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Showing 21 to 40 of 1460 Records
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2017 (7) TMI 1445 - ITAT MUMBAI
Disallowance of revenue expenses - assessee has claimed part of employees cost, office and administrative expenses, selling and marketing expenses and interest charges as revenue expenditure - assessee has capitalised major part of these expenses under the head “land, construction and development - HELD THAT:- Annual Report filed by the assessee would show that the assessee is also engaged in other activities such as relating to acquisition of agricultural land, entering into developing agreement etc. Besides, being a limited company, the assessee is required to incur certain expenses for maintenance of the company. Hence, it cannot be said that development of present project of the assessee is the only activity carried on by it.
Assessee has capitalised major part of the impugned expenses and it has claimed only a portion of the same as revenue expenditure, which was considered as relatable to the administrative and other activities carried on by the assessee. We notice that the tax authorities have not found fault with the segregation made by the assessee. However, they have taken the view that all expenses are required to be capitalized, since the project was under construction. We notice that the view taken by the tax authorities is not in accordance with the established accounting principles discussed above.
An identical issue relating to the claim of employees cost in the case of M/s. Lodha Palazzo[2014 (12) TMI 1272 - ITAT MUMBAI] and the same was decided in favour of the assessee - we are of the view that the assessee was justified in claiming the above said expenditure as revenue expenses. Decided in favour of assessee.
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2017 (7) TMI 1444 - ITAT PUNE
Deduction u/s 80IA(4) - conditions of IPS-2008 were not fulfilled by the assessee - assessee's project was not notified by the Govt. for claim of deduction u/s 80IA(4) for the A.Y. under consideration - HELD THAT:- We are making reliance on the said decision of Tribunal in assessee’s own case [2016 (8) TMI 1586 - ITAT PUNE] and M/s. Kolte Patil Developers [2015 (3) TMI 363 - ITAT PUNE] we uphold the order of CIT(A) in allowing the claim of deduction under section 80IA(4)(iii).
Deduction u/s 80IB(10) in respect of Kumar Puram project - Tribunal had noted the said issue as already decided the issue in assessment year 2001-02 and relying on the same held the issue to be identical and allowed the claim of assessee. AO in the present case has also disallowed the claim of assessee under section 80IB(10) of the Act in respect of Kumar Puram project, in turn, relying on the assessment orders in earlier years. Revenue has failed to point out any difference in the factual aspects and consequently, we find no merit in the ground of appeal No.2 raised by the Revenue and the same is rejected. The grounds of appeal raised by the Revenue are thus, dismissed.
Disallowance of interest expenditure under section 36(1)(iii) - availability of interest free funds - HELD THAT:- The issue arising in the present appeal is identical to the issue before the Tribunal in earlier years and even the advances were made in earlier years and following the same parity of reasoning, we remit this issue also back to the file of Assessing Officer to determine the availability of interest free funds and also to work out the disallowance of interest under section 36(1)(iii) of the Act, if any, in line with directions of Tribunal in earlier year. The Assessing Officer shall afford reasonable opportunity of being heard to the assessee. Accordingly, grounds of appeal No.6 to 6.3 raised by the assessee are allowed for statistical purpose. The grounds of appeal raised by the assessee are thus, partly allowed as indicated above.
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2017 (7) TMI 1443 - SC ORDER
Seeking enhancement of the sentence imposed - it was held by Kerala High Court that the court below was correct and justified in acquitting 22nd accused, having found him not guilty of the offence alleged - HELD THAT:- There are no ground to interfere with the impugned order. The special leave petitions are accordingly dismissed.
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2017 (7) TMI 1442 - ITAT MUMBAI
Income deemed to accrue or arise in India - Business profit attributable to the PE of the assessee in India - Royalty received by the assessee from Warner Bros Picture India Ltd in pursuance to the agreement for distribution and exhibition of the films in India - Whether Respondent does not have PE in India because the Indian company that has obtained the right is acting independently - HELD THAT:- As decided in assessee own case [2016 (10) TMI 1372 - ITAT MUMBAI] very issue of existence of PE in India has been considered by the Hon‟ble ITAT. The income of the assessee company does not qualify for the definition of Royalty in term of income tax Act 1961. The AO himself has accepted in the assessment order that the income of the assessee cannot be taxed as Royalty. Once the income of the assessee company does not qualify under the definition of Royalty, the income has to be held as business income. The business income cannot be taxed in the absence of PE in India. We have seen that the Hon‟ble ITAT has categorically held that the WBPIPL is not the PE of the assessee company.
