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Showing 1 to 20 of 1458 Records
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2023 (8) TMI 1458 - SC ORDER
Grant of blanket exemption from personal appearance u/s 205 of the Code of Criminal Procedure, 1973 - Seeking grant of bail - money laundering - proceeds of crime - materials procured by the petitioner from the proceeds of the crime of illegal possession and sale of Monitor Lizard hemipenises - whether a case for exemption from personal appearance is made out? - HELD THAT:- The blanket exemption as prayed by the petitioner cannot be granted under Section 205 of the Code of Criminal Procedure, 1973. However, if for sufficient and cogent reasons, the petitioner is unable to appear before the Trial Court, he can always make an application through his advocate for grant of exemption from personal appearance.
SLP disposed off.
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2023 (8) TMI 1457 - SC ORDER
Maintainability of application under Section 7 of IBC - application barred by limitation which is prescribed under Article 137 of the Limitation Act, 1961 or not - Appellant made various payments up to February, 2017 but also on 07.03.2019 sent a proposal for one time settlement of term loan which tantamounts to acknowledgement - it was held by NCLAT that 'There is hardly any substance in the present appeal for the purpose of interfering in the order of admission on the ground of limitation.'
HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2023 (8) TMI 1456 - ITAT RAIPUR
Rectification of mistake u/s 154 - Addition u/s.36(1)(va) r.w.s. 43B - Delayed deposit of employee’s share of contributions towards ESI/PF - HELD THAT:- On a careful perusal of the statutory provision r.w. settled position of law as had been expounded in various judicial pronouncements, we find that it is only in a case where an order passed by the A.O is found to be suffering from a mistake which is glaring, patent, apparent and obvious from record that a recourse can be sought for rectification of the same u/s.154 of the Act. Our aforesaid view is supported by the landmark judgment of T.S. Balaram ITO [1971 (8) TMI 3 - SUPREME COURT] as held that power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record".
Considering the limited scope of Section 154 of the Act, we are of the considered view that as the issue involved in the present appeal, i.e. disallowance u/s.36(1)(va) of the Act of the assessee’s claim for deduction of the delayed deposit of employees share of contribution towards ESI/PF at the relevant time was not free from doubts and debate, therefore, the same could not have been brought within the realm of rectification u/s.154.
Our aforesaid conviction is all the more fortified by the fact that as the assessee has assailed the order passed by the A.O u/s.154 of the Act, inter alia, on the ground that prior to the judgment of Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT] there were two school of thoughts on the issue in hand, i.e. as to whether or not the delayed deposit of the employees share of contribution towards ESI/PF was allowable as deduction u/s.43B of the Act, therefore, for the said reason no disallowance of the same could have been made u/s.143(1) of the Act. The aforesaid contention of the Ld. AR takes the case of the assessee beyond the scope and ken of Section 154 of the Act. Decided against assessee.
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2023 (8) TMI 1455 - ITAT DELHI
Addition u/s 68 - assessee has failed to furnished any satisfactory explanation of the source of cash deposited during demonetization period - CIT(A) deleted addition - HELD THAT:- Since the assessee company, as per the AO is in the business of real estate, then the keeping cash on sites of construction and keeping main cash books in the central office is a normal practice to be adopted by such company therefore ignoring main cash book is a vital omission on the part of AO which was resulted into difference in the amount of cash deposit and cash balance only based on site cash books ignoring the main cash book.
CIT(A) has relied on the judgment of Kulwant Rai [2007 (2) TMI 185 - DELHI HIGH COURT] and Jaya Aggarwal [2018 (3) TMI 1358 - DELHI HIGH COURT] observed that when the assessee has shown cash withdrawals during pre demonetization period more than the cash deposited during demonetization then the source cannot be disputed merely on the assumption that such withdrawn amount may have spent by the assessee for some other purpose without any adverse positive material showing such facts.
Hon’ble jurisdictional High Court held that in absence of any material in support of the view that withdrawals were spent for some other purpose, the conclusion of Tribunal has to be held has right in treating the cash withdrawals from the bank as source of cash found.
Thus, as we have noted above, the AO has ignored main cash book while disputing the source of cash and making addition and the ld. CIT(A) considered entire facts and circumstances in the right prospective, no valid reason to interfere with the findings arrived by the ld. CIT(A) - Decided against revenue.
