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Case Laws
Showing 41 to 60 of 1427 Records
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2015 (3) TMI 1397 - DELHI HIGH COURT
Deduction u/s 10A - HELD THAT:- Admit appeal for following question of law -
“If the Tribunal fell into error in the circumstances of the case in continuing the benefit of Section 10A to assessee for Assessment Year 2005- 06 on the ground that enhanced claim way of including 18 units as independently entitled to the benefit so made, was not tenable.”
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2015 (3) TMI 1396 - KARNATAKA HIGH COURT
Permission to reduce the capital and the Securities Premium Account as resolved by the Extraordinary General Meeting - HELD THAT:- Presently, in view of the decision to reduce the share holdings such of those public minority share holders who have not objected to receiving their share money would be paid and such of public minority shareholders who have opted to retain their holdings shall be continued as shareholders of the petitioner company. Hence, the object of the reduction of share holding is achieved by the decision taken by the petitioner company.
The petition is allowed and reduction of capital as resolved at the Extraordinary General Meeting held on 13.01.2015 which reads as hereunder is confirmed - Form of minutes under Section 103(1) of the Act as set out below is approved.
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2015 (3) TMI 1395 - ITAT MUMBAI
Disallowance of payment made by the firm to the spouse of the deceased partner - CIT(A) erred in confirming the action of the Assessing Officer in not allowing the claim of the appellant - HELD THAT:- As decided in own case [2012 (12) TMI 86 - ITAT MUMBAI] as held it is clearly a gratuitous payment made by the assessee firm which was not an allowable business expenditure u/s 37(1) –Decided in favor of revenue
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2015 (3) TMI 1394 - ITAT DELHI
Penalty u/s 271(1)(c) - addition of difference between revenue expenditure claimed and depreciation allowed - HELD THAT:- Where penalty has been imposed by A.O. in view of the difference of opinion between assessee and the A.O. Assessee treated the expenditure as revenue expenditure whereas, the A.O. treated the purchase of software as capital asset. All the particulars were before the A.O. from which only he could arrive at a conclusion that assessee had debited the expenditure in the P & L account.
It is not a case where there was any wrong furnishing of particulars of income or concealment of income. In view of above, we do not find any infirmity in the order of Ld. CIT(A). Appeal filed by revenue is dismissed.
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2015 (3) TMI 1393 - ITAT CHENNAI
Disallowance of miscellaneous income arising out of scrap sale as deduction from pre-production capital expenditure - HELD THAT:- The interest income earned on the excess borrowed fund was assessed as income of the assessee. However in this case before us, the assessee has generated scrap while relocating and erecting its machinery. Obviously the revenue derived from the sale of such scrap will go to reduce the erection cost which is to be capitalized. It is pertinent to note that the scrap generated is not from the production activity of the assessee but from relocation and erection of the machinery belonging to the assessee. Therefore the miscellaneous income arising out of scrap sale from such activity should be reduced from the pre-production capital expenditure incurred by the assessee. Thus this ground raised by the assessee is allowed in its favour.
Disallowance of prior period expenses - HELD THAT:- In mercantile system of accounting, only the expenditure that has crystallized during the relevant assessment year is to be treated as allowable deduction. In this case, it is apparent that the payment made by the assessee had crystallized as expenditure during the relevant assessment year. Therefore, the assessee has rightly claimed the same as allowable deduction. In these circumstances, we hereby direct the AO to allow the claim of the assessee as allowable deduction. It is ordered accordingly.
Disallowance of expenses towards prepayment premium and interest recompense - HELD THAT:- As relying on GUJARAT STATE FERTILIZERS & CHEMICALS LTD. [2013 (7) TMI 701 - GUJARAT HIGH COURT] and GUJARAT GUARDIAN LIMITED [2009 (1) TMI 13 - HIGH COURT DELHI] we hereby direct the Ld. Assessing Officer to delete the additions made on account of disallowance being the payment towards interest recompense on CDR scheme. Thus this issue is also held in assessee’s favour.
