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Showing 81 to 100 of 2137 Records
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2018 (9) TMI 2061 - ITAT COCHIN
Levy of penalty u/s. 271(1)(c) - Contract receipt for the year shown in the P&L account as different from ITS detail and Form 26AS - CIT(A) deleted the penalty/s. 271(1)(c) observing that the AO had not given any credit for tax deducted at source while calculating tax sought to be evaded and assessee had accepted the mistake, offered income to be taxed at a much higher rate than actually earned and did not file any appeal - HELD THAT:- Admittedly, in this case, the assessee has conceded the turnover to the tune of ₹ 1,40,49,048/- which led to the estimation of income by the Assessing Officer and consequent levy of penalty. Therefore, quantification of suppressed turnover is not based on mere estimation. It is only based on Form 26AS related to the assessee.
Consequent to the quantification of the suppressed turnover, profit on it was estimated. The assessee has not been able to substantiate the reason for not disclosing the correct turnover to the Department - there was actual suppression of turnover by the assessee which resulted in concealment of income of the assessee - estimation of income was not challenged by the assessee before the higher forum which means that the assessee has admitted concealment of income. Hence, levy of penalty under section 271(1)(c) of the Act is justified. However, in our opinion, levy of penalty at 200% of the tax sought to be evaded is not proper and not reasonable.
It is very excessive. Accordingly, we modify the penalty order of the Assessing Officer and sustain the penalty at 100% of the tax sought to be evaded which works out to ₹ 10,25,850/-. This ground of appeal of the Revenue is partly allowed.
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2018 (9) TMI 2060 - ITAT BANGALORE
Rectification of mistake u/s 254 - addition on account of investment in excess stock found during the course of survey at the mines of the assessee - HELD THAT:- The statement of the assessee was recorded in which he has offered the additional income - Besides, offering additional income assessee has also stated that he will arrive at the actual amount and furnish the details based on the valuation report. The assessee accordingly came forward to offer an amount for taxation in his hands for assessment years 2007-08 and 2008-09. The Tribunal has also recorded the statement of the assessee in its order. The assessee made retraction from his earlier statement after more than a year i.e., on 10.09.2009 when he was repeatedly asked to file the return of income.
Through retraction, assessee simply wanted to upgrade the books of account to explain the excess stock. The Tribunal has taken all these facts into account while adjudicating the issue. Since there is addition on account of excess stock found during the course of survey, there was no question of any adjustment of the closing stock of the earlier years which became the opening stock of the succeeding year. That is why, the Tribunal did not specifically deal with ground No. 8 raised by the assessee.
As carefully perused the order of the Tribunal and we find that Tribunal has examined all necessary aspects while adjudicating the issue. Since we do not notice any error apparent in the order of the Tribunal, we find no merit in the miscellaneous application of the assessee. Moreover, the scope of section 254 (2) is very limited and only those errors can be rectified which are apparent in the order of the Tribunal. The view taken by the Tribunal cannot be reviewed under the garb of rectification under section 254(2) of the Act. We, therefore, dismiss the miscellaneous application of the assessee.
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2018 (9) TMI 2059 - SC ORDER
Nature of receipt - revenue or capital receipt - incentives received from Engine Manufactures - HC held identical issue was decided by another Division Bench by this Court in CIT v. Jetlite India Ltd. [2015 (11) TMI 304 - DELHI HIGH COURT] therefore, the said question does not arise - HELD THAT:- Special Leave Petition is dismissed.
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2018 (9) TMI 2058 - SC ORDER
Maintainability of application - stay of operation of the impugned judgment - HELD THAT:- There shall be stay of operation of the impugned judgment and order of the National Company Law Tribunal, New Delhi.
Application admitted.
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2018 (9) TMI 2057 - SC ORDER
Company affairs being conducted prejudicial to the public interest - Respondent Companies and their directors having caused wrongful loss by fraudulent means - business of the Company is being conducted with intent to defraud its creditors, members etc. - HELD THAT:- List the matters on Tuesday i.e. 13.11.2018.