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2023 (8) TMI 1454 - ITAT DELHI
Addition u/s 68 - assessee has failed to explain the source of cash deposited during demonetization period - contention of AO are precisely that the cash withdrawals by the assessee are not near to the dates of cash deposits and when the cash was withdrawal for wages payments & other purposes then there is no reason why such expenses were not incurred and a running concern could not have huge cash for long period - CIT(A) deleted addition - HELD THAT:- As comparison and figures clearly show that the assessee was consistently maintaining huge cash balance as per his business prudence and there was huge cash withdrawals which are much higher than the amounts of cash deposited by the assessee to its bank account during pre & post demonetization period and we are unable to see any discrepancy defect or perversity therein. As pertinent to mention that the ld. Senior DR did not dispute above noted factual position noted by the ld. CIT(A) before granting relief to the assessee.
CIT(A) after considering the cash withdrawals from the banks as per bank statements and cash book noted that the same cannot be manipulated in any manner. We are in agreement with the conclusion drawn by the ld. CIT(A) that the appellant has duly given the site cash books as well as main cash book showing cash balance and the cash deposited to its bank account was created due to huge opening cash balance as per audited books and return of income filed by the assessee before demonetization declaration, and amount of cash withdrawals from 01.04.2016 to till demonetization period which was higher during immediately preceding FY 2015-16.
Thus we are inclined to agree with the conclusion drawn by the ld. CIT(A) that the assessee has successfully demonstrated source of cash deposit to its bank account during demonetization period and hence not addition is called for. We are unable to see any ambiguity perversity or any valid reason to interfere with the findings arrived by the ld. CIT(A) and thus we uphold the same. Accordingly, grounds of revenue are dismissed.
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2023 (8) TMI 1453 - ITAT DELHI
Addition u/s. 68 - as per DR assessee has failed to explain the source of cash deposited during demonetization period - CIT-A deleted addition
As argued by AO cash withdrawals by the assessee are not near to the dates of cash deposits and when the cash was withdrawal for wages payments & other purposes then there is no reason why such expenses were not incurred - as per AO assessee has prepared cash book in such a way showing cash withdrawals and cash deposits during demonetization period which is after thought and self serving -
HELD THAT:- We are in agreement with the conclusion drawn by the ld. CIT(A) that the appellant has duly given the site cash books as well as main cash book showing cash balance of Rs. 1,24,68,418/- and the cash deposited to its bank account was created due to huge opening cash balance of Rs. 10,95,290/- as on 01.04.2016, which was enhanced to Rs. 60,02,427/- after inclusion of cash withdrawal Rs. 50,50,000/- and deduction of some expenses during April 2016.
We are also in agreement with the conclusion of ld. CIT(A) that as per audited books and return of income filed by the assessee before demonetization declaration, and amount of cash withdrawals from 01.04.2016 to till demonetization period amounting to Rs. 2,63,10,000/- which was higher than the cash withdrawals during immediately preceding FY 2015-16 amounting to Rs. 55,50,000/-.
Keeping in view above noted factual position which has not been controverted by the AO or by DR we are inclined to agree with the conclusion drawn by the ld. CIT(A) that the assessee has successfully demonstrated source of cash deposit to its bank account during demonetization period and hence not addition is called for. We are unable to see any ambiguity perversity or any valid reason to interfere with the findings arrived by the ld. CIT(A) and thus we uphold the same. Accordingly, grounds of revenue are dismissed.
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2023 (8) TMI 1452 - KERALA HIGH COURT
Maintainability of petition - availability of alternative remedy - liability of retired partner for payment of the assessed amount of KGST - HELD THAT:- The question of whether the petitioner retired from the partnership firm on 17.10.2000 and whether he had intimated the authorities by giving notice in Form 3 is a disputed question of fact that cannot be gone into by this Court. Admittedly, there is an alternate remedy of appeal under the KGST Act under Section 34 of the Act.
The writ Court is not expected to go into the disputed question of fact. Therefore, the petitioner is relegated to the appellate authority. An interim order was granted in this writ petition when the petition was filed, which remains in operation. Therefore, it is provided that if the petitioner files an appeal within a period of 30 days, the appellate authority will decide the appeal on merit without going into the question of delay inasmuch as the writ petition has remained pending before this Court for all these years - For a period of 30 days from today, the interim order dated 08.07.2014 passed by this Court shall remain in operation. The appellate authority is required to decide the appeal expeditiously, preferably within a period of two months from the date of its filing. If the petitioner does not file the appeal within one month from today, the authority concerned will be free to recover the amount assessed along with interest and penalty from the petitioner as per the relevant provisions of law.