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2015 (3) TMI 1392 - MADRAS HIGH COURT
Cancellation of registration certificate with retrospective effect - HELD THAT:- In similar circumstances in the case of M/S. VIJAY SHREE METALS VERSUS THE ASSISTANT COMMISSIONER (CT) BROADWAY ASSESSMENT CIRCLE CHENNAI-101 [2015 (3) TMI 1216 - MADRAS HIGH COURT] it has been held that the registration certificates are to be activated.
The respondent is directed to restore the registration certificate of the petitioner forthwith on production of a copy of this order - petition allowed.
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2015 (3) TMI 1391 - SC ORDER
Liability on the part of the respondent/auction purchaser of the machinery to clear the customs duty payable to the appellant - HELD THAT:- The High Court has specifically observed that it would not go into the question as regards the liability of the loanee vis-à-vis the State Financial Corporation and have also noted the commitment of the State Financial Corporation in the Sale Confirmation Letter that from the proceeds of the machinery, the dues payable to the appellant shall be paid.
Appeal dismissed.
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2015 (3) TMI 1390 - KARNATAKA HIGH COURT
Maintainability of petition - territorial jurisdiction to examine the present petition - infringement of legal rights or not - HELD THAT:- Hon’ble Apex Court under identical circumstances in RAJENDRAN CHINGARAVELU VERSUS RK. MISHRA, ADDITIONAL COMMISSIONER OF INCOME-TAX [2009 (11) TMI 341 - SUPREME COURT] while examining as to whether receipt of communication or location of the office would cloth such High Court the jurisdiction to examine the writ petition on merits has held in the ease of OIL & NATURAL GAS COMMISSION VERSUS UTPAL KUMAR BASU [1994 (6) TMI 193 - SUPREME COURT] that mere location of the Registered office or receipt of communication would not give rise for cause of action. Hence, this Court is of the considered view that present writ petition before this Court would not be maintainable since no part of the cause of action has arisen within the territorial jurisdiction of this Court.
The consignment belonging to the petitioner has been received at Delhi from Australia and on same being cleared at Air Cargo Complex, Delhi petitioner has taken delivery of the said consignment at Delhi and transported it to Uttarakhand. As such, no part of the cause of action either wholly or in part has arisen within the territorial jurisdiction of this Court so as to enable this Court to examine as to whether the petitioner’s alleged legal right had been infringed - the irresistible conclusion that will have to be drawn by this Court is, this Court has no territorial jurisdiction to examine the writ petition on merits since no part of cause of action has arisen within the territorial jurisdiction of this Court.
Writ petition is hereby dismissed as not maintainable before this Court.
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2015 (3) TMI 1389 - CESTAT NEW DELHI
Area Based Exemption - Payment of Education Cess and Secondary and Higher Education Cess - the cess can be paid through basic excise duty credit or not - N/N. 56/02-C.E. - HELD THAT:- On going through the registry’s records, it is seen that the regular matters listed on 24-6-2013 had been shifted to 25-6-2013 as a result of which it appears that the matter was listed on 25-6-2013 but the notice for the same was not issued - there was bona fide reason for non-appearance of the appellant on 25-6-2013.
The appeal is recalled and these appeals are restored to their original number.
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2015 (3) TMI 1388 - CESTAT NEW DELHI
Refund of excess duty paid - duty paid under protest - no show cause notice has been issued to the appellant - demands stayed by the stay order - HELD THAT:- Admittedly, for the period in dispute for filing of refund claim where duty was paid under protest, no show cause notice has been issued to the appellant. Therefore, issue of valuation does not arise. Therefore, this Bench is having a jurisdiction to entertain the appeal filed by the appellant.
Admittedly, for the subsequent period although demands have been confirmed by way of adjudication against the appellant and same has been stayed by the stay order mentioned. In these circumstances, when there is no amount pending against the appellant for recovery, appellant is entitled for the refund claim.