Thus, respectfully following the decision of the Hon‟ble ITAT in the assessee‟s own case, we are of the view that the income of the assessee is not taxable in India and we direct the AO to delete the addition proposed on this account - Appeal of the Revenue is dismissed.
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2017 (7) TMI 1441 - RAJASTHAN HIGH COURT
Tribunal dismissing the appeal as unadmitted - Dismissal of appeal for appellant’s default etc. - Scope of Rule 24 after amendment - Whether ITAT seriously erred in passing the impugned order rejecting the application for recalling the said order and to hear and decide the appeal on merits filed under Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963 by wrongly applying provisions of Section 254(2) of Income Tax Act, 1961? - HELD THAT:- Taking into consideration the language of the Rule 24 after amendment, it is clear that tribunal could not have dismissed the appeal for default and ought to have decided the same on merits.
We are of the opinion that tribunal is misconceived on the issue raised by the appellant as the application was filed for recalling the order and not for rectification. In that view of the matter, the first issue we have decided in favour of the assessee. The tribunal ought to have reconsidered Rule 24 after amendment and having failed to do so, both the orders are quashed and set aside. The tribunal will decide the merit afresh.
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2017 (7) TMI 1440 - SUPREME COURT
Seeking declaration that the Defendant No. 1 (D-1) Church, its assets, including the educational institutions are liable to be administered only in accordance with Udampady executed on 30.12.2013 - settlement of scheme for administration of the church and its assets, to appoint a Receiver, conduct elections after preparing proper voters list irrespective of their factional affiliations and to entrust management to them - seeking Permanent injunction against 3rd Defendant restraining him from receiving the key of the church.
HELD THAT:- Following conclusions have been arrived at:
(i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.
(ii) The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.
(iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.
(iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right Under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch.
(v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.
(vi) Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc.
(vii) Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust.
(viii) When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.
(ix) The spiritual power of Patriarch has been set up by the Appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.
(x) As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.
(xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment.
(xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution.
(xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.
(xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed Under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned.
(xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.
(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.
(xvii) The Church and the Cemetery cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.
(xviii) The faith of Church is unnecessarily sought to be divided vis-à-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.
(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.
(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution.
(xxi) The Udampadies of 1890 and 1913 are with respect: to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.
(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.
(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22 etc.
(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.
(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit Under Order 1 Rule 8 Code of Civil Procedure. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.
(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme Under Section 92 of the Code of Civil Procedure.
(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.
(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.
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2017 (7) TMI 1439 - BOMBAY HIGH COURT
Addition of 'Mark to Market' Loss - disallowance of loss on foreign exchange forward contract loss - HELD THAT:- The question raised in the present appeal is covered by the judgment of this Court in M/S. D. CHETAN & CO. [2016 (10) TMI 629 - BOMBAY HIGH COURT] as decided Tribunal was justified in deleting the addition of 'Mark to Market' Loss made by the Assessing Officer on account of disallowance of loss on foreign exchange forward contract loss. - Decided in favour of assessee.
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2017 (7) TMI 1438 - ITAT HYDERABAD
TP Adjustment - comparable selection - HELD THAT:- Assessee company is engaged in the business of export of information technology enabled services, thus companies functinally dissimilar with that of assessee need to be deselected.
DRP excluded comparables, Viz., (a) Informed Technologies Ltd (b) Microgenetics Ltd (c) Cosmic Global Ltd. - The finding of DRP that Cosmic Global Ltd. has sub-contracted the ITES Services to the extent of 41% whereas assessee has not dealt with any of the sub-contract work of its ITES services and hence it cannot be compared with the assessee. With regard to Informed Technologies, DRP has noticed that sales and services income is only Rs. 1.75 crores to that of gross revenue of Rs. 4.08 crores of the company which fails the services revenue filter of 75% applied by the TPO. With regard to Microgenetics, the DRP noticed that total expenses of Rs. 1.08 crores debited to P&L A/c. The company has incurred Rs. 24.98 lakhs in outsourcing on medical transcription activity, which is 23% of the total expenditure.