The present writ petition stands finally disposed of.
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2023 (8) TMI 1451 - RAJASTHAN HIGH COURT
Territorial jurisdiction to entertain the present writ petition - place of arising of cause of action - petitioners were receiving the goods for onward sale etc. in the State of Punjab were manufactured by the respondent No.7 in the State of Rajasthan - HELD THAT:- No part of cause of action has arisen within the territorial jurisdiction of this Court. Merely because the petitioner-Firm was having a business transaction with respondent No.7 and certain evasions having been pointed out in the same, will not give any cause of action to the petitioner-Firm to approach this Court by way of filing the present writ petition.
Secondly, merely because the show cause notice has been issued to the petitioner-Firm on the basis of a common file maintained by the official respondents, will not be relevant to draw a presumption that part of cause of action has arisen to the petitioner-Firm in the territorial jurisdiction of this Court, merely because on the basis of the same common file, the show cause notice has been issued to the respondent No.7.
In view of authoritative pronouncements of the judgments by the Hon’ble Supreme Court, the arguments of learned Sr. Counsel that the proceedings out of the present show cause notice have started from a file of even number from which the proceedings were started against the respondent No.7, has no bearing giving rise to any cause of action to file the present writ petition before this Court.
Merely because respondent No.7- M/s. Gagan Pharmaceuticals, Sriganganagar has filed the writ petition against the show cause notice issued to it before this Court and the same is pending, will not give any cause of action to the petitioner-Firm to file a writ petition before this Court against the show cause notice issued to it in State of Punjab.
The present writ petition is not maintainable before the High Court of Judicature for Rajasthan at Jodhpur and, therefore, the same is dismissed on the ground of territorial jurisdiction.
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2023 (8) TMI 1450 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative remedy - deposit of tax was not voluntary - HELD THAT:- Appellant contends that the representation of the petitioner would be duly adverted to and the competent authority shall pass necessary order, in accordance with law.
It goes without saying that as and when such orders are passed, the petitioner shall have the liberty of pursuing further remedies, as are available to him, as per law.
The writ petition is disposed off.
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2023 (8) TMI 1449 - BOMBAY HIGH COURT
Exemption u/s 11 - denial of claim vide assessment order u/s 143(3) as Assessee-Trust had not furnished proper information to the Charity Commissioner and there was shortfall in making provision of Indigent Patients Fund (“IPF”) - Also Assessee-Trust had generated huge surplus and therefore, the intention of the trust was profit making as running a canteen in the hospital with profit motive and was not providing free meals - CIT(A) followed the orders of his predecessor for Assessment Years 2008-2009 and 2009-2010 and decided the issue in favour of Assessee which was upheld by ITAT - HELD THAT:- ITAT in the impugned order has also followed what its co-ordinate Bench held in its order [2016 (4) TMI 1307 - ITAT PUNE] for Assessment Years 2008-2009 and 2009- 2010. Since there was nothing on record before the ITAT (or even before us) that the order of ITAT dated 15th April 2016 has been set aside or overruled in any manner by the High Court, the ITAT found no reason to interfere with the order of CIT(A). Therefore, we also find no reason to interfere with the order of ITAT. Decided against revenue.
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2023 (8) TMI 1448 - SUPREME COURT
Prayer for recall of the Appellant as a witness in the trial before the Court below for further examination has been rejected - Section 311 of Code of Criminal Procedure - HELD THAT:- In Manju Devi v. State of Rajasthan, [2019 (4) TMI 2152 - SUPREME COURT], this Court emphasized that a discretionary power like Section 311, Code of Criminal Procedure is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone.
In Harendra Rai v. State of Bihar [2023 (8) TMI 1389 - SUPREME COURT], a 3-Judge Bench of this Court was of the opinion that Section 311, Code of Criminal Procedure should be invoked when '... it is essential for the just decision of the case.'
The Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request for recall of the Appellant Under Section 311, Code of Criminal Procedure was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined.
The orders of the Courts below are set aside. The application of the Appellant Under Section 311, Code of Criminal Procedure for his recall to be further examined as a witness stands allowed - Appeal allowed.
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2023 (8) TMI 1447 - KERALA HIGH COURT
Robbery - snatching away a gold chain weighing 16 grams belonging to PW1 - seeking to recall application under Section 311 of Cr.P.C - whether there was any chance of identification which is essential for the just decision of the case? - HELD THAT:- Section 311 Cr.P.C provides that any Court may, at any stage of inquiry, trial, or other proceedings under the Cr.P.C., summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the matter.
