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Showing 41 to 60 of 1461 Records
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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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2017 (7) TMI 1425 - DELHI HIGH COURT
Award of contract pursuant to its Notice Inviting Tenders (NIT) for providing security services - rejection of petitioner's bid - HELD THAT:- This Court is of the opinion that the claim in a writ petition for refund of EMD allegedly by encashing the bank guarantee without due cause per se is not a litigation relating to a "security job". The settled authorities, i.e. Tata Cellular v. Union of India [1994 (7) TMI 307 - SUPREME COURT], Michigan Rubber (India) Limited Vs. State of Karnataka & Others [2012 (3) TMI 512 - SUPREME COURT], Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr [2016 (9) TMI 1292 - SUPREME COURT], have emphasized that courts play a limited and circumscribed role in scrutiny, while exercising judicial review under Article 226 of the Constitution of India and that deference to executive decision ought to be the rule.
This court is of opinion that in the facts of this case, the rejection of the petitioner's bid is plainly arbitrary as the tender evaluation committee adopted a wide interpretation of the tender condition. A wide interpretation - as held by this court, results in manifest injustice and arbitrariness, because it decrees exclusion and commercial limbo, as it were, to a party that is otherwise eligible and fit to enter into contract, merely because it has approached the courts. This exclusion is both in restraint of legal proceedings, as it prevents any entity from seeking legal redress, regardless of CGHS' unreasonableness in withholding any dues, and also is unfounded in law. For these reasons, the cancellation of the petitioners' bid is arbitrary and unreasonable.
The decision to award the tender and the contract arising out of the award to the third respondent, Jai Prakash Security Agency is hereby set aside - Petition allowed.
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2017 (7) TMI 1424 - RAJASTHAN HIGH COURT
Dishonor of Cheque - subsequent sentence shall run concurrently or not - commercial transaction - HELD THAT:- The coordinate Bench of this Court in Ramesh Kumar Gupta Vs. The State of Rajasthan [2017 (2) TMI 1521 - RAJASTHAN HIGH COURT] has held that it is ordered that the substantive sentences awarded to the petitioner in the above referred 14 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively.
The present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation.
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2017 (7) TMI 1423 - SC ORDER
Presence of advocate during interrogation - whether the petitioner should be allowed to have the company of his lawyer during interrogation by the customs officials under Section 108 of the Customs Act, 1962, for which summons have been issued to him? - HELD THAT:- It is not necessary to discuss the facts or nuances of this case. Suffice is to state that having regard to the age of the petitioner and other attendant circumstances, in the peculiar facts of this case, it is opined that the petitioner should be allowed the company of his Advocate - At the same time, it is made clear that the petitioner's advocate would be permitted to sit at a visible distance, but beyond audibility.
SLP disposed off.
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2017 (7) TMI 1422 - BOMBAY HIGH COURT
Right to vote - Section 62 (5) of the Representation of the People Act, 1951 - HELD THAT:- It is no doubt true that the petitioner is facing about 10 cases. It is also not in dispute that as on date the petitioner is not convicted of any of the offence / charges levelled against him. Mr. Chavan relied on Section 62(5) of the R.P. Act. Section 62 (5) lays down that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police; Provided that nothing this subsection shall apply to a person subjected to preventive detention under any law for the time being in force; Provided further that by reason of the prohibition to vote under this subsection, a person whose name has been entered in the electoral roll shall not cease to be an elector.
The Presidential elections are scheduled on 17.07.2017 and the papers are produced before me today in the afternoon session. In view of the limited time at my disposal, I am prima facie of the opinion that Section 62 of the R.P. Act is not applicable to the Presidential Elections. Presidential Election is governed by the Presidential and Vice Presidential Elections Act, 1952. Mr. Chavan did not point out any provision under the R.P. Act that prohibits the undertrial to cast vote in the Presidential Election.
Petitioner is permitted to cast vote for Presidential Elections 2017, scheduled on Monday i.e. 17th July, 2017 -
Jail Superintendent, Byculla and Commissioner of Police, Mumbai are directed to take appropriate steps for producing him at the place of polling viz: Central Hall, 4th Floor, Vidhan Bhavan, Backbay Reclamation, Mumbai 400 032 with sufficient police escort for the purpose of casting vote for the Presidential Elections 2017. They shall ensure that petitioner is taken to the Polling Station before 10.00 a.m. positively. After casting vote, he shall be immediately taken back to Byculla Jail.
Petition disposed off.