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2018 (9) TMI 2056 - ITAT MUMBAI
Estimation of income - bogus purchases - CIT-A estimating the profit rate @5% on the purchases disallowed - HELD THAT:- Taking into consideration all these facts and circumstances, the material available on record for this assessment year, and there is no change in the facts of the case, where the same parties are available in the assessments completed for the A.Ys. 2009-10, 2012-13, 2013-14 & 2014-15, and also the AOs themselves adopted 5% as the profit margin on the total purchases in the subsequent scrutiny assessments passed for the above assessment years, AO is directed to restrict the addition @5% of the purchase amount as the profit element embedded on such purchases in this year also.
On a careful reading of the order of the Ld.CIT(A), we do not find any valid reason to interfere with the findings. Thus, we sustain the Ld.CIT(A) order on this issue. - Decided in favour of assessee.
Disallowance made towards additional depreciation - diamond cutting & polishing - manufacturing or production of article or thing - HELD THAT:- Respectfully following the Coordinate Bench decision in the case of Flawless Diamond India Ltd.[2014 (9) TMI 261 - ITAT MUMBAI] we hold that cutting and polishing of diamonds manufacturing or production of article or thing as envisaged for the purpose of claiming additional depreciation u/s. 32(1)(iia) of the Act. The Tribunal has also taken similar view in assessee’s own case for the Assessment Year 2009-10 [2016 (9) TMI 1608 - ITAT MUMBAI] - Decided in favour of assessee.
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2018 (9) TMI 2055 - SUPREME COURT
Illegal admission of students in the Kannur Medical College and Karuna Medical College run by Prestige Educational Trust and Safe Development Alms Trust respectively - Jurisdiction - power of State of Kerala to promulgate the Kerala Professional Colleges (Regularisation of Admission in Medical Colleges) Ordinance, 2017 (the Ordinance) notified on 20.10.2017, which is intended to nullify judgments and orders of this Court and encroaches upon the power of the judiciary.
HELD THAT:- It is apparent from the order passed by this Court as well as by the High Court of Kerala that receiving online applications was mandatory and it was laid down in the judgment for ensuring the fair process of admissions, transparency as well as identities of the applicants. The condition was the outcome of the judgment on the power of judicial review passed by the Kerala High Court and affirmed by this Court also. Thus, the very same judgment is sought to be nullified by the impugned Ordinance by making a provision to the contrary. Admissions as per the Ordinance are to be regularised dehors the mode of submitting the applications. It is not removing the defect in any existing law. The Ordinance has clearly annulled a judgment of Court which was laid down in order to ensure fair procedure.
Perusal of entire impugned Ordinance, indicates that it is a blatant attempt of regularisation of admissions made which were declared to be invalid not only by the High Court of Kerala but by this Court after this Court had dealt with the order dated 14.11.2016 passed by the ASC after hearing the matter for several days and the Court had passed a reasoned order. While dismissing/disposing of the matters, this Court directed the 30 students who were illegally deprived of the admission, to be admitted in the next academic session 2017-18. It was clearly not a dismissal of the case in limine but a reasoned order. In the writ petitions filed by the colleges and Ors. the validity and legality of the order dated 14.11.2016 was questioned. However, this Court has upheld the same.
It is also apparent that what the State Government has done by way of impugned Ordinance is not only impermissible and beyond legislative competence it also has the effect of perpetuating illegality and arbitrariness committed by the colleges in question by not following the mandate of law laid down by the High Court as affirmed by this Court. An effort has been made to cover up the arbitrariness and illegality in an illegal and impermissible manner for which the State Government had no competence. The provisions made in the Ordinance are otherwise also quite illegal and arbitrary besides in violation of the doctrine of separation of powers enshrined Under Article 50 of the Constitution of India.
The State Government was not competent to promulgate the impugned Ordinance as already held. The question cannot be agitated afresh who could have obtained admission on the basis of the merit. There may be a large number of other students who might have been deprived of their right to obtain admission. Such kind of enquiry is impermissible to be made now in the wake of the decisions which have attained finality and are binding upon all concerned.
The power Under Article 142 cannot at all be exercised by this Court in view of the fact that it was not competent to enact the impugned Ordinance by the State Government so as to perpetuate an illegality in view of the pronouncements made earlier - the impugned Ordinance is declared to be ultra vires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgment and order passed by the High Court and by this Court - petition allowed.