The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties - Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.
The application under Section 311 of Cr.P.C was filed at the very fag end of the trial. The prosecution had enough opportunity earlier. The delay in filing the application is one of the most important factors that has to be explained in the application.
This Court is of the view that the learned Magistrate was not justified in allowing the application to recall the witness - The application seeking the recalling of witness stands dismissed.
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2023 (8) TMI 1446 - SC ORDER
Money Laundering - grant of pre-arrest bail - HELD THAT:- The second supplementary complaint after investigation has already been filed. During the course of the investigation, the appellant was not arrested though his statement was recorded.
Hence, a case is made out to grant pre-arrest bail to the appellant. Accordingly, it is directed that in the event of arrest, the appellant shall be enlarged on bail on such terms and conditions as may be deemed proper by the competent court.
The warrant issued against the appellant shall not be executed - Appeal allowed.
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2023 (8) TMI 1445 - SUPREME COURT
Doctrine of merger and doctrine of res-judicata versus Law of precedents - Refund to Himanshu Dewan & Sonali Dewan and Ors, the amount collected towards excess sale area, and to execute supplementary correction deeds within six weeks from the date of the order - seeking a refund of the amounts paid by them towards the increased sale area alleging, inter alia, that there was neither increase in the carpet area nor in the built-up area, and that the demand towards increase in the sale area made by the Appellant was illegal - Arising of cause of action - HELD THAT:- The Appellant, as per the contractual terms, is well within their right to ask for enhanced sale consideration on increase in the sale area as defined. The Respondents have not questioned and challenged this right of the Appellant. They have challenged the computation and calculations. The Respondents have the right to ask for calculations and details, when the Appellant had stated that the sale area had increased. On being satisfied with the calculation, the Respondents could have accepted the increase in the sale area, if the same was in accordance with the agreement. The 'cause of action' arose when the Appellant insisted and compelled the Respondents/allottees to make payment, but did not furnish the details and particulars to enable the Respondents/allottees to ascertain the actual allocated sale area - In the context of the present case, it is an accepted position that the sale deeds were executed with the Respondents between the period from 13.04.2018 to as late as 09.01.2020. In view of the aforesaid, the complaints filed by the Respondents cannot be dismissed on the ground of being barred by limitation Under Section 69 of the Act.
Similar issues had arisen before this Court in ARIFUR RAHMAN KHAN AND ORS. VERSUS DLF SOUTHERN HOMES PVT. LTD. AND ORS. [2020 (8) TMI 852 - SUPREME COURT]. This Court accepted the argument by the consumers that execution of a deed of conveyance by a flat buyer would not preclude a consumer claim for compensation for delayed possession in a case where the allottees were not given an option, but were rather told that the possession would not be given and the conveyance deed would not be executed without the acceptance of the offer of possession terms.
The dismissal of the appeal in the case of PAWAN GUPTA VERSUS EXPERION DEVELOPERS PVT LTD DELHI [2020 (8) TMI 940 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India. There is a clear distinction between the binding law of precedents in terms of Article 141 of the Constitution of India and the doctrine of merger and res judicata.
The order of this Court dismissing the appeal in the case of Pawan Gupta cannot be read as a precedent and applied to the cases in hand. In fact, precedents cannot decide questions of fact. The decision in the case of Pawan Gupta was based on evidence adduced by the Appellant/builder/developer, which in the said case was not found to be sufficient and cogent to justify and substantiate the demand raised in view of the increased sale area. No doubt, the architect's certificate and report dated 23.09.2020 was filed before this Court as additional documents, but a non-reasoned order passed by this Court dismissing the case cannot be read as accepting and considering the additional evidence, or as rejecting justification and reasons given therein for claiming additional/increased sale area - the order passed by this Court dismissing the appeal in the case of Pawan Gupta is confined to the facts of the said case, including the evidence led by the parties before the National Commission. The National Commission was therefore required to consider and examine the contentions of the Appellant and not overrule the same on the grounds of the principle of res judicata and on the Rule of binding precedent, which do not apply. An order of remand on the question of merits as to the stipulation and increase in the sale area is therefore required.
The impugned order and judgment passed by the National Commission is set aside and the appeal is disposed of with a direction of remand in terms of the observations and directions given herein.
