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2021 (2) TMI 1358 - ITAT MUMBAI
Disallowance of payment of royalty on trademarks paid to Cadbury Adams USA oversees company - HELD THAT:- As decided in assessee own case [2019 (10) TMI 994 - ITAT MUMBAI] assessee entered into Technical collaboration Agreement with CEPT to avail the benefits of Technical Know-how, trade secrets etc. for mixed fruit flavored and strawberry flavored sugar non-coated center filled bubble gums / chewing gums. Another agreement was entered into with the same entity for Trademarks and copyright licenses in respect of products Bubbaloo, Bubba the Cat & Adams. As per agreement, the assessee paid Technical royalty @4% and Trademark Royalty @1%. Applying the same reasoning, it was held that CEPT was authorized to sub-license the rights of the Trademark only and there was no reference to presume that the same included the right to sub-license the Technology and know-how related to the products, an adjustment of Rs.142.51 Lacs was proposed by Ld. TPO. The Ld. DRP, finding the adjustment quite similar to as made for royalty payment to CAUSA, endorsed Ld. TPO's action.
Since facts as well as reasoning of lower authorities are quite similar as in the case of royalty payment made by assessee to CAUSA, applying the same analogy, we delete the impugned addition.
Disallowance of service fees paid to Cadbury Schweppes Asia Pacific Pvt. Ltd. - HELD THAT:- We notice from the records that the identical ground has already been decided [2019 (10) TMI 994 - ITAT MUMBAI] by the Coordinate Bench of ITAT in for AY 2008-09 in assessee’s own case on merits in which ITAT has restored the matter back to the file of AO with direction to enable the revenue to take a consistent stand in the matter and also to follow the ITAT order for Assessment Year 2006-07.
Disallowance of services fees paid to Cadbury Holdings Ltd. - HELD THAT:- We notice from the records that the identical ground has already been decided by the Coordinate Bench of ITAT in [2019 (10) TMI 994 - ITAT MUMBAI] for AY 2008-09 in assessee’s own case on merits as held since facts as well as observations of lower authorities are parimateria the same as made by services fees paid by the assessee to CSAPL, taking similar view, we restore the matter back to the file of Ld. TPO / Ld. AO for re-adjudication on similar lines.
Adjustment on account of advertising, marketing and promotion (AMP) expenses - HELD THAT:- The identical ground has already been decided by the Coordinate Bench of ITAT in [2018 (11) TMI 1762 - ITAT MUMBAI] for AY 2006-07 in assessee’s own case on merits as delete the addition made by the Assessing Officer towards transfer pricing adjustment on account of AMP expenditure.
Disallowance of depreciation on marketing know how - HELD THAT:- We notice from the records that the identical ground has already been decided by the Coordinate Bench of ITAT [2019 (10) TMI 994 - ITAT MUMBAI] in assessee’s own case allowed depreciation claim applying the ratio of decision of Hon‟ble Supreme Court rendered in M/s Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT] Similar view has been taken in subsequent years. Therefore, respectfully following the consistent view of the Tribunal on this issue in assessee's own case, we allow assessee's claim of depreciation.
Disallowance u/s 14A of the Act r.w.r. 8D. - HELD THAT:- As in [2019 (10) TMI 994 - ITAT MUMBAI] for in assessee’s own case we deem it fit to restore the matter of direct / indirect expense disallowance to the file of Ld. AO for re-adjudication in the light of suo-moto disallowance offered by the assessee. As held earlier, no interest disallowance would be justified, keeping in view the assessee‟s financial parameters.
Disallowance of foreign exchange loss - HELD THAT:- We notice from the records that the identical ground has already been decided in the case of London Star Diamond Co. (I) Pvt. Ltd. [2013 (11) TMI 424 - ITAT MUMBAI] as held these are not premature cancellations by the assessee and therefore, in our considered view, the said loss being related to the FCs which are integral or incidental to the exports of the diamonds, should be allowed as business loss in view of the binding High Court or Tribunal decisions/judgments in the case of D Kishore kumar and Co [2005 (3) TMI 699 - ITAT MUMBAI] Badridas Gauridu Pvt Ltd [2003 (1) TMI 61 - BOMBAY HIGH COURT] Sooraj Muill Magarmull [1980 (9) TMI 69 - CALCUTTA HIGH COURT] etc. Thus, loss arising from cancellation of the matured contracts is allowed in favour of the assessee.