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2018 (9) TMI 2054 - ITAT MUMBAI
Interest u/s 244A - Revision u/s 263 - Refund granted first towards interest amount refundable and thereafter consider the balance against the tax amount refundable which will lead to excess grant of interest - whether CIT(A) was right in directing the AO to allow interest on refund arising on account of double taxation relief interest without appreciating the fact that the assessee is not entitled for refund out of credit for DTR and hence no interest u/s 244A is allowable - HELD THAT:- As this tribunal in for assessment year 1999-2000 has cancelled the order passed by the ld. Commissioner of Income Tax u/s. 263 [2017 (7) TMI 1402 - ITAT MUMBAI] - Since the ITAT has quashed the order of the ld. Commissioner of Income Tax, the order giving effect passed by the Assessing Officer in this regard does not survive. Hence, in our considered opinion, this appeal by the Revenue becomes infructuous. Both the counsel fairly agreed to this proposition.
Appeal filed by the Revenue stands dismissed as infructuous.
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2018 (9) TMI 2053 - PUNJAB AND HARYANA HIGH COURT
Grant of regular bail - vicariously liability on petitioner - non-payment of amount to the complainant party - criminal liability can be fastened upon the petitioner or not - allegations of cheating and misappropriation of amount - period of custody undergone by the petitioner is less or what? - HELD THAT:- In case, there is a delay in the trial, the bail should be granted to the accused. The Court, while granting bail, is to consider the circumstances, the factors such as the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge are to be taken into consideration.
It has also been held in various judgment of Hon'ble the Apex Court as well as of this Court that criminal prosecution is not a proceeding for recovery of the dues of the investors but is meant for punishing the guilty. In case of economic offences, the object of criminal prosecution is to protect the investors and help them in recovery of the money. It can be a presumption but the detention of accused in the jail would not aid the recovery. It has also been held that the purpose is not to recover the amount but to punish the accused persons.
The offence is triable by Magistrate; the custody which is more than 11 months; even a single witness has not been examined; the delay is there on the part of the complainant himself as alternative remedy has already been availed and no useful purpose would be served by keeping the petitioner in custody - Giri Raj is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court - Petition allowed.
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2018 (9) TMI 2052 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL BENCH
Seeking appointment of replaced RP Mr. Sandeep Mahajan in place of the earlier RP Mr. Mohan Lal Jain - HELD THAT:- The application which has already been filed on the basis of resolution dated 05.09.2018 is under consideration and we do not feel the necessity of waiting for the CoC to grant locus standi to any other person or identity afresh other than the RP. The necessity in these matters is to decide the issue expeditiously as the speed is the essence of CIR Process.
The requirement of Section 27 stands satisfied - Application allowed.
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2018 (9) TMI 2051 - SC ORDER
Permission for withdrawal of petition - HELD THAT:- This special leave petition is dismissed as withdrawn leaving all the questions open to be agitated at the appropriate stage.
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2018 (9) TMI 2050 - RAJASTHAN HIGH COURT
Money Laundering - seeking grant of anticipatory bail - attachment of property - non bailable warrants of arrest issued by the trial court were converted into bailable warrants by this Court - Conviction and sentence by the Trial Court under Section 13 of the Prevention of Corruption Act, 1988 - HELD THAT:- This petition is disposed of with a direction that in case petitioner surrenders before the trial Court within ten days from today,he be released on bail subject to the satisfaction of the said Court.