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2023 (8) TMI 1444 - ITAT MUMBAI
Levy of penalty u/s. 271B - violation of Section 44AB - As alleged assessee has failed to submit the report of the auditors and has not got the accounts audited, therefore, there was a contravention of Section 44AB and accordingly, penalty u/s. 271 B was initiated - assessee submitted that he has done all the investment considering himself as an investor and not as a trader - HELD THAT:- For violation of non maintenance of books of account u/s 44AA, there is a separate penal provision for levying penalty for non-maintaining of books of accounts prescribed u/s. 271A and therefore if at all penalty should have been levied under this section.
The Hon’ble Allahabad High Court in the case of CIT vs. Bisauli Tractors [2007 (5) TMI 181 - ALLAHABAD HIGH COURT] had held that Section 271B of the Act is not attracted in the case where no account has been maintained and instead recourse u/s.271A can be taken. This principle has again been reiterated by the Hon’ble Allahabad High Court in the case of CIT vs. S.K Gupta [2009 (9) TMI 231 - ALLAHABAD HIGH COURT]. Similar view has been taken in the case of CIT vs. Surajmal Parsuram Todi [1996 (8) TMI 102 - GAUHATI HIGH COURT]. Accordingly, we hold that no penalty u/s.271B is leviable when assessee has not maintained the books of accounts. Accordingly, penalty is deleted. Decided in favour of assessee.
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2023 (8) TMI 1443 - CESTAT BANGALORE
Method of valuation - Clearance of physician samples by discharging duty @ 110% of the cost of production - to be valued under Rule 8 or Rule 4 of the Central Excise (Valuation) Rules, 2000? - HELD THAT:- The Hon’ble Supreme Court in MEDLEY PHARMACEUTICALS LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2011 (1) TMI 13 - SUPREME COURT] has held that This Court has upheld the conclusion of the Tribunal that the physician’s samples have to be valued on pro-rata basis.
Thus, the impugned order is upheld and the appeal being devoid of merit, accordingly is dismissed.
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2023 (8) TMI 1442 - ITAT AHMEDABAD
Rectification of mistake - computation of Disallowance u/s 14A r.w.s. 8D - contention of the assessee that AO has to confirm the disallowance of administrative expenses u/s14A and dismiss the appeal of the Revenue thereby contending that in earlier Assessment Year i.e. A.Y. 2010-11 the Hon’ble High Court [2019 (6) TMI 1006 - GUJARAT HIGH COURT] has deleted the disallowance made as observing that in a case where assessee was having sufficient funds available with it, more than amount invested for earning the dividend, the disallowance in respect of interest expenditure u/s 14A r.w.r. 8D of the Rules is not permissible - HELD THAT:- From the perusal of [2023 (4) TMI 334 - ITAT AHMEDABAD] the contentions of the Ld. AR that no satisfaction was recorded has been taken into account and after taking cognisance of the same, the Tribunal has come to the conclusion that the Assessing Officer has looked into the aspect of element of administrative expenses and directed the Assessing Officer to take 0.5% thereby invoking the said Rule i.e. Rule 8D.
The contentions of the AR that current liabilities and provisions should not be reduced from the opening and closing stock of current assets should have been taken into account by the AO. As an impact, simplicitor directing the AO to confirm the disallowance and administrative expenses u/s 14A to the tune of Rs.15 lakhs will not be appropriate in the present Assessment Year and, therefore, the Revenue’s appeal has been partly allowed for statistical purpose with direction to the Assessing Officer to take all the element into account as well as administrative expenses which has been incurred by the assessee should be taken into account while allowing the same in the actual amount of administrative expenses and not on the superficial basis.
At the time of hearing, the Ld. AR relied upon the decision of Saurashtra Kutch Stock Exchange Limited [2008 (9) TMI 11 - SUPREME COURT] but in the present case the same it will not be applicable as the earlier decisions of Hon’ble High Court in Assessee’s own case has been considered and each assessment year has to be looked independently on factual aspects especially expenses and interest earned. Therefore, there is no need to interfere with the order and there is no need to rectify the same. Decided against assessee.
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2023 (8) TMI 1441 - UTTARAKHAND HIGH COURT
Maintainability of an application for anticipatory bail after charge sheet has been filed in the Court - question placed for consideration by this Larger Bench.
As per Manoj Kumar Tiwari, J. - An application seeking anticipatory bail would be maintainable even after filing of charge sheet in the Court.
As per Ravindra Maithani, J - An application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.
As per VIPIN SANGHI, C.J.