Disallowance on allocation of expenditure at Baddi Unit - HELD THAT:- We notice from the records that the identical ground has already been decided by the Coordinate Bench of ITAT in [2020 (2) TMI 1704 - ITAT MUMBAI] for AY 2007-08 in assessee’s own case settled in favour of the assessee. We notice that the Coordinate Bench has accepted the method of allocation with regard to interest, VRS decrease in stock, direct expenses, direct marketing cost and selling & distribution expenses, royalty and technical fees. The bench has remitted back to AO only the other overhead. Accordingly, we deem it fit to remit only the verification of allocation of other overhead to the file of AO. Therefore, we are inclined to accept the submission of Ld. AR. Accordingly, this ground raised by the assessee is partly allowed.
Characterizing buyback of shares as distribution of dividend and levying dividend distribution tax on such buy back - HELD THAT:- We notice from the records that the identical ground has already been decided by the Coordinate Bench of ITAT in the case of Golden Sachs (India) Securities Pvt. Ltd. [2016 (3) TMI 118 - ITAT MUMBAI] hold that transaction in question would not fall under the category of colourable device.If an assessee enters into a deal which does not violate any provision of the Act of applicable to a particular AY - the deal cannot be termed a colourable device,if it result in non-payment or lesser payment of taxes in that year.The whole exercise should not lead to tax evasion.Non-payment of taxes by an assessee in given circumstances could be a moral or ethical issue.But,for that the assessee cannot be penalised.In light of the above discussion,we are reversing the decision of the FAA and deciding the effective ground of appeal in favour of the assessee.
Disallowance on account of Annual Information Repot - HELD THAT:- As decided in the case of Basant Kumar [2015 (11) TMI 1127 - ITAT DELHI] settled in favour of the assessee and as submitted by Ld. AR, the assessee has declared the same in the subsequent assessment year, there is no loss as such to the revenue. Therefore, we are inclined to accept the submission of Ld. AR. Accordingly, this ground raised by the assessee is allowed.
Short grant of TDS credit - HELD THAT:- We notice from the records that the Ld. AO has granted credit for TDS only to the extent of Rs. 1,69,04,517/- as Rs. 2,99,18,916/- against claimed in the return of income file. Therefore, we are directing AO to verify the claim of the assessee and accordingly allow the TDS credit based on the record submitted before him. Accordingly, this ground raised by the assessee is allowed.
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2021 (2) TMI 1357 - SUPREME COURT
Cancellation of agreements with respondent - seeking to ensure that all the projects in which money has been taken from the buyers their money is refunded or the same is constructed and handed over in a reasonable period of time - appointment of court receiver or form a committee headed by a retired judge of this Hon'ble Court along with other suitable persons from different fields to monitor / handle the projects of Respondent 6 & 7 in which money has been taken from the buyers.
HELD THAT:- The 1986 Act as well as the subsequent legislation contain provisions for representative consumer complaints. One or more home buyers can consequently seek relief to represent a common grievance for a whole class of purchasers of real estate. The RERA similarly contains specific provisions and remedies for dealing with the grievance of purchasers of real estate. The provisions of the IBC have specifically taken note of the difficulties which are faced by home buyers by providing for remedies within the fold of the statute. 8 Entertaining a petition of this nature will involve the Court in virtually carrying out a day to day supervision of a building project. Appointing a Committee presided over by a former Judge of this Court would not resolve the problem because the Court will have nonetheless to supervise the Committee for the reliefs sought in the petition under Article 32.
Insofar as the remedies of a criminal investigation are concerned, there is reason for this Court not to entertain a petition directly under Article 32 in the present set of facts. Adequate remedies are available in terms of the Code of Criminal Procedure 1973. The statutory procedures which are enunciated have to be invoked. Adequate provisions have been made in the statute to deal with the filing of a complaint and for investigation in accordance with law.
The Court has no reason to doubt the genuineness of the grievance which has been espoused by the petitioner. However, the issue is whether his recourse to Article 32 is the correct remedy when alternative modalities are available and particularly since the engagement of the Court in a petition of this nature would involve a supervision which does not lie within the province of judicial review - Real estate projects across the country may be facing difficulties. The intervention of the Court cannot be confined to one or a few selected projects.