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2018 (9) TMI 2049 - CESTAT KOLKATA
Irregular availment of CENVAT Credit - inputs - Copper ingot - goods were sent for job work - allegation is that appellant-assessee without having received the inputs in their factory, have availed the credit for payment of Central Excise duty on their final product - HELD THAT:- The present issue is no more res-integra in view of the various decisions of the Hon’ble Supreme Court, the Hon’ble High Courts and the Tribunal - the Co-ordinate Bench of the Tribunal in the case of AIR PAC Filters & Systems Pvt. Ltd. Vs. Commr. of Central Excise, Mumbai [2015 (4) TMI 1228 - CESTAT MUMBAI] were it was held that even if the input is supplied directly from supplier to the job worker, the Cenvat credit cannot be denied.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 2048 - ITAT BENGALURU
Tax rate for royalty income - Determination of tax liability on income earned by way of Royalty earned by the assessee in India - India-USA DTAA - assessee has adopted different rates for royalty income arising as per agreement entered into before 01/06/2005 and similar royalty income as per agreement entered into on or after 1/6/2005 - HELD THAT:- While deciding the first issue, being tax rate for royalty income, the ld.CIT(A) has followed the Tribunal order in assessee’s own case for earlier years 2007-08, 2008-09 and 2009- 10. In para.7.8 of the Tribunal order reproduced by him, it is noted by the Tribunal that the assessee has adopted different rates for royalty income arising as per agreement entered into before 01/06/2005 and similar royalty income as per agreement entered into on or after 1/6/2005
Tribunal had given a categorical finding that royalty income in respect of agreement entered into before 1/6/2005 is from one source and royalty income in respect of agreements entered into on or after 1/6/2005 are from difference source. Since no difference in facts could be pointed out by the ld. DR of the Revenue as per written submissions reproduced above, we find no reason to take a contrary view in the present years. Therefore, respectfully following the earlier Tribunal order followed by the ld.CIT(A), in the present years, we decline to interfere with the order of the ld.CIT(A) on this issue in all these three years. This issue is decided in favour of the assessee and against the revenue.
Estimation of current tax liability after reducing tax deductible or collectible at source and Advance Tax - Scope of amendment in the provisions of section 209 by the Finance Act, 2012 w.e.f. 1/4/2012 by way of insertion of a Proviso below sub-section (1) of section 209 - HELD THAT:- Three years are involved i.e. AY 2011-12, 2012-13 and 2013-14. In AY 2011-12, this proviso is not applicable because the same is applicable from 1/4/2012 i.e. AY 2012-13. Therefore, insofar as AY 2011-12 is concerned, we find no reason to interfere with the order of the ld.CIT(A), but for AY 2012-13 and 2013-14, this proviso is applicable and since the ld.CIT(A) has not considered the amendment to section 209, we feel it proper to send the matter back to the file of the ld.CIT(A) for fresh decision in the light of this proviso to section 209 (1) of the Act.
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2018 (9) TMI 2047 - BOMBAY HIGH COURT
Award of tender - cancellation of bid - bid in compliance with the tender or not - contention of petitioner is that the bid of respondent no.2 was required to be held as nonresponsive by the MSRTC inasmuch as the bid was not complying one of the tender conditions - HELD THAT:- It is not in dispute that the bidders requiring to take into consideration the GST, was not in contemplation when the original tender notice was issued and thus, a corrigendum dated 5 January 2017 was issued providing that the bidders should take into consideration the Goods and Service Tax rates which would be notified. Thus, the bidders including the petitioner and respondent no.2 were required to take into consideration the said condition of Goods and Service Tax as notified in the corrigendum.
The bid of Respondent No. 2 though initially quoted a total CAPEX cost of ₹ 15.75 Crores on the basis of a base price of ₹ 14.82 Crores and tax amounting to ₹ 0.93 Crores, was revised to a base price of ₹ 13.71 Crores on which a GST of ₹ 2.72 Crores would be made applicable thereby taking to total CAPEX cost to ₹ 16.45 Crores and also no revision was allowed in the total OPEX cost and the entire burden of the enhanced tax rates was to be borne by Respondent No.2. The MSRTC has rightly contended that additional negotiations and acceptance by further discount by the L1 bidder/respondent no.2 during negotiations, cannot be considered as a reason to cancel their bid.
Circular dated 11 September 1917 issued by the State Government permitted negotiations with L1 in view of the implementation of GST. Even otherwise under law there was nothing illegal for the MSRTC to have negotiations with respondent no.2 and also on the GST issue, so that the lowest bid becomes more beneficial to MSRTC. It is evident that the original tender condition pertaining to the effect that the CAPEX cost not to exceed more than 50% of the total cost, was required to be read in conjunction with the corrigendum which provided for GST to be accounted for by the bidders. The Government circular also permitted negotiation in that behalf by the tendering authority.
There are no approach of MSRTC in any manner unconscionable or arbitrary to accept the lowest bid of respondent no.2. MSRTC has acted in accordance with the tender conditions, and in view of the introduction of new regime of GST during the tendering process, the decision of the MSRTC cannot be said to be contrary to the tender conditions read with the corrigendum.