Appeal allowed - decided in favor of appellant.
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2015 (3) TMI 1387 - SUPREME COURT
Discretion of the Magistrate to call for a report Under Section 202 instead of directing investigation 156(3) - controlled by any defined parameters or not - power of Police Officer to arrest an accused - correctness of seeking report Under Section 202 instead of directing investigation Under Section 156(3) - HELD THAT:- The direction Under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed" - Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.
Power of police to arrest in the course of investigation Under Section 202 with a view to give its report to the Magistrate to enable him to decide whether a case to proceed further existed - HELD THAT:- Careful examination of scheme of the Code reveals that in such situation power of arrest is not available with the police. Contention based on language of Section 202(3) cannot be accepted - Nature of cases dealt with Under Section 202 are cases where material available is not clear to proceed further. The Magistrate is in seisin of the matter having taken the cognizance. He has to decide whether there is ground to proceed further. If at such premature stage power of arrest is exercised by police, it will be contradiction in terms. As regards denial of opportunity to record confession Under Section 27 of the Evidence Act, it has to be kept in mind that admissibility of such confession cannot guide exercise of power of arrest. Source of power of arrest is governed by other provisions and not by Section 27.
Whether in the present case the Magistrate ought to have proceeded Under Section 156(3) instead of Section 202? - HELD THAT:- The answer is in negative - The Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction - the Magistrate and the High Court rightly held that in the present case report Under Section 202 was the right course instead of direction Under Section 156(3). The question is answered accordingly.
Thus there are no error in the view taken by the Magistrate and the High Court that direction Under Section 156(3) was not warranted in the present case and the police may not be justified in exercising power of arrest in the course of submitting report Under Section 202 - appeal dismissed.
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2015 (3) TMI 1386 - SUPREME COURT
Dishonor of Cheque - insufficiency of funds - It is alleged by the present Respondent (accused) in the petition that Balakrishnan, instead of getting the mortgage deed executed, obtained an agreement of sale from aforesaid two persons with false and incorrect recitals - HELD THAT:- The defence of the Respondent (accused) before the High Court, in the petition filed Under Section 482 of the Code, is nothing but absolutely factual in nature, which is neither admitted by the complainant, nor apparent on the face of the record. Such type of disputed factual defences could have been appreciated only by the trial court, after the parties led their evidence. The High Court committed grave error of law in examining the allegations and counter allegations which are disputed and factual in nature in a proceeding Under Section 482 of the Code.
There are no option but to set aside the order passed by the High Court as it has entered into highly disputed questions of fact and concluded that the material before it was sufficient to cause reasonable suspicion in the case of the complainant. That is not the ground on which powers Under Section 482 of the Code can be exercised by the High Court - appeal allowed.
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2015 (3) TMI 1385 - SUPREME COURT
Cheating - It is alleged in the complaint that the loan transaction of the company with IIBI was settled with the efforts of the complainant/Respondent No. 3 herein but the company, Directors and Promoter did not pay him the consultancy fee as promised and they conspired together to deceive the complainant and committed offences as alleged - breach of contract - HELD THAT:- It is not in dispute that the IIBI did not issue any acceptance letter on or before 30.10.2008 with regard to the settlement of disputes of the Appellant company. The 3rd Respondent also did not present the cheque dated 6.8.2008 issued by the Appellant company for encashing a sum of ₹ 30 lakhs. Due to the efforts of the Appellant company IIBI finally agreed and issued letter of acceptance dated 5.1.2009. One year later, the 3rd Respondent sent a letter dated 6.3.2010 to the Appellant company demanding the balance amount of ₹ 70 lakhs towards the consultancy fee. No allegation whatsoever was made against the Appellants herein in the said letter. It was only mentioned in it that the consultation fee remains unpaid and the company is delaying the payment on one pretext or the other.
It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not - In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence Under Section 420 Indian Penal Code. The complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court.
Appeal allowed - decided in favor of appellant.