Nothing contained in the present judgment will affect those proceedings or similar cases which have been monitored. In the present case, there is no reason to assume that the petitioner represents a class, apart from the other reasons set out earlier for declining intervention - the petition under Article 32 not entertained.
Petition disposed off.
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2021 (2) TMI 1356 - MADRAS HIGH COURT
Money Laundering - proceeds of crime - diversion of funds into the shell companies - HELD THAT:- There is no shred of material to show that Sivaramakrishnan was a recipient of any amount, except the salary, bonus and other emoluments, which were paid to him, in the course of his employment as Accountant in FLCI.
Even the C.B.I. has not found that Sivaramakrishnan benefitted financially from the criminal activity of fudging records. Of course, these findings of the C.B.I. are not binding on the Enforcement Directorate, but, this Court cannot turn a Nelson's eye to this, especially in the light of the fact the Enforcement Directorate themselves have filed a separate complaint in C.C.No.63 of 2016 against Farouk Irani and Sherna F. Irani for diverting the loan amounts into their personal accounts and into the account of their family Trust and for projecting them as untainted money.
The Enforcement Directorate cannot be agreed upon that the salaries and perquisites that were paid to Sivaramakrishnan (A.1) while he was in employment with FLCI would amount to proceeds of crime and any property purchased with that would stand tainted. Albeit the presumption under Section 24 of the PML Act, on facts, it is held that the impugned prosecution of Sivaramakrishnan (A.1) and his wife Ratha (A.2) under the PML Act is misconceived and the same is accordingly quashed.
This Criminal Original Petition is allowed.
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2021 (2) TMI 1355 - KARNATAKA HIGH COURT
Non-removal of office objections - appellant submitted that owing to urgency in the matter, a memo was moved for listing the case before the Court - HELD THAT:- It is deemed appropriate to dispose of this appeal by relegating appellant to the Appellate Tribunal reserving liberty to him to press for interim /protective orders pending disposal of the appeal by the Appellate Tribunal. It is noted that the next date of hearing by the Appellate Tribunal is 11.02.2021. On the said date or any subsequent date, the Appellate Tribunal may consider the interim application of the appellant as well as the main matter.
Pending disposal of the appeal filed by the appellant herein before the Appellate Tribunal, the respondent shall not take any precipitative action pursuant to the impugned order as well as the notice dated 07.06.2018.
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2021 (2) TMI 1354 - KARNATAKA HIGH COURT
Maintainability of appeal - impugned notice has been issued during the pendency of the appeal before the Appellate Tribunal - HELD THAT:- It is considered appropriate to dispose of this appeal by relegating appellant to the Appellate Tribunal reserving liberty to him to press for interim /protective orders pending disposal of the appeal by the Appellate Tribunal. It is noted that the next date of hearing by the Appellate Tribunal is 11.02.2021. On the said date or any subsequent date, the Appellate Tribunal may consider the interim application of the appellant as well as the main matter.
Pending disposal of the appeal filed by the appellant herein before the Appellate Tribunal, the respondent shall not take any precipitative action pursuant to the impugned order as well as the notice dated 07.06.2018.
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2021 (2) TMI 1353 - MADRASHIGH COURT
Money Laundering - cheating the complainant - accused entered into an amicable settlement - offences under Sections 419 and 420 r/w 34 IPC - Section 45(1) r/w 3, 4 and 8(5) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The complete answer to the arguments of the learned counsel for the petitioners is available in the recent amendments to Sections 3 and 44 of the PML Act, vide Act No. 23 of 2019. The amendment clearly states that a prosecution under the PML Act can proceed notwithstanding the result of the prosecution under the predicate offence. That apart, the amendment also clarifies that, the date of commission of the predicate offence is not relevant and that, if a person projects the proceeds of crime as untainted, it is a continuing offence. Hence, the arguments fail.
However, the learned counsel for the petitioners prayed that a direction may be issued to the trial Court to complete the trial in a time bound manner.