Petition dismissed.
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2018 (9) TMI 2046 - ITAT BANGALORE
Rectification of mistake -Tribunal has failed to adjudicate grounds of appeal No.4 & 5 and has erroneously mentioned grounds 2 to 5 as having been disposed off - HELD THAT:- From the discussion in para 3 of the order it is clear that the mistake that crept into the Tribunal order for Assessment Year 2012-13, in the case on hand, was that grounds 4 & 5, have not been adjudicated by the tribunal.
We recall the impugned order of the Tribunal in the case on hand for Assessment Year 2012-13 for the limited extent of adjudication of grounds 4 & 5 (supra) raised before the Tribunal as they were not adjudicated therein.
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2018 (9) TMI 2045 - BOMBAY HIGH COURT
Entitlement to the benefit of Provident Fund as per the Act and the statutory scheme - members of the Petitioner and other similarly situated employees, employed on contract basis - HELD THAT:- A conjoint reading of Sections 16 and 17 of the PF Act discloses that the provisions of the Act do not apply to an establishment which is belonging to or under the control of the Central or State Government and whose employees are entitled to the benefit of a contributory Provident Fund or old age pension in accordance with the scheme. An establishment can be exempted by the appropriate Government if the employees of the said establishment are in enjoyment of a Provident Fund Scheme which is not less favourable than the one under the PF Act.
In the instant case, it is required to be noted that the shareholding to the extent of 51% is that of the Central Government and to the extent of 49% is that of the ONGC. The affairs of the Respondent No.1 are regulated and controlled by its Memorandum and Articles of Association. The affairs of the Respondent No.1 are managed by the Board of Directors and that the Board of Directors functions independently and not at the behest or directions or control of the Central Government - It is questionable whether the Respondent No.1 would classify as an airline owned or controlled by the Central Government. In the matter of application of the PF Act which is undoubtedly a social welfare legislation, a liberal interpretation is required to be adopted so as not to deprive the benefit of the said social welfare legislation to the employees like the members of the Petitioner Union.
Since Section 16(1)(b) excludes an employee who has the benefit of a Provident Fund Scheme whose terms and conditions are not less favourable than the one available under the PF Act. The contract employees of the Respondent No.1 cannot be denied the benefits of the Provident Fund on both counts i.e. on the ground that they are ineligible as they are the employees of the airline controlled by the Central Government and to the benefits of the Scheme under the Trust Regulations on the ground that they are contract employees - such an interpretation would result in gross injustice to the members of the Petitioner Union and other similarly situated as them who are working in the Respondent No.1 and who as indicated have put in more than 20 years of service with the Respondent No.1.
It is directed that the benefits under the PF Act be extended to the members of the Petitioner Union who are working on contract basis with the Respondent No.1 and other similarly situated be extended latest by 31st December 2018 - petition allowed.
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2018 (9) TMI 2044 - ITAT DELHI
Revision u/s 263 - assessee Claiming Depreciation u/s 32 while claiming exemption u/s 11 - allowance of depreciation on the assets was set aside by the ld. CIT(E) to the file of AO to make proper enquiries whether the cost of such assets have been allowed as application of income in the past or not and then to decide the issue afresh - HELD THAT:- Once the issue under consideration stands decided by the ld. CIT(A) in favour of the assessee, there remains nothing to be decided in the present appeal at this stage. Moreover, since the issue has been decided in the case of CIT vs. Rajashthan & Gujrat Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT] in favour of the assessee, the order u/s. 263 would not survive at all. - Decided in favour of assessee.
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2018 (9) TMI 2043 - SC ORDER
Condonation of delay of 479 days in filing review petition - satisfactory explanation has been furnished for delay or not - HELD THAT:- Despite the fact that there is an inordinate delay of 479 days in filing the review petitions for which no satisfactory explanation has been furnished, we have gone through the review petitions on merits. No case for review of Order is made out.
The review petition is dismissed on the ground of delay as well as on merits.
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2018 (9) TMI 2042 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU BENCH
Scheme of arrangement - seeking directions regarding holding, convening and dispensation with various meetings - Section 230-232 of Companies Act - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings - directions regarding issuance of various notices issued - the scheme is approved.
Application allowed.
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