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2017 (7) TMI 1421 - ALLAHABAD HIGH COURT
Exemption u/s 11 - registration granted u/s 12 A cannot cancelled by the CIT - Activities of the assessee were hit by the first and second proviso to section 2(15) of the I.T. Act w.e.f. 01.04.2009 - HELD THAT:- Parties at the outset could not dispute that issue raised in this appeal is squarely covered by this Court’s judgment in Commissioner of Income Tax, (Exemption), Lucknow Vs. M/s Yamuna Expressway Industrial Development Authority [2017 (4) TMI 1154 - ALLAHABAD HIGH COURT]
As the question raised in this appeal is answered against Revenue.
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2017 (7) TMI 1420 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- This debtor company having come out of reference on 01.12.2016, since the claim of this Creditor has risen while the debtor was continuing as sick unit, this claim is claimable from the date BIFR proceedings have been stood as abated, whereby this Bench hereby holds that the claim raised by the Creditor is well within the limitation. So far this company has not initiated any proceedings before this Bench seeking any relief to claim as stated in the eighth schedule of I & B Code, therefore we hold that this claim is within limitation.
It is an admitted fact that this Corporate Debtor has not raised any dispute either by filing any suit or any proceeding in respect to of the quality of goods, therefore, this appears as a defense set up for the sake of frustrating this claim, but not basing on any dispute as required under I & B Code.
The Creditor in this case has not claimed any interest over the value of the goods supplied in the year 2011-12, he has only added the arrears of the interest that is payable by the Corporate Debtor for delay that has happened in making payment in respect to earlier invoices in 2010-11. Since it has been showing in the accounts maintained by the applicant, we believe that this Creditor is entitled to claim the arrears of interest i.e. Rs. 10,70,400 over the dues of the year 2010-2011. To prove this claim, the Creditor having filed invoices for the goods supplied to the Corporate Debtor, as to default is concerned, since the Corporate Debtor himself has taken ground that the claim is barred by limitation, the Creditor having disclosed that no payment has been made by the Corporate Debtor herein and the same not being disputed by the debtor, it can be said without any further proof that this Corporate Debtor defaulted in making payment of the Claim made by the Creditor.
This debt is barred by limitation, that goods are of inferior quality, and those pleas being turned down, we hold that this case is fit for initiation of insolvency resolution process - Petition admitted - moratorium declared.
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2017 (7) TMI 1419 - SC ORDER
Interpretation of statute - Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 - HELD THAT:- The interpretation placed by the High Court on Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006, in the impugned order, with reference to arbitration proceeding is fully justified and in consonance with the provisions thereof.
All other matters dealt with in the impugned order are not relevant for the adjudication of the present controversy, and need not be examined - SLP dismissed.
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2017 (7) TMI 1418 - ITAT AMRITSAR
Interest due on ‘Non-Performing Assets’ - CIT deleting the addition made by the AO holding that the interest due on ‘Non-Performing Assets’ was taxable as the Co-op Bank was following mercantile system of Accounting except with regard to the interest pertaining to NPAs - HELD THAT:- As per CIT it is to taxed in the year of actual receipt even though it is following mercantile system of Accounting.at the assessee is a Co-operative Society which is engaged in the business of banking and has been following the directions of the Apex Bank and according to that interest due on NPAs had to be accounted for as income on actual receipts basis. Even otherwise, AS9 of ICAI on Revenue recognitions provide for, where there in uncertainty about the collection of Revenue, recognition of income or such Revenue is postponed to the extent of uncertainty involved, therefore, the assessee recognized Revenue on advances classified as NPAs on actual receipt basis and even the assessee consistently following the method of accounting in accordance with Section 145 of the Act. Therefore, on the aforesaid reasons and observations, we do not have any hesitation to uphold the action of the Ld. CIT(A) to dismiss the appeals of the Department. Hence, the instant appeals stand dismissed.
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2017 (7) TMI 1417 - ITAT MUMBAI
Exemption claimed u/s 80-P with regard to the interest income earned on fixed deposit with State Bank of India - CIT(A) noticed that the decision of the Mumbai Bench of Tribunal in the case of M/s. Jaoli Taluka Sahakari Patpedhi Maryadit [2015 (9) TMI 170 - ITAT MUMBAI] fully covered the controversy in favour of the assessee - HELD THAT:- At the time of hearing, the ld. DR reiterated the stand of the Assessing Officer, but quite fairly pointed out that the CIT(A) has followed the decision of the Mumbai Bench of the Tribunal in the case of M/s. Jaoli Taluka Sahakari Patpedhi Maryadit (supra), which continues to hold the field. In view of the aforesaid fact-situation, we find no reasons to interfere with the decision of the CIT(A), which we hereby affirm. Thus, appeal of the Revenue is dismissed.