Since the assessee has not entered into any sub-contracting business, this company also cannot be compared with the assessee. In our considered view, DRP has excluded all the above three companies as non-comparables with the proper justification that these companies cannot be considered as comparables to that of the assessee. Accordingly, we sustain the finding of the DRP for exclusion of above three companies.
As profit margin of the assessee is at arm's length as the same falls within tolerance band of 5% of arm's length margin of 21.46% of the comparable companies, it is observed that when the TPO arrives the ALP, if it falls within the range of +/- 5%, he has to give advantage to the assessee. Therefore, we direct the TPO/AO to extend this benefit to the assessee as per TP guidelines.
Disallowance of interest on unsecured loan taken from own 100% subsidiary and extending to its step down foreign subsidiary - HELD THAT:- It is observed that the assessee has taken loan from one of its subsidiary and invested the same funds in the step down foreign subsidiaries as investment in shares and in application money.
As decided the case of SA Builders [2006 (12) TMI 82 - SUPREME COURT] where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary for some business purposes, the assessee would, in our opinion, ordinarily be entitled to deduction of interest on its borrowed loans. This case is squarely applicable to the facts of the case of the assessee, as the assessee has borrowed from the Indian sister concern and invested in foreign sister concern as in share capital and share application money. The money invested in the sister concerns are considered to be for the purpose of business as per the ratio of Hon'ble Supreme Court because the holding company has deep interest in the subsidiary company, and hence, borrowed funds invested by the assessee in the sister concern are to be considered to be for the purpose of business. Therefore, the AO cannot disallow any expenditure on the ground that the same is not related to business of the assessee company. Accordingly, this ground is allowed.
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2017 (7) TMI 1437 - SC ORDER
Demand of service tax - Security Agency and Manpower Recruitment Agency Services - demand raised on the ground that the appellant provided the said services to their clients - HELD THAT:- Appeal admitted.
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2017 (7) TMI 1436 - SUPREME COURT
Cheating - Criminal Conspiracy - Applications seeking discharge - discharge sought mainly on the ground that M/s. Modern Denim Ltd.-Accused No. 13 had since entered into One Time Settlement (OTS) with the bank and the allegation of forgery and use of forged documents as genuine were not raised by the bank in the proceedings before the Debt Recovery Tribunal, as such no case was made out against them - compoundable offence or not - Section 468, 471 & 201 Indian Penal Code - HELD THAT:- The order passed by the trial court indicates that it has treated the main offence being that of cheating and it has also been observed that there is no such allegation that documents are forged and pecuniary advantage has been obtained on that basis. The trial court had heavily relied upon the OTS. Its observation that forged documents had not been used to defraud the Bank in our opinion is a palpably incorrect and perverse finding and cannot be sustained. There is overwhelming material placed on record along with charge sheet which indicates that a large number of documents had been forged in the instant case and Accused persons thereby have induced the Bank for disbursing the working capital limits to M/s. Modern Denim Ltd.
In Rumi Dhar's case [2009 (4) TMI 999 - SUPREME COURT], this Court has observed that when settlement is arrived at between the creditors and the debtor, the offence, if committed, as such does not come to an end. Even a judgment rendered in the civil proceedings, when it is rendered on the basis of a settlement entered into between the parties, would not be of large relevance as per criminal offence required of Section 49 of the Evidence Act. The judgment of the civil court is admissible only for limited purposes.
The order passed by the trial court affirmed by the revisional court and High court cannot be said to be sustainable. The impugned orders are thus set aside. Let the trial court frame the charges, and proceed further in accordance with law, and conclude the trial positively within a period of one year from today - appeal allowed.
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2017 (7) TMI 1435 - ITAT MUMBAI
Nature of expenses - Expenses relates to application of software packages - revenue or capital expenditure - HELD THAT:- We find that this issue has been settled by Tribunal in all the earlier years and factually the expenses relates to application of software packages which get frequently outdated and have to be replaced. The expenditure is to be treated as Revenue in nature and we allow the same accordingly.
