiji [987 (2) TMI 61 - SUPREME COURT], Vedabai alias Vaijayanatabai Baburao Patil [2001 (7) TMI 117 - SUPREME COURT], and Ganga Sahai Ram Swaroop [2004 (7) TMI 78 - ALLAHABAD HIGH COURT] The Coordinate Bench decision in case of Oracle India cited by the assessee has been duly considered and we find that the factual matrix different therein and it was a case lapse on the part of the consultant. In this view of the matter, we are of the view that, in the case on hand, the cause of substantial justice would not be served by condoning the inordinate delay of 246 days in filing these appeals for which no cogent reasons have been given. No substantial question of law
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2018 (8) TMI 2134
Exemption u/s 11 disallowed - intimation u/s. 143(1) - AO disallowed the claim of assessee for exemption u/s. 11(2) for the reason of non-filing of Form 10 u/s 11(2) as 85% of the income of a charitable trust has to be applied for charitable purposes - assessee filed an application u/s. 154 seeking to rectify the intimation u/s. 143(1) contended that in the original return filed for the A.Y 2014-15, the fact of accumulation of income u/s 11(2) was mentioned. The appellant had already prepared an application for accumulation in Form 10 - assessee submitted that since intimation u/s. 143(1) is not an assessment, the request of the assessee to accept Form 10 and allow accumulation ought to have been accepted and intimation u/s. 143(1) rectified - HELD THAT:- As relying on Bagalkot Town Development Authority [2014 (7) TMI 91 - ITAT BANGALORE] following NAGPUR HOTEL OWNERS ASSOCIATION case [2000 (12) TMI 99 - SUPREME COURT] that intimation required u/s 11 has to be furnished before the assessing authority completes the concerned assessment.
In the present case, there was no assessment proceeding and there is only intimation u/s. 143(1) of the Act. An intimation u/s. 143(1) is not an assessment as laid down in the case of Rajesh Jhaveri Stock Brokers [2007 (5) TMI 197 - SUPREME COURT] - In view of the legal position as explained above, we are of the view that the AO ought to have accepted the application for rectification u/s. 154 of the Act. We accordingly direct the AO to allow application u/s. 154 of the Act and rectify the intimation. Appeal by the assessee is allowed.
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2018 (8) TMI 2133
Disallowance u/s 14A r.w.r. 8D - expenses incurred in relation to earning of exempt income - Assessee contended that investments were made by the assessee company out of its own funds which was sufficient to cover the cost of investments and that no interest bearing funds were utilized to make investments which yielded the exempt income - HELD THAT:- Admittedly, investments in bonds and debentures and advance to subsidiaries could not have produced tax free income and for that reason sec. 14A was not applicable to it. Even the lower authorities have not made out any case that the borrowed funds were relatable to investment in bonds and debentures and advance to subsidiary and that the interest paid thereon was for non-business purposes and hence, disallowable u/s. 36(1)(iii) of the Act.
We, therefore, do not deem it fit or appropriate to entertain this argument at this stage as it would tantamount to enhancing the scope of appeal whereas the issue before us concerns only disallowance u/s. 14A - respectfully following the order of the Tribunal [2018 (5) TMI 255 - ITAT KOLKATA] for AY 2008-09, we direct the AO to delete the disallowance of proportionate interest made u/s. 14A of the Act read with Rule 8D(2)(ii) of the Rules.