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2017 (7) TMI 1416 - ITAT CHENNAI
Addition invoking the provisions of Section 41 being the amount received for installation of wind energy generators - HELD THAT:- If the assessee had declared the amount of ₹ 1 crore as its income, for the assessment year 2014-15 then obviously making addition once again in the hands of the assessee for the relevant assessment year 2010-11 would amount to double taxation. Further due to the various commercial relationships between the assessee and its clients, the assessee had treated the amount of ₹ 1 crore as its liability in the relevant assessment year, by not invoking the penalty clause in the agreement executed between them, thereby providing an opportunity to its client to comply with the terms and conditions of the agreement and hence the assessee had not appropriated the advance.
Only during the assessment year 2014-15, the assessee had invoked the penal provisions of the agreement and appropriated the advance received from its clients. This act of the assessee based on commercial prudence cannot be questioned by the Revenue. Therefore, if the assessee had declared the amount of ₹ 1 crore as its income, for the assessment year 2014-15 then there is no scope for the Revenue to make addition for the assessment year 2010-11 once again. Hence we hereby direct the Ld.AO to verify whether assessee had declared the amount of ₹ 1 crore as its income U/s.41(1) of the Act, for the assessment year 2014-15 and if found so, delete the addition made for the relevant assessment year and if found otherwise, reinstate his earlier order on this issue.
Addition being the claim of amortization of expenses u/s 35D - assessee had incurred expenditure towards commission for raising private equity share from M/s. Dubai Ventures LLC, Dubai UAE and had claimed the aforesaid amount as miscellaneous expenditure in the balance sheet and written off 1/5th as preliminary and pre-operative expenses in its profit & loss account - HELD THAT:- Hon’ble Apex Court BROOKE BOND INDIA [1997 (2) TMI 11 - SUPREME COURT] has held that any expenditure incurred directly related to the expansion of capital base of a company will fall in the capital field and not in the revenue field. In the case of the assessee, the expenditure is incurred for increasing its equity capital base. Therefore, as per the ratio laid down by the Hon’ble Apex court such expense will fall under the capital field. Further as per the provisions of Section 35D of the Act, there is no scope for the assessee to amortize such expense.
The decisions of the Hon’ble Apex Court supra and the provisions of Section 35D of the Act cited herein above was lost sight off by the Tribunal while passing orders in the earlier instance. Since, we are bound to follow the decision of the Hon’ble Apex Court, respectfully following the same, we hereby hold that, in the case of the assessee the commission expenses incurred towards increasing its equity capital base, can neither be amortized U/s.35D of the Act, nor it can be claimed as Revenue expenditure as it falls in the Capital field.
It has been also categorically held by the Hon’ble Apex Court in the case Punjab State Industrial Development Corporation [1996 (12) TMI 6 - SUPREME COURT] that expenses incurred in relation to increase in capital base is capital expenditure incurred by the assessee company, even though its certainty helps the company in profit making but yet it retains the characteristics of capital expenditure. In the case CIT vs. Motor Industries Limited [1997 (8) TMI 70 - KARNATAKA HIGH COURT] held that the expenses incurred in relation to right issue where of capital in nature and therefore cannot be claimed as revenue expenditure. Hence we find the order of the Ld.AO to be appropriate in the given circumstance. Accordingly, we hereby set aside the order of the Ld.CIT(A) and reinstate the order of the Ld.AO on this issue.
Disallowance of additional depreciation U/s. 32(1)(iia) on windmill - AO disallowed the claim of additional depreciation because the business of generation, transmission or distribution of power which was made eligible for additional depreciation U/s.32(1)(iia) of the Act, came in to effect from the assessment year 2013-14 as per Finance Act, 2012 - HELD THAT:- From the facts of the case, it is evident that the assessee had claimed additional depreciation on the windmill erected by it for generating and distribution of power in order to earn revenue. In this situation, we do not find any infirmity in the order of the Ld. Revenue Authorities on this issue. As held by the Ld.AO the business of generation, transmission or distribution of power was brought within the ambit of Section 32(1)(iia) of the Act, by the Finance Act, 2012 w.e.f. 01.04.2013 i.e., from the assessment year 2013-14. Since the case of the assessee is for the assessment year 2011-12, obviously the assessee will not be eligible for the benefit of additional depreciation during the relevant assessment year. Further it is not the case of the assessee that the assessee is claiming the additional depreciation with respect to its manufacturing activities.Therefore this issue raised by the assessee does not have any merits.