This criminal original petition is dismissed with a direction to the trial Court to complete the trial within a period of six months from the date of receipt of a copy of this order subject to the appearance and cooperation of the petitioners/accused before the trial Court.
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2021 (2) TMI 1352 - SC ORDER
Reopening of assessment made on protective basis and its correctness - HELD THAT:- There is a delay of 433 days in filing this Special Leave Petition and we do not find any justifiable reason to condone this huge delay.
Special Leave Petition is, accordingly, dismissed on the ground of delay.
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2021 (2) TMI 1351 - ITAT HYDERABAD
Income Taxable in India - Income deemed to accrue or arise in India - foreign allowances received for services performed in the Netherlands - assessee had admittedly worked as an employee of M/s IBM India Pvt. Ltd.as deputed in lieu of service performed outside India which in turn led to the amount in issue received as foreign allowance(s) - HELD THAT:- Revenue’s case in line with lower authorities action is that sec. 5(2) comes into play the moment impugned sum has been credited or received in India and any deviation thereof shall render the statutory provisions itself as redundant.
We find no merit in Revenue’s foregoing stand. Various judicial precedents in CIT vs. Avtar Singh Wadhwan [2000 (11) TMI 116 - BOMBAY HIGH COURT]; DIT vs. Prahlad V Rao[2010 (11) TMI 803 - KARNATAKA HIGH COURT] and Utanka Roy [2016 (12) TMI 876 - CALCUTTA HIGH COURT] hold that such an income derived by a non- resident for performing service activities outside India, the accrual of income thereon happens outside India could not be brought to tax in India as per s.5(2) of the Act. We thus delete the impugned addition for this precise reason alone. Appeal of assessee allowed.
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2021 (2) TMI 1350 - ANDHRA PRADESH HIGH COURT
Constitutional Validity of action of placing the petitioner under suspension from service - violative of principles of natural justice and Articles 14, 19(1)(g) and 21 of the Constitution of India - seeking reinstatement in the same post - Whether order of suspension is liable to be set aside? - HELD THAT:- The meaning of suspension is to debar from any privilege of office, emoluments etc., for a time. The real effect of an order of suspension is though an employee is continued to be member of the Government service, he is not permitted to work, further, during the period of his suspension, he is paid only some allowances generally called subsistence allowance, which is less than his salary instead of pay and allowances he will be entitled to, if he is not suspended.
The petitioner is undisputedly working as Assistant Director in the office of the Regional Joint Director, School Education Department, Kadapa. The allegation against him is that he is disclosing official information and minting money and acquired property at Visakhapatnam with the ill-gotten money and that he is sending anonymous complaints against the other officials working in the department and that he is disclosing official information to outsiders thereby tarnishing the image of the department. The allegations made in the complaint submitted by the said Anil disclose that he also submitted certain voice messages along with the complaint which discloses that he is committing theft of information in files and providing those files to the outsiders - Though the petitioner made certain attributions against the other employees working in the department, there is absolutely nothing on record to establish the same prima facie and the petitioner never gave any complaint against those persons, who allegedly subjecting the petitioner to harassment while discharging his duties, for the first time, the petitioner invented the story of harassing him by the Superintendents working in the office obviously for the reasons best known to him, may be to come out from the complaint.
Clause (1) of Article 311 of the Constitution of India has no application to a situation where a government servant has been merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. In certain cases, suspension may cause stigma, even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot, in the strict legal sense and by any stretch of imagination, be treated as a punishment - An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
Even if the present case is examined, the Court must be slow in interfering with such suspension orders. When the competent authority recorded its satisfaction based on the material placed before him along with the complaint that itself suffice to place a Government servant under suspension. Though the effect of suspension is serious on the career of the employee but debarring him from discharging his duties temporarily is only to avoid his interference or continuously indulging in such activities prejudicial to the interest of the state.