Disallowing the expenses of foreign travel - HELD THAT:- Tribunal in AY 1995-96 in [2013 (10) TMI 1039 - ITAT MUMBAI] allowed the claim of the assessee.
Deduction u/s 80HHC - holding that 90% of the net amount is machinery higher charges which required to be deducted from eligible profit for deduction under section 80HHC in term of explanation(baa) to section 80HHC - HELD THAT:- Hon’ble Bombay High Court in the case of CIT vs. Bangalore Clothing Co. [2003 (1) TMI 89 - BOMBAY HIGH COURT] held that explanation (baa) to section 80HHC of the Act requires that 90% of the receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature have to be reduced from the profits. The reason why the items like brokerage etc. have to be excluded is because they do not poses any nexus with export turnover and their inclusion in profits would result in a distortion of the figure of export profit. However, some expenditure incurred for earning these incomes, an adhoc deduction of 10% from such income is to be allowed under this provision.
As in the present case, the machinery hire charges are not in connection with export turnover and hence cannot be included in the profit and this will squarely fall under the clause (baa) to section 80 HHC of the Act and CIT(A) rightly directed AO to reduce 90% of net amount. We find no infirmity in the order of CIT(A) and hence the same is confirmed. This issue of assessee’s appeal is dismissed.
Value of closing stock on account of MODVAT - HELD THAT:- Respectfully, following the Hon’ble Bombay High Court Decision in the case of Mahalakshmi Glass Works Private Limited [2009 (4) TMI 182 - BOMBAY HIGH COURT] and also upon the decision of co-ordinate Bench of the tribunal in the case of Sunshield Chemicals Private Limited [2015 (12) TMI 767 - ITAT MUMBAI] we hold that unutilized MODVAT credit shall be added to the closing stock of the assessee as at year end which will also necessitate similar adjustments to opening stock in light of the aforesaid decisions cited by us.
Depreciation on assets transfer to Ciba Specialty Chemicals (India) Ltd. pursuant to scheme of demerger - HELD THAT:- There is a newly inserted explanation 2A which is inserted by Finance Act 1999 with effect from 01-4-2000 to Section 43(6) of the 1961 Act which has not been considered by authorities below nor the assessee has brought the same to the notice of authorities below and hence we considered it appropriate to restore the issue to the file of the AO for de-novo adjudication of the issue in accordance with law in the light of newly inserted explanation as indicated above and also in the light of decision of the tribunal in assessee’s own case for preceding AYs 1997-98, 1998-99 and 1999-2000 as relied upon by the assessee.
Disallowance of advertisement expenses and assessee is against not allowing depreciation applicable to plant and machinery at the rate of 25% - HELD THAT:- As in assessee’s own case[2016 (1) TMI 1491 - ITAT MUMBAI]allowed the claim of the assessee.
Addition of estimated freight component in the closing stock - HELD THAT:- This issue is decided in earlier years, wherein the Tribunal has dealt with this issue in [2016 (1) TMI 1491 - ITAT MUMBAI] - Decided in favour of assessee.
Calculation of liability - incremental liability accrued on account of payment of pension under voluntary retirement scheme in respect of the orders of the assessee’s erstwhile Bhandup Unit - HELD THAT:- We have carefully gone through the orders of the lower authorities and the order of the Tribunal. We find that the Tribunal in its order has followed the findings given by the Tribunal in A.Y. 1993-94 and has restored this issue back to the file of AO to examine and verify the actuary valuation certificate and the agreement with the company and the employee and if he finds that the liability has been calculated on a scientific basis, may allow the claim of the assessee. Facts and circumstances being identical, respectfully following the afore stated direction of the Tribunal in assessee’s own case for A.Y. 1994-95, this issue is restored back to the file of AO.
Exclude sale tax and excise duty and scrap sale from the total turnover for the purpose of computing deduction under section 80HHC - HELD THAT:- Respectfully, following the Hon’ble Bombay High Court decision in the case of Sudarshan Chemicals Industries Ltd. [2000 (8) TMI 73 - BOMBAY HIGH COURT] and Hon’ble Supreme Court decision in the case of Punjab Stainless Steel Industries [2014 (5) TMI 238 - SUPREME COURT] We allow the claim of the assessee and confirm the order of CIT(A). This issue of Revenue’s appeal is dismissed.