Disallowance of service tax element attributable to the 1/5th portion of preliminary expenses U/s.35D - HELD THAT:- Since the expenses was related to assessment year 2009-10, the Ld.AO disallowed the claim of expenditure and even denied the benefit of amortization of expenses U/s. 35D - On appeal, the Ld.CIT(A) confirmed the order of the Ld.AO. Since, we have held hereinabove that the expenses incurred in the form of commission for private placement of the equity shares of the assessee company, is not allowable for deduction U/s.35D of the Act, any expenses connected with it such as service tax also will not be entitled for the benefit of deduction U/s.35D of the Act to the assessee. Therefore, the appeal filed by the assessee does not have any merit.
Disallowance of the advance written-off by the assessee as revenue expenditure - HELD THAT:- From the facts of the case, it is apparent that the assessee had advanced money for buying cranes which were to be deployed in the manufacturing activity of the assessee. However, the assessee could neither acquire the cranes nor recover the amount advanced from the company who has promised to deliver the cranes. In this situation, it is nothing but a loss which the assessee had incurred during the course of its business. The assessee had no other reason to give advance to M/s. MIC MiddleEast FZE other than for purchase of cranes, which is to be used in the assessee’s manufacturing activities. Therefore the reliance placed by the assessee in the decision of the Hon’ble Jurisdictional Madras High Court in the case of CIT vs. Indian Biselers [1989 (9) TMI 57 - MADRAS HIGH COURT] will hold good and accordingly the assessee deserves the benefit of deduction under the Act because it is a loss incurred during the course of the business of the assessee. - Decided against assessee.
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2017 (7) TMI 1415 - ITAT CHENNAI
Assessment u/s 153A - search conducted u/s 132 on the premises of the assessee - Whether no incriminating material was found during the course of search? - HELD THAT:- In the present case, admittedly, no assessment under section 143(3) of the Act was completed and moreover, even though no incriminating materials were found during the course of search, the decisions relied on by the ld. CIT(A) are not applicable. See DR. P. SASIKUMAR [2016 (7) TMI 1227 - KERALA HIGH COURT] wherein held even if no documents are unearthed or any statement made by the assessee during the course of search under section 132 and no materials are received for the afore specified period of six years, the assessee is bound to file a return, is the scheme of the pro vision. Even though the second proviso to section 153A speaks of abatement of assessment or reassessment pending on the date of the initiation of search within the period of six assessment years specified under the provision that will also not absolve the assessee from his liability to submit returns as provided under section 153A(1)(a). This being the scheme of the provisions of the Act, the Appellate Tribunal ought to have considered the issue with specific reference to the facts involved in the case and as provided under section 153A.
We set aside the order of the ld. CIT(A) and direct him to adjudicate the grounds raised by the assessee on merits in accordance with law after allowing sufficient opportunities of being heard to the assessee. Accordingly all the appeals filed by the Revenue are allowed for statistical purposes.
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2017 (7) TMI 1414 - SUPREME COURT
Eviction petition - eviction was claimed Under Section 11(2)(b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act, 1965 inter alia on the ground of bona fide need of the Appellant to start business in the Schedule suit shops - whether the High Court was justified in allowing the writ petition filed by the Respondent-tenant Under Article 227 of the Constitution and was, therefore, justified in interfering in the four orders of the Trial Court/Executing Court impugned therein and, in consequence, justified in remanding the case to the Trial Court for deciding the eviction petition de novo on merits with specific directions to the Trial Court?
HELD THAT:- There was no case made out on facts or/and in law by the Respondent for entertaining his writ petition and interfere in the orders impugned therein - In the first instance itself, the High Court should have dismissed the writ petition in limine on the ground that since all the 4 orders impugned in the writ petition were amenable to their challenge before the appellate authority, the writ petition was not the proper remedy without first filing the appeal and get the same decided by the appellate Court on its merit in accordance with law.
The executing Court having seized of the applications filed by the Respondent, there was no justification on the part of the High Court to have entertained the writ petition and decided them like an original court. All that the High Court, in such circumstances, could do was to request the executing Court to dispose of the pending applications (IAs) filed by the Respondent on their respective merits leaving the parties to challenge the orders once passed on such applications by filing appeal, before the appellate authorities. It was, however, not done.