In view of the law declared by the Apex Court in STATE OF ORISSA VERSUS BIMAL KUMAR MOHANTY [1994 (2) TMI 307 - SUPREME COURT], this Court has to examine the facts of the present case. The first requirement is gravity of the charge of misconduct. The allegation against the petitioner is that he is disclosing information to the third parties and collected money. The same is recorded in voice messages and such voice messages are also allegedly sent to the 4th respondent but it is not placed on record either by the petitioner or by the Government Pleader for Services. Even it was not denied by the petitioner in the affidavit except contending that it is mala fide. In the absence of denial, the voice messages, if any annexed to the complaint in support of the allegation therein, are true, it is a grave misconduct since such acts are prejudicial to the interest of the State. Therefore, keeping in view of the gravity of the misconduct sought to be enquired into, the petitioner is placed under suspension by the 4th respondent - The second requirement to place the Government servant under suspension is there must be some evidence before placing a Government servant under suspension. Here in this case, the 4th respondent concluded that there is prima facie evidence in support of the allegations perhaps the voice messages or other material, though not referred specifically in the order. The said voice messages are sufficient to form the basis to prima facie to conclude that petitioner is indulged in the activities prejudicial to the interest of the State.
The Courts must be slow in interfering with the order of suspension while exercising power under Article 226 of the Constitution of India more particularly when the Court is satisfied that there is some material in support of the satisfaction recorded by the 4th respondent and not tainted by mala fides.
The order impugned in the writ petition placing the petitioner under suspension till completion of inquiry, he appears to be erroneous since the suspension order is required to be reviewed at the end of every six months as discussed in the earlier paras vide G.O. Ms. Nos. 86 and 526 referred above. Hence, it is obligatory on the part of the 4th respondent to review the order at the end of every six months period and take administrative decision either to continue the Government servant under suspension or revoke the same in the interest of the State - there are no ground to set aside the impugned order of suspension.
The Writ Petition is dismissed.
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2021 (2) TMI 1349 - SC ORDER
Cessation of liability - Additions u/s. 41(1) - waiver towards outstanding principal loan amount - waiver of outstanding principal loan amount is a capital receipt or not? - HC confirmed order of Tribunal deleting the addition made by the AO and confirmed by the CIT(A) by considering the amount as capital receipt - HELD THAT:- SLP dismissed.
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2021 (2) TMI 1348 - SC ORDER
Seeking explanation of delay of 1719 days - revenue had moved the Karnataka High Court in September, 2016 and it was only in March, 2020 that the appeal was dismissed on the ground that the appeal has to be filed before this Court - HELD THAT:- Keeping the issue of jurisdiction open, even on merits, in the facts of this case, no interference is warranted since the clarificatory notification was issued on 1 March, 2008 and the clearances in this case were effected admittedly prior thereto. Moreover, the Tribunal has observed that the demand against the respondents could be sustained for a period of one year prior to the issuance of the notice to show cause.
There are no merit in the appeal. The appeal is, therefore, dismissed on the ground of delay as well as on merits.
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2021 (2) TMI 1347 - MADRAS HIGH COURT
Maintainability of appeal - HELD THAT:- The appellant has made out a prima facie case for entertaining this appeal.
Accordingly, the Civil Miscellaneous Appeal is admitted to consider the following substantial questions of law:
1. Whether the cryptic final order dated 03.03.2020 passed by the Tribunal without considering any of the pleas raised by the appellant including the preliminary objections taken out by them in their written arguments supported by judicial pronouncements apart from traversing beyond the scope of the show cause notice contrary to the pronouncements of the Hon'ble Apex Court is maintainable in law?
2. Whether the Tribunal was right in overlooking the communication received from the revenue authorities accepting the classification of their impugned activities under the taxable "Information Technology Software Services" and accordingly asking the appellant to pay the tax under the said entry after amending their registration certificate and also closing the dispute thereafter on the appellant remitting the tax as informed to them so as to confirm the order of the 1st appellate authority sustaining the demand, without giving any set off to the amount already paid by them for the same period is proper and correct?
3. Whether the Tribunal was right in not considering the decision of the co-ordinate Benches of the Tribunal in similar matter holding the issue in favour of the appellant herein inspite of the said decision having been specifically brought to its notice?
List the appeal on 03.06.2021.
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2021 (2) TMI 1346 - PUNJAB AND HARYANA HIGH COURT
Maintainability of petition - refund payable to the petitioner has been credited to its account - HELD THAT:- In compliance with the order dated 09.02.2021 passed by this Court, affidavit of the Deputy Commissioner of Customs, respondent No.2 has been filed, according to which the refund payable to the petitioner has been credited to its account, rendering the present writ petition infructuous.