HELD THAT:- The view taken by Manoj Kumar Tiwari, J. that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court, agreed upon - Right to life and personal liberty is a valuable right available to a person, guaranteed under Article 21 of the Constitution of India, and it is one of the most precious and cherished rights. The said right to life and personal liberty cannot be curtained, or deprived, except without following the due process of law.
Section 438 of the Code of Criminal Procedure, which deals with what is popularly known as "anticipatory bail", seeks to prevent the apprehended infraction of this right to life and personal liberty of a person, by providing that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court, or to the Court of Session, for a direction under the said provision and the Court may, if it thinks fit, direct that in the event of such an arrest, he shall be released on bail.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Supreme Court considered the issue - whether the operation of an order passed under Section 438(1) of the Code should be limited in point of time. While recognizing the power of the Court to limit the operation of such an order to a shorter period, for reasons to be recorded, the Supreme Court observed that the normal rule should be not to limit the operation of the order in relation to a period of time.
The Law Commission in its 41st report, while recommending pre-arrest bail, observed that - their seems to be no justification to require the accused to first submit to custody, remain in prison for some days, and then apply for bail.
The view of Manoj Kumar Tiwari, J. agreed upon that the legislation has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained.
That being the position, an interpretation of Section 438 Cr.P.C. which curtails the remedy available to an accused - to preserve his right to life and personal liberty, should be eschewed.
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2023 (8) TMI 1440 - ITAT KOLKATA
Addition u/s 68 - unexplained cash credit - Onus to prove - HELD THAT:- The assessee has filed the necessary evidences comprising names, addresses, PANs, bank statements, ITRs, balance sheet, profit and loss accounts, share allotment letter, share application with bank statement besides filing the bank statements of the assessee thereby evidencing the receipt of amounts of from these investors. We note that the assessee is a trading in shares and textiles and all the subscribers were also trader in textiles. We also note that it’s customary in the business of textiles to business dealings in cash and so deposit into the banks accounts out of sales proceeds is in the normal course of business.
Therefore mere fact that the cash has been deposited in the bank accounts of the subscribers immediately one or two days before issuance of cheques in favour of the assessee will not perse prove that these transactions were non-genuine.
As examined the evidences filed before us in respect of share subscriber companies. We note that these companies are in fact having business in textiles and their turnover justified the cash deposits. Therefore the reasoning given by authorities below without looking into the nature of business of the assessee and the subscribers qua the cash deposit in the account of the subscribers before the date of the payment to the assessee is not sustainable. Besides the mere fact that the assessee has failed to produce the principals / directors of the subscribing company due to which investment could not be verified cannot be a ground for making addition in the hands of the assessee.
As both the authorities have failed to point out any defects in the documents/evidences furnished by the assessee and simply relied on the theory principal officers/ directors of the assessee company were not produced. In our opinion, the addition is based upon conjecture and surmises and not on the records which were available before the authorities below. Decided in favour of assessee.
Addition u/s 14A r.w.r. 8D(2)(iii) - assessee has received exempt income and has suo motto disallowed a sum under Rule 8D(2)(i) - HELD THAT:- We find that the issue is squarely covered in favour of the assessee by a series of decisions wherein it was held that the disallowance of expenses has to be restricted to the amount of exempt income received by the assessee.
We note that the assessee has earned tax free income of Rs. 1,53,600/- and therefore the disallowance cannot exceed the said amount of exempt income. Accordingly we set aside the order of Ld. CIT(A) and direct the AO to restrict the addition - Appeal of the assessee is allowed.
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2023 (8) TMI 1439 - SC ORDER
TP Adjustment - characterization of infra group services transaction - ITAT deleted the addition made holding that the payment made for intra group services was for commercial expediency - As decided by HC [2022 (9) TMI 1567 - DELHI HIGH COURT] agreement between the Assessee and its AE was a composite one and could not be split up for the purposes of holding that some services are at arm’s length and some are not as on viewing the agreement as a whole. It was not within the purview of the TPO to determine if some of the services resulted in any actual benefit to the Assessee or not.
Not considering interest on outstanding receivables as an international transaction as per Section 92 (B) read with Section 92F(v) - Appellate Authorities below have accepted the contention of the assessee that the assessee was justified in not charging interest on the delayed payments by the AEs and in not levying any interest on delayed payments made by the non-AEs, as the debtor days given to the non-AEs were more than the debtor days given to the AEs.
HELD THAT:- This Court is of the opinion that the impugned order does not call for interference. The special leave petition is accordingly dismissed.
All pending applications are disposed of.
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