Disallowance u/s 14A - expenditure in relation to exempt income under section 14A - HELD THAT:- In the instant year the end of justice will be met if the order of the AO is upheld as the disallowance u/s 14A made by the AO being 2% of exempt income (interest income and dividend income), falls within the arena of reasonability and Revenue’s appeal is allowed.
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2017 (7) TMI 1434 - SUPREME COURT
Recovery of the amount of dues to bank from the Company and the guarantors - attachment of suit property - HELD THAT:- This Court clearly held that an agreement to sell which is not a registered deed of conveyance would not meet the requirements of Section 54 and 55 of the Transfer of Property Act. With respect to Section 53A of the Transfer of Property Act, it is well settled that the same can only be used as a defence in proceedings initiated by the transferor or by any person claiming under him.
Shri Dhillon P. Shah and his wife never disclosed the fact of the alleged sale of the suit property to anybody including any member of the Society. It is more than obvious that with a view to wriggle out of the recovery proceedings, after the death of Shri Dhillon P. Shah this document has been fabricated. This document does not transfer any right, title or interest of the property and, therefore, the Revisional Court and the High Court erred in allowing the claim of the respondent No.1.
The order of the High Court and the revisional/appellate authority accepting the claim of respondent No.1 are set aside and the claim of the respondent No.1 is rejected - Appeal allowed.
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2017 (7) TMI 1433 - KERALA HIGH COURT
Dishonor of Cheque - discharge of legally enforceable debt or not - benefit of acquittal - benefit of the statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act - witnesses not examined - alleged liability is owed to a person other than the payee - offence under Section 138 of the Negotiable Instruments Act can be attracted or not - HELD THAT:- From a reading of the complaints as well as the evidence of PW1, it can be seen that no iota of material evidence has been let in to prove the crucial fact that the complainant’s husband had necessary source of funds at the relevant time to raise such a huge amount of Rs.15,00,000/- for being advanced to the accused.
The Apex Court in the judgment in JOHN K. ABRAHAM VERSUS SIMON C. ABRAHAM & ANOTHER [2014 (1) TMI 528 - SUPREME COURT] has held that in order to enable the complainant to draw the benefit of statutory presumption envisaged under Section 118 (a) and Section 139 of the Negotiable Instruments Act, the burden is quite heavy on the complainant to prove that he had the requisite source of funds for making borrowal of the money for the transaction in question.
PW1 has claimed in her deposition that there was written agreement between the complainant’s husband and the accused which would show the alleged liability of Rs.15,00,000/- owed by the accused to her husband and that a photocopy of the said alleged sale agreement is available. But, the complainant has not produced either the original or photocopy of any such agreement. PW1 has also deposed that apart from her, there were two other independent witnesses who had seen the tendering of the three cheques by the accused to the complainant. But, none of such persons have been examined as witness in the instant case to prove such a fact. These aspects could also raise a serious suspicion in the mind of any criminal court about the very believability and genuineness of the case set up by the complainant - Except making such claims, no convincing evidence whatsoever has been let in in this case to prove even remotely any such factual aspects. Therefore, in the light of all these aspects, the irresistible conclusion that could have been arrived at by a criminal court is that it is highly unsafe to raise such a conviction in the light of serious deficiencies in prosecution of the present complaints. Both the courts below have shutout all these crucial and relevant aspects. This Court is of the firm view that the accused is entitled for the benefit of acquittal.
The accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act in these three complaints and he is set at liberty - petition disposed off.
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2017 (7) TMI 1432 - ITAT KOLKATA
Revision u/s 263 by CIT - Deduction u/s 80IB(10) - HELD THAT:- There is a specific reference to the examination by the AO of deduction u/s 80IB(10) - Conclusion of CIT therefore that the AO failed to make proper enquiries before concluding the assessment, cannot be sustained. We are also of the view that the non issuance of notice u/s 133(6) in respect of advance received from the customers or not making any enquiries thereon by itself cannot be the basis to say that there was a failure on the part of AO to make proper and necessary enquiries.
A reading of notice issued u/s 142(1) by the AO before completing assessment u/s 143(3) of the Act and the details furnished by the assessee in response to this notice clearly shows that the AO was fully conscious of the details of advance received from the customers furnished by the assessee. There are no facts brought out on record to show that further enquiry was required to be made by the AO on the details of advance from the customers furnished by the assessee.