Disposed of as infructuous.
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2021 (2) TMI 1345 - BOMBAY HIGH COURT
Dishonour of Cheque - Validity of order allowing the accused/respondent no. 1 to cross examine the complainant - it is alleged that accused received the SCN, but failed to reply and neglected to comply with the statutory notice and to pay the amount - section 138 of NI Act - HELD THAT:- In the present matter also inspite of notice no reply is filed nor notice was complied by the accused. Thus he was having first opportunity to set out his defence. In the normal circumstances, the party is not required to seek leave to cross examine the witness of an advisory.
In view of the judgment of the Apex Court in RUKMAKAR @ BHARAT TULSHIDAS NAIK VERSUS SANTOSH SHABA GAONKAR & ANR [2019 (4) TMI 2105 - BOMBAY HIGH COURT], the accused is required to file an application seeking leave to cross examine the complainant. At that juncture the accused is having the second opportunity to set out grounds of his defence. Thirdly even during the arguments on that application and answer to the questions which may be posed by the learned Magistrate which is permissible. But it appears that he has not set out any ground or probable defence. Even in this matter also he failed to file any say and appear in the matter.
The learned JMFC erred in granting the application of the accused to cross examine the complainant without there being any probable defence or any reason in the said application. The learned JMFC, ought to have considered that there was no reply to the statutory notice nor there is any probable defence set out in the application.
Application rejected.
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2021 (2) TMI 1344 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Application for revival of Corporate Insolvency Resolution Process (CIRP) rejected - CIRP stands terminated and Moratorium withdrawn - HELD THAT:- A settlement was arrived at between the parties, in pursuance whereof the Appellants received some post dated cheques. It appears that it was at the instance of the parties that CIRP was sought to be terminated.
The Adjudicating Authority banking upon the judgment of the Hon’ble Apex Court in Swiss Ribbons Pvt. Ltd. & Anr. V. Union of India & Ors. [2019 (1) TMI 1508 - SUPREME COURT] allowed the Appellants- Financial Creditors to withdraw the application and terminated the CIRP. It further emerges from the order that neither the settlement terms were filed nor the same were brought on record and incorporated in the order of the Adjudicating Authority with liberty to revive/ restore the CIRP in the event of the Corporate Debtor not adhering to the terms of the settlement or post dated cheques issued to Appellants being dishonored.
In view of this position, it cannot be said that the Settlement Terms not incorporated in the order of the Adjudicating Authority assumed the character of the decree of the Court, breach whereof would entitle the Appellants- Financial Creditors to come back and seek restoration/ revival of CIRP.
There are no legal infirmity in the impugned order - the appeal being devoid of any merit, cannot be allowed - appeal dismissed.
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2021 (2) TMI 1343 - RAJASTHAN HIGH COURT
Seeking grant of bail - offence(s) punishable under Section(s) 420, 467, 468, 471, 120-B IPC and under Sections 19/54, 14/57 of Rajasthan Excise Act - HELD THAT:- Having regard to the totality of the facts and circumstances of the case and taking into consideration the fact that the alleged offence(s) levelled against the petitioner(s) is/are triable by Magistrate, without expressing any opinion on the merits of the case, it is deemed just and proper to grant bail to the accused petitioner(s) under Section 439 Cr.P.C.
This/these bail application(s) filed under Section 439 Cr.P.C. is/are allowed and it is directed that petitioner(s) Chandu @ Chandra Prakash S/o Shri Prahlad Ram shall be released on bail in connection with FIR No.31/2014 of Police Station Guda Endla District Pali provided he/she/they execute(s) a personal bond in a sum of Rs. 50,000/- with two sound and solvent sureties of Rs. 25,000/- each to the satisfaction of learned trial court for his/her/their appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
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2021 (2) TMI 1342 - ITAT DELHI
Exemption u/s 11 - applicability of provisions of Section 2(15) - HELD THAT:- Appeal of the revenue has been dismissed by the Hon’ble Jurisdictional High Court 2016 (8) TMI 1588 - DELHI HIGH COURT] referring to the decision of the Court in the case of Delhi Music Society [2011 (12) TMI 124 - DELHI HIGH COURT] wherein it was held that the assessee is a charitable organization and the receipts of the assessee are eligible for exemption. Decided against assessee.