Once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein - there was absolutely no case made out by the Respondent on the merits calling any kind of interference by the High Court in its supervisory jurisdiction Under Article 227 in any of the four orders. The reasons are not far to seek.
The Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the Respondent. Once the final order had been passed, the remedy of the Respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside Under Order 9 Rule 13 of the Code. The Respondent did not do so within the time prescribed for the reasons best known to him - this is not a case where the Respondent could be held to be unaware of the eviction proceedings pending or/and decided against him nor it was a case holding that he was never afforded any opportunity to contest the eviction proceedings.
The High Court failed to see that the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion - the impugned order is without jurisdiction, the same deserves to be set aside.
The eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1413 - MADRAS HIGH COURT
Seeking to declare the EGM notice illegal - injunction restraining the defendants from convening AGM of the plaintiff company - plaint averment is that the defendants are attempting to capture the management by calling for EGM in violation of Section 100 of the Act - HELD THAT:- After notification of Sections 241 and 242 except Section 242(1)(b), 242(2) clauses(c) and (g) vide S.O.1934(E) dated 01.06.2016 and Section 242(1)(b) and 242(2)(c) and (g) vide, Notification S.O.2912(E), dated 09.09.2016, the National Company Law Tribunal (in short “NCLT) alone is empowered to deal matters relating to oppression. Likewise Section 100 of the Act, which was notified and brought into effect on 12.09.2013 lays down the procedure to be adopted to call for EGM by the Board. In case of any breach or violation, by virtue of the supervisory power conferred under Section 98 of the Act, the Tribunal either suo motu or on application can call for meeting of members.
Member aggrieved by the decision of the EGM or the manner it was convened can challenge it before the Tribunal under Section 242 of the Act. Such power is exclusively conferred to Tribunal under Section 98 and 242 of the Act. In this case, the plaintiff company right to seek redressal is very well taken care by the statute under Section 242 of the Act.
On considering the plaint averments, cause of action and the statute governing the dispute in entirely undoubtedly indicates that the subject matter for determination squarely falls within the domine of the NCLT and therefore, Civil Court jurisdiction is ousted expresssly by Section 430 of the Act. The Trial Court has erroneously dismissed I.A.No.1080 of 2016 without taking note of Section 98, 100 and 242 of the Companies Act, 2013. Failure to mention specific provision of Law by the petitioner cannot be an excuse for the Court to overlook the provisions relevant for the case. What the lower Court ought to have looked for is whether a real cause of action has been set out and clear right to sue is made out in the plaint.
The Civil Revision Petition is allowed.
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2017 (7) TMI 1412 - BOMBAY HIGH COURT
Assessment u/s 153A - Whether ITAT was justified in not deciding the issue on merits holding that it was not open for the Assessing Officer to make additions in the assessment under Section 153A read with Section 143(3) without the existence of any incriminating documents found or seized during the search action under Section 132? - HELD THAT:- We find that the impugned order of the Tribunal has dismissed the Revenue's appeal before it by following the decision of this Court in CIT Vs All Cargo Logistic Ltd Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT] and CIT Vs Gurinder Singh Bawa [2015 (10) TMI 1761 - BOMBAY HIGH COURT] - Thus, no fault can be found with the impugned order of the Tribunal in following binding order of this Court,
Revenue states that as the Revenue has filed an Special Leave Petition against the order of this Court in All Cargo Logistics Ltd. (supra) and in Gurinder Singh Bawa (supra) in the Hon'ble Apex Court, this appeal has been filed to keep the issue alive. In any case as there is no stay brought to our notice as to the two orders passed by this Court. Thus, no substantial question of law arise at this stage.
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2017 (7) TMI 1411 - BOMBAY HIGH COURT
Assessment u/s 153A - proof of existence of any incriminating documents found or seized during the search action under Section 132 -disallowance of the assessee's claim of LTCG and treating the same as business income - HELD THAT:- Tribunal has dismissed the Revenue's appeal by following the decision of this Court in CIT Vs All Cargo Logistic Ltd Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT]
Where no assessment has been completed under Section 143(1) and only processing of returns is done, the AO is competent to invoke the jurisdiction under Section 153A/153C of the Act and complete the assessments following the procedure laid down under Section 143(3) of the Act, even in the absence of incriminating documents - The impugned order has dismissed the Revenue's appeal by following the decision of this Court in CIT Vs Gurinder Singh Bawa [2015 (10) TMI 1761 - BOMBAY HIGH COURT]. As the impugned order of the Tribunal has merely followed the orders of this Court, no fault can be found with the same.