We are of the view that order of CIT is a non-speaking order and does not discuss how the order of AO passed u/s 143(3) of the Act was erroneous and prejudicial to the interest of the revenue. In these circumstances, we quash the order passed u/s 263 of the Act and allow the appeal of assessee.
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2017 (7) TMI 1431 - ITAT PUNE
Bogus purchases - Addition of hawala purchases - HELD THAT:- In the facts of the case, the assessee had tried to meet the case of AO and hence, the onus shifted upon the AO to disprove the claim of assessee. AO has failed to discharge the onus in this regard. AO has failed to complete the investigation in the case. In view of the affidavits / confirmation letters filed by the assessee, no further enquiries were made in the present set of facts.
In the absence of the same and where the assessee has tried to built upon its case and has also shown the trail of goods i.e. as against the booking of sales, it had made the purchases and in this regard has complete quantitative records available with him, then the onus cast upon the assessee stands discharged once the same is produced before the authorities below.
Where the assessee has discharged the onus of proving the factum of making purchases from the respective parties by way of filing affidavits and also establishing the trail of goods, in turn, relying on the stock details maintained by him, there is no merit in holding the said purchases to be bogus. The statements of bogus suppliers were relied upon without giving an opportunity to cross-examine the said parties to the assessee.
It is case of trader, where admittedly, the assessee was engaged in the sale of industrial oil and only against the confirmed orders, it was making said purchases; then the assessee has discharged the onus cast upon him and in the absence of any contrary evidence being brought on record, mere reliance on the investigation carried out by the Sales Tax Department does not warrant any addition in the hands of assessee.
Accordingly, we hold so. Thus, we direct the AO to delete the addition on account of bogus purchases. The grounds of appeal raised by the assessee are thus, allowed and the grounds of appeal raised by the Revenue are dismissed.
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2017 (7) TMI 1430 - ITAT MUMBAI
Penalty u/s 271(1)(c) - Income of the assessee was finally estimated by the Ld. AO @2% of total receipts as per the Bank statements which was confirmed by the Ld. CIT(A) - HELD THAT:- As decision of Tribunal rendered in associated concern of the group Jayesh K. Sampat [2016 (10) TMI 1127 - ITAT MUMBAI] where the Tribunal on identical set of facts and similar submissions / contentions has remitted the matter back to the file of AO for fresh adjudication in terms of respective submissions. Both representatives have agreed for similar directions in the present case.
Thus as facts of the instant case are identical in all respect and submissions of the representatives are also identical. Therefore, on similar lines, the matter is restored back to the file of Ld. Assessing Officer for fresh adjudication, which results into assessee’s quantum appeals being partly allowed for statistical purposes.
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2017 (7) TMI 1429 - SC ORDER
Seeking grant of anticipatory bail - the petitioner is directed to join the investigation and in the event of his arrest he be released on anticipatory bail in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of IO/SHO concerned till the next date - HELD THAT:- There are no ground to interfere with the impugned order. The special leave petitions, are, accordingly, dismissed.
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2017 (7) TMI 1428 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - mismatch and discrepancies in the alleged amount of claim or not - HELD THAT:- There cannot be any dispute that it is prerogative right of a party, who has filed a case airing his grievance, to convince a court a prima facie case, and then it is discretionary power of such court either to admit and pass interlocutory orders or to admit without any interim order or to reject/dismiss such petition/application, which is/are not prima facie not maintainable. However, in the present case, as per the provisions of IBC, admission itself would have wide material/legal consequences.
There is a legal maxim called 'ubi jus ubi remedum' meaning where there is grievance, there is a remedy. Here, the applicant/Financial Creditor has substantial grievance against the Corporate Debtor and has thus initiated the present proceedings in accordance with law by submitting that efforts made by it could not succeed to recover public money extended to respondent except a getting a paltry remedy from DRT. Here, there is no dispute that various amounts as loans in question were extended to the Corporate Debtor, and it is not case of Corporate Debtor that it has entirely paid principal amount or interest thereon. It is not in dispute that debt in question was already declared as NPA as early as on 2012. However, without paying any substantial amount of due in question, the Corporate Debtor relying on un-tenable grounds, which are purely clerical/technical grounds like mistakes/mismatch of calculation, wrong quoting of rule/provision of law for issuing certificates in question etc. as detailed are resisting admission of case.