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2021 (2) TMI 1341 - KARNATAKA HIGH COURT
Maintainability of revision petition - appeal would lie under Section 378(4) of the Cr.P.C. or not - Dishonour of Cheque - Section 14 of the Limitation Act - HELD THAT:- In the instant case also, against the judgment of acquittal, the complainant had wrongly approached the learned FTC-VII and FTC-XIII instead of approaching this Court under Section 378(4) of the Cr.P.C. However, both the parties contested the matter before the said FTC-VII and FTC-XIII, which matter also ended in acquittal of the accused. Therefore, there are judgments of acquittal by both the Trial Court as well by the Sessions Judge's Courts in the matter. Thus, in either way, the challenge, if any, the complainant intends to make against the impugned judgments of acquittal, can by no stretch of imagination be through a revision under Section 397 of the Cr.P.C. and it is only under Section 378(4) of the Cr.P.C. in the form of a criminal appeal.
Considering the fact that despite there being a specific provision for challenging the acquittal order under Section 378 of the Cr.P.C., since the complainant once again initiated and proceeded on revision under Section 397 of the Cr.P.C., instead of an appeal under Section 378(4) of the Cr.P.C., and more importantly, much time has been taken by the petitioner in his attempt claiming that he would convince the Court in the light of the judicial precedents that, the present revision petitions are maintainable, by imposing cost, the prayer of the learned counsel for the petitioner for withdrawal of these two revision petitions with liberty to file criminal appeals be allowed.
Appeal allowed.
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2021 (2) TMI 1340 - KARNATAKA HIGH COURT
Seeking a writ of certiorari or quashing the Government Order dated 25.09.2019 granting consent for investigation by the Central Bureau of Investigation (CBI) - appellant submits that even though no FIR has been registered against the appellant, yet search was conducted in the premises of the appellant by the CBI - HELD THAT:- It is deemed appropriate to dispose of this writ appeal with liberty to the appellant to take recourse to such legal remedy as may be available to him under the law, in case the appellant is named as accused in the FIR. Needless to state that in such case, the order passed by the learned Single Judge dated 22.07.2020 shall not be construed as prejudicial to the interest of the appellant. It is further clarified that it may be open for both the parties to raise all the contentions which are available to them in law.
The appeal is disposed of.
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2021 (2) TMI 1339 - MADRAS HIGH COURT
Demand of differential tax on the goods sold in terms of Section 3(4)(b) of the Tamil Nadu Value Added Tax - payment of concessional rate of tax by availing the benefit of Section 3(4)(a) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The court there held that it is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended - It observed that provision for surcharge under the Finance Act, 2002 was in existence since 1995, insofar as levy of surcharge for block assessment was concerned. However, it was introduced by insertion of aforesaid proviso to Section 113 therefore a question arose as to whether this surcharge on block assessment has been levied for the first time by the aforesaid proviso coming into effect from 1-6-2002 or it is only clarificatory in nature because of the reason that the provision for surcharge was made in the Finance Act in the year 1995 and that covered surcharge on block assessment as well.
In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.
The amendment to Section 3(4)(b) of the Tamil Nadu Value Added Tax Act, 2006 received the assent of the Governor on 26.09.2011. It was notified vide G.O.Ms.No.135, Commercial Taxes and Registration (B1), dated 31.10.2011 for the purpose of Section 1(2) of Act No.27 of 2011 - Though the said amendment was notified vide G.O.Ms.135, Commercial Taxes and Registration (B1), dated 31.10.2011, the Government appointed the 1st day of April 2012 as the date from which the said amendment was to come into force. It has not declared that the amendment will come into force from an anterior date.
Since the Government has not given the amendment effect from an earlier date during the Assessment Years 2010-2011 & 20112012, it cannot be given effect with retrospective date on an earlier date. This aspect was not brought to the attention of the Court in the two decisions which were cited.
Cases remitted back to the respondents for a limited purpose for passing fresh Revised Assessment Orders by allowing the petitioner to adjust the Input Tax Credit in terms of Section 3(4)(b) of the Tamil Nadu Value Added Tax Act, 2006 which benefit has not been given to the petitioner - petition disposed off.
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