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2015 (3) TMI 1384 - ITAT AHMEDABAD
Penalty u/s 271(1)(b) - assessee has not complied with the notices under sections 143(2)/142(1) - HELD THAT:- As decided in SARDARMAL KOTHARI [2013 (3) TMI 815 - ITAT CHENNAI] when an assessment has been made under sec.143(3) and not under sec.144 of the I.T. Act, it means that subsequent compliance in the assessment proceedings was considered as good compliance and the defaults committed earlier were ignored by the Assessing Officer and, therefore, there is no case for levy of penalty under sec.271(1)(b) of the Act - Appeal of the assessee is allowed.
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2015 (3) TMI 1383 - SUPREME COURT
Bail application - Bribe - allegation of receiving bribe on behalf of senior officials - abettor to the principal perpetrator, Accused 1 or not - HELD THAT:- The senior accused, A-1, had been requested to issue a patta in favour of the complainant. A-2, A-1's junior officer, was given the trap money in A-1's office and on his behalf by the complainant, who was accompanied by a trap witness. On exiting the office of A-1, A-2 was at once apprehended. Although A-1 had not been entrapped per se, he was found to be conclusively incriminated by the circumstances and evidence of the complainant.
The conviction of Accused 1 perfectly sustainable. It is an argument a fortiori supportive of Accused 1's conviction herein, since in Shamsudhin, A-2's receipt in A-1's office on behalf of A-1 could conceivably have been repudiated by A-1 on the ground that he himself could have taken receipt of the bribe amount in his own office, being physically present there at the time of payment, and need not have relied on his junior officer to take receipt thereof on his behalf. Contrarily, in the case before us, Accused 1's absence from the office at the time of the trap strengthens, rather than weakens, the claim that his junior officer, Accused 2, was receiving part of the bribe amount as a custodian on his behalf.
Bail of both Accused stands hereby cancelled. Consequently, it is directed that the Accused persons are to be taken into custody forthwith, to serve out the remainder of their sentences - Appeal dismissed.
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2015 (3) TMI 1382 - MADRAS HIGH COURT
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - revision petitioner has contended that filing of the petition under Section 311 Cr.P.C. is only to protract the proceedings - HELD THAT:- Record of proceedings shows that revision case is pending from 2011 onwards. The petitioner has obtained stay of the proceedings in STC.No.590 of 2007 and even after this Court ordered private notice, as early as on 09.09.2011, proof has not been filed for effecting service on the respondent. Thus, it is also evident from the above that it is the petitoner, who has proteacted the proceedings in STC No.590 of 2007 on the file of the learned Judicial Magistrate No.I, Tiruppur, and not the respondent.
The power of attorney can adduce evidence on the facts relating to issuance of cheque, dishonour, issuance of notice and filing of complaint, and these facts can be deposed with documents. He comes into picture, only after all the legal requirements for instituting a complaint, are met and authorised to speak about the abovesaid facts. Power of attorney is given to institute a complaint under Section 138 of the Negotiable Instruments Act, 1881, and to conduct the case. It cannot be contended that, whatever transpired between the parties is within the personal knowledge of the power of attorney. On the facts of this case, he cannot speak as to what transpired in the Crime Branch Police Station, Tiruppur, regarding payment, stated to have been made by the drawer, towards the cheque amount. The abovesaid fact can be spoken to, only by the complainant and not by the power of attorney.
The revision petition is liable to be dismissed and accordingly, dismissed.
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2015 (3) TMI 1381 - MADRAS HIGH COURT
Reversal of amounts already adjusted towards balance of arrears for the assessment year 2009-2010 and 2010-2011 - reversal for the reason that the said adjustment cannot be possible to be made for the demand emanated for the preceding assessment year - Section 19(17) of TNVAT Act and Rule 10(b) of TNVAT Rules - HELD THAT:- Since the impugned order passed is contrary to the provisions of Section 19(17) of the Act, the impugned order dated 20.02.2015 is quashed and the writ petition stands allowed.