The issue in question has to be considered in the light of various provisions of IBC, which is a separate act meant for expeditious remedy for aggrieved parties. The financial Creditor has convinced this Tribunal that the present case is a fit case for admission under provisions of IBC, 2016 - Whether, the Corporate Debtor has complied or not with directions given by DRT is not much relevant here as the Corporate Debtor was admittedly declared as defaulter by placing its debt as Non-Performing Asset, and it is not in question before any judicial forum(s). On the other hand, the Corporate Debtor is facing proceedings under Negotiable Instruments Act for dishonor of cheques issued by it to Financial Creditor. Apparently, the order of DRT is relating to a printing machine which was installed in the Company's Unit situated at Vijayawada, A.P. and not for the Company as a whole i.e. Deccan Chronicle Holdings Ltd.
It is evident that a default in question has occurred and the petition/application in question is complete in all respects and there are no disciplinary proceedings pending against proposed Interim Resolution professional as per declaration given by him. Hence, the present case is fit case to admit. However, it does not mean that admission of case would deprive proper opportunity to the respondent to defend its case. A duly qualified Interim Resolution Professional, appointed by Tribunal is bound to afford full opportunity to Respondent by duly following principles of natural justice.
Though Section mentioned in the certificate of the Financial Creditor is incorrect, however, the contents of the certificate are in accordance with the prescribed format. Therefore, we deem it fit as it is a clerical error/typographical error, and on that account, the petition cannot be rejected, considering the quantum of outstanding amount, the Financial Creditor being a public sector bank and amount is due over a long period of time. If adjudicating authority accepts all these kinds of clerical/technical errors which are not affecting in any way and start rejecting/not admitting the cases under IBC, the objects for promulgating IBC, 2016 would be defeated.
Petition admitted - moratorium declared.
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2017 (7) TMI 1427 - SUPREME COURT
Constitutional Validity of Notification issued by the Central Government bearing No. S.O.2941(E) dated 18.11.2009, amending Notification No. S.O.1055(E) dated 19.10.2001 - Insertion of Note 4 (four) in the table at the end of Note 3 (three) - HELD THAT:- Considering the significance of the issues raised by the respondents and the grounds of challenge of the appellants/petitioners concerning the impugned notification, to observe judicial rectitude and in deference to the mentioned decisions, it is directed that these matters be placed before atleast a three Judges Bench for an authoritative pronouncement on the matters in issue, which are of seminal public importance.
The three Judges Bench may have to consider, amongst others, the following questions:
(a) Whether the decision of this Court in E. Micheal Raj [2008 (3) TMI 674 - SUPREME COURT] requires reconsideration having omitted to take note of entry no.239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Act with Section 21?
(b) Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act permit the Central Government to resort to such dispensation?
(d) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(e) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with “manufactured drug” and “preparation” containing any manufactured drug?
The registry is directed to place the matters before the Hon’ble Chief Justice of India for seeking appropriate directions to place the matters before a larger bench.
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2017 (7) TMI 1426 - DELHI HIGH COURT
Taking over the actual physical possession of the mortgaged property as also the hypothecated stocks and goods lying in the shop by Possession Notices - seeking permission of this Court to continue with the Complaint under Section 138 read with Section 142 of the Negotiable Instruments Act against the Respondent and its directors pending before the learned Metropolitan Magistrate - HELD THAT:- The Provisional Liquidator in the present case was appointed on 28.02.2013 and the complaint was filed after the appointment of the Provisional Liquidator. Mr.Mayank Goel, learned counsel for the OL submits that without considering any aspect of the matter either in fact or in law, he has no objection in case the proceedings are continued before the learned MM subject to the condition that the OL who has taken over the assets and control of the company pursuant to the orders passed by this Court on 28.02.2013 be exempted from appearance and further no punitive order against the company or the OL be executed without the prior permission of this Court. Subject to the above, the applicant is permitted to proceed with the complaints bearing No. 2990/1/15 and 261/1/16.
The application stands disposed of.
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