Addition made u/r 8D(2)(iii) - Tribunal in assessee’s own case for AY 2008-09 [2018 (5) TMI 255 - ITAT KOLKATA] following the decision of REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] held that only dividend bearing investment in shares are to be considered for making disallowance u/s. 14A of the Act. Following the same, we remand this issue back to the file of the AO with a direction to consider only investment in shares and units held on the opening and closing date of the previous year which yielded dividend income for the purpose of computing the disallowance u/s. 14A of the Act read with Rule 8D(2)(iii)
Computation of deduction u/s. 10B and 80IA - allocation of 7.39% of directors’ remuneration and auditor’s remuneration to be considered as deduction in arriving at the profits of the undertakings eligible for deduction u/s. 10B and 80IA - HELD THAT:- On perusal of the separate audited accounts of the eligible undertakings, we note that no expenses have been debited in respect of the audit conducted on these segmental accounts and in that view of the matter, we hold that the auditor’s remuneration debited in P&L Account, inter-alia, comprised of the fees paid to auditors for auditing the separate accounts of the eligible undertakings. In absence of the break-up of fees paid to auditors, we find no infirmity in the order of the lower authorities in allocating the auditor’s remuneration to the eligible undertaking on pro-rata basis and hence, the order of the lower authorities to that extent is confirmed.
Director’s remuneration - We find that the same can be bifurcated into remuneration and sitting fees paid to non-executive Directors and to the Managing Director. We note that the non-executive Directors do not participate in the day-to-day work of the company nor are in-charge of the operations of the undertakings and hence the remuneration paid to them did not have first degree nexus with the profits of the eligible undertaking.
Non-executive directors attended the board meetings and were involved in policy decision making, matters of corporate governance etc. which had no first degree nexus with the operations of the eligible undertaking DR could not controvert this particular fact, therefore, the AO/Ld. CIT(A) erred on facts and in law in allocating sums out of the Director’s remuneration while arriving at the income eligible for deduction u/s. 80IA/10B of the Act and, therefore, we delete the allocation made on this issue.
Remuneration paid to the Managing Director - We note that the Managing Director is involved in the day-to-day affairs of the company and is responsible for over-all operations of the company including the eligible undertaking. Managing Directors’ remuneration indeed have nexus with the functioning of the eligible undertaking and, therefore, we uphold the allocation made out of the Managing Directors’ remuneration to the profits of the eligible undertaking. Therefore, ground nos. 4 and 5 are partly allowed.
Deduction of prior period expenses - According to AO, the assessee was unable to establish that this liability for expenses pertaining to earlier years had crystalised during the financial year and, therefore, disallowed the entire sum - CIT(A) deleted addition - HELD THAT:- Since interest demand was raised by the payee only in the relevant year, the Ld. CIT(A) rightly held that the liability for such expenses arose and crystalised in this year only.
As regards other items of expenses, CIT(A) observed that the bills for certain expenses for the FY 2007-08 were received by the assessee only in the next year i.e. the relevant FY 2008-09. Although the assessee had provided for the expenses on estimate basis in the earlier year but there was certain difference between the provisions estimated and the actual billed amount and it was this differential amount which was charged to the P&L Account for the relevant year.
CIT(A) correctly observed that since the bills were received after the end of the FY 2007-08 and in FY 2008-09, the differential amount had crystalised in the relevant year itself and, therefore, allowed the same. - Decided against revenue.
CIT(A) in restricting the allocation of expenses on legal and professional and travelling and conveyance to the eligible undertaking u/s. 80IA and 10B - HELD THAT:- From perusal of the schedule of expenses forming part of the audited accounts, we find that legal and profession expenses as well as travelling and conveyance expenses incurred by these undertakings were debited to the stand alone account of these eligible undertakings and hence, no further allocation on account of these items of expenses to the eligible undertakings was warranted. DR was unable to controvert this fact which is evident from the documents on record.
Allocation of ‘common expenses’ comprising of Director’s remuneration, Auditor’s remuneration, conveyance and travelling expenses and legal and professional expenses in working out the profits of the eligible undertakings u/s. 80IA and 10B -HELD THAT:- Managing Director’s remuneration and auditor’s remuneration had nexus with the functioning of the eligible undertakings and accordingly, confirm the orders of the lower authorities for making allocation out of these expenses against the income to be considered for the purpose of computing deduction u/s. 80IA and 10B of the Act. Similarly, we find that the auditor had identified and allocated the expenditure relatable to the eligible undertakings on account of travelling and conveyance and legal and professional expenses and in that view of the matter we uphold the order of the Ld. CIT(A) that no further allocation on account of these two items of expenses was called for.
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