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2015 (3) TMI 1380 - BOMBAY HIGH COURT
Rejection of additional grounds in limine by CIT-A - CIT (Appeals) rejected the three additional grounds of appeal on the ground that omission to take these grounds originally in Appeal is wilful and unreasonable. - HELD THAT:- The grounds of appeal nos. 1,2 and 3 as made out before the Tribunal were verbatim repetition as grounds of appeal which were raised by the appellant before the CIT (Appeals) we find that this was not the basis of the Tribunal dismissing the appeal in respect of grounds 1,2 and 3. The submission on the part of the revenue is hypertechnical and not appreciated as it defeats the purpose and object of the hierarchy of authorities created under the Act to redress the grievances of the assessee.
The question as formulated is answered in favour of the assessee and the impugned order of the Tribunal is set aside to the extent it rejects ground nos. 1, 2 and 3 and the same are restored to the file of the Tribunal for fresh disposal. It may be pointed out that the CIT (Appeals) after having rejected the Appellant's additional grounds proceeds further to deal with the ground nos.1, 2 and 3 and rejects the same on merits. This is an additional reason that the Tribunal ought to have considered grounds 1,2 and 3 raised by the Appellant on merits which it failed to do.
On the aforesaid issue alone the appeal is restored to the Tribunal. The Tribunal is directed to hear the Appellant and pass a fresh order on ground nos. 1,2 and 3 urged by the appellant as expeditiously as possible.
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2015 (3) TMI 1379 - ITAT BANGALORE
Deduction u/s 54EC - as per AO second tranche invested in the succeeding previous year, would not be eligible for deduction under section 54EC(1) AND the second investment was for a different financial year - DR submitted that investments made in two years when aggregated exceeded the limit of ₹ 50 lakhs set out in the section and therefore assessee ought not to have been given the relief - HELD THAT:- As relying on case C. JAICHANDER [2014 (11) TMI 54 - MADRAS HIGH COURT] from a reading of Section 54EC(1) and the first proviso, it is clear that the time limit for investment is six months from the date of transfer and even if such investment falls under two financial years, the benefit claimed by the assessee cannot be denied. It would have made a difference, if the restriction on the investment in bonds to ₹ 50,00,000/- is incorporated in Section 54EC(1) of the Act itself. However, the ambiguity has been removed by the legislature with effect from 1.4.2015 in relation to the assessment year 2015-16 and the subsequent years. For the foregoing reasons, we find no infirmity in the orders passed by the Tribunal warranting interference by this Court. The substantial questions of law are answered against the Revenue and these appeals are dismissed.
We therefore find CIT(A) to be justified in giving the deduction under section 54EC to the assessee in full - Decided against revenue.
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2015 (3) TMI 1378 - ITAT AHMEDABAD
Validity of assessment order passed u/s 143(3) - assessment made on a dead person - HELD THAT:- Assessee expired on 23.12.2007 and this fact was brought to the notice of the AO during the course of assessment proceedings vide assessees’s authorized representative Chartered Accountant, letter dated 1.9.2009. The Bench had called for the assessment record to verify whether the said letter was filed by the assessee and was forming part of the assessment record or not.
DR confirmed during the course of hearing by producing the assessment record that the said letter of the assessee dated 1.9.2009 was there in the assessment record. This proves that the assessee’s AR had brought to the notice of the AO the factum of the death of the assessee - AO, thereafter, instead of taking steps to bring the legal heirs on record, proceeded to frame the assessment of a dead person.
Thus, this issue is covered by the decision of this Bench of the Tribunal in the case of ITO Vs. Shri Akhter Nooruddinahmed Saiyed [2014 (6) TMI 113 - ITAT AHMEDABAD] DR could not bring any material before us to show that the impugned assessment order was passed after issuing any notice to the legal representative of the deceased individual. Therefore, in our considered view, the appeal filed by the Revenue is not maintainable.
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