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2017 (7) TMI 1410 - CESTAT CHENNAI
Levy of penalty on CHA - excess payment of drawback to the appellant, due to wrong mentioning of rates in the bills of entry by CHA - HELD THAT:- The imposition of penalty is on the sole technical ground of the error on the part of the CHA. To error is human and every error whether bona fide or mala fide will not attract penalty. Penalty by itself simplicitor suggests penal action, which is required to be taken against a person with the mala fide mind or fraudulent action. Such simple mistakes cannot be put to penal liabilities on the part of the person concerned, especially when he himself has detected the mistake and rectified the same.
The imposition of penalty is unjustified - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1409 - DELHI HIGH COURT
Representation of respondent - HELD THAT:- The respondent No.1 is directed to file its affidavit making a disclosure of the number of complaints pending at the stage of making of the prima facie opinion with him from 01.01.2017 onwards; the number of cases in which he has given the prima facie opinion every month from January 2017 onwards till date and the earliest complaint that is pending before him at this stage. The affidavit with complete particulars shall be filed within two weeks.
List on 24.08.2017.
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2017 (7) TMI 1408 - ITAT COCHIN
Reopening of assessment u/s 147 - disallow the set off of unabsorbed depreciation claimed from 1998-99 onwards - no business was carried on by the assessee for the AY 1999-2000 to AY 2009-10 and therefore, the unabsorbed depreciation for the above said period could not be carried forward and set off for future years - Whether claim of depreciation is allowable for both “active” and “passive” use of the asset including an asset that is in ready-for-use condition? - HELD THAT:- The factual finding of the CIT(A) that the asset in question was not kept ready for use condition and there was no passive use of the same for the assessment years 1999-2000 to 2009-10, has not been dispelled by the assessee by placing any contrary evidence before the Tribunal. Therefore,we confirm the order of the CIT(A).
Assessee’s contention that the CIT(A) has exceeded his jurisdiction by giving direction to the Assessing Officer to make remedial measures to withdraw set off unabsorbed depreciation for the assessment year 2010-11 and the assessment years 2012-13 onwards, we are of the view the assessee has to challenge the order of the Assessing Officer when remedial measures are taken by AO for the respective AY 2010-11 and AY’s 2012-13 onwards. The Tribunal has to confine itself to examination of the issue concerning the current year, namely AY 2011-12. - Decided against assessee.
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2017 (7) TMI 1407 - ITAT KOLKATA
Disallowance of set off of unabsorbed depreciation pertaining to the earlier year - HELD THAT:- Hon’ble Gujarat High Court in the case of General Motor (India) Pvt. Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT] as held that after the amendment made vide the Finance Act, 2001, the balance of unabsorbed depreciation revived back into life and became eligible for carry forward and set off along with other parts of unabsorbed depreciation available to the credit of the assessee. This issue is thus squarely thus covered in favour of the assessee by the said decision of Hon’ble Gujarat High Court and in the absence of any contrary decision, brought to our notice that the learned DR which is in favour of the revenue on this issue, we respectfully follow the same and uphold the impugned order of the Ld. CIT(A) allowing the claim of the assessee for set off of unabsorbed depreciation pertaining to A.Y. 1997-08 to 2000-01.
Disallowance of provisions made for non-moving/obsolete stock and spares - HELD THAT:- Altogether new stand was taken by the assessee before the Ld. CIT(A) that the provision for non-moving/obsolete stock and spares to the extent of ₹ 2,80,01,392/- actually pertained to the difference in physical and book stock as found on physical verification - As submitted that this new stand taken by the assessee for the first time before him however, was accepted by the Ld. CIT(A) without giving any opportunity to the AO to verify the same and this position clearly evident from the impugned order of the Ld. CIT(A) is not disputed even by the learned counsel for the assessee. We, therefore, consider it fair and proper and in the interest of justice to set aside the impugned order of the Ld. CIT(A) and on this issue the matter to the file of the AO for deciding the same afresh after verifying the stand of the assessee that the provision for non-moving/obsolete stock and spares actually was on account of difference in physical and book stock as found on physical verification. Ground No. 2 and 3 of the revenue’s appeal are accordingly treated as allowed as statistical purposes.
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