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Showing 41 to 60 of 1227 Records
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2012 (8) TMI 1194 - DELHI HIGH COURT
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... ... ..... receipt of the same. In terms of the provisions of sections 391 and 394 of the Companies Act, 1956, all the property, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, all the liabilities and duties of the Transferor Company be transferred to the Transferee Company without any further act or deed. Upon the Scheme coming into effect, the Transferor Company shall stand dissolved without winding up. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or any other charges, if payable, in accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law. 14. The Petitioner Companies would voluntarily deposit a sum of ₹ 1,00,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. 15. The Petition is allowed in the above terms.
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2012 (8) TMI 1193 - ITAT CHENNAI
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... ... ..... ion of the evidence which is not permissible in law. 2. De-hors merits of the case, the second Miscellaneous Petition for rectification of the order of the Tribunal or restoration application of Miscellaneous Petition is not maintainable before the Tribunal. The Hon'ble Orissa High Court in the case of CIT Vs. ITAT reported as 196 ITR 838 has held that an order rejecting the application for rectification under section 254(2) is not an order passed under section 254(1) and it cannot be rectified under section 254(2). The Hon'ble Madras High Court in the case of Dr. S. Paneerselvam Vs. CIT reported as 319 ITR 135 relying on the judgement of the Hon'ble Orissa High Court has held that second application for rectification is not maintainable under the provisions of section 254 of the Income Tax Act, 1961. Therefore, the present Miscellaneous Petition is dismissed being not maintainable. Order pronounced in the open court on Friday, the 24th of August, 2012 at Chennai.
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2012 (8) TMI 1192 - MADRAS HIGH COURT
Offence by Companies - Public charitable - "A Person" Or "A Company" as referred to in Section 141 of the Negotiable Instruments Act (Act) - Trustees of the first accused Trust in-charge of the day-to-day affairs of the first accused Trust - Whether a Public Charitable Trust has been recognised as a juristic person for the purpose of Act - HELD THAT:- Applying the law laid down by the Constitution Bench of the Hon'ble Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer [1990 (5) TMI 229 - SUPREME COURT], as I have already concluded, considering the intention of the Legislature while bringing in Chapter- XVII of the Negotiable Instruments Act and the fact that a Trust having two or more trustees will squarely fall within the ambit of 'association of individuals' which in turn will fall within the meaning of the term 'company', I am of the view that a Trust having a single trustee should also be brought within the definition of the term 'company' and thus the expression 'Trust' should be read into the Explanation 'a' to Section 141 of the Negotiable Instruments Act. If this interpretation is not given, certainly Sections 138 and 141 of the Act will not have force and life, so far as they relate to a Trust having a single Trustee. Further, if one holds that a Trust having two or more trustees is a 'company' falling within the sweep of Sections 138 and 141 of the Act, at the same time a Trust having a single trustee will not fall within the ambit of Sections 141 and 138 of the Act, the result, as I have already concluded is only an absurdity. In order to avoid the said absurdity and in order to give force and life to the provisions of Sections 138 and 141 of the Act, I hold that the expression 'company' as explained in Section 141 of the Act takes into its ambit a Trust having a single trustee also. In view of this interpretation, I firmly hold, that a Trust, having either a single trustee or two or more trustees, is a 'company' in terms of Section 141 of the Negotiable Instruments Act.
My conclusions are summed up as follows:-
(i) A Trust, either private or public / charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable u/s 138 of the Negotiable Instruments Act.
(ii) A Trust, either private or public / charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act.
(iii) For the offence u/s 138 of The Negotiable Instruments Act, committed by the Trust, every trustee, who was in-charge of the day-to-day affairs of the Trust shall also be liable for punishment besides the Trust.
A perusal of the complaint would go to show that there are sufficient averments to the effect that these petitioners being the trustees of the Trust (Company) were in-charge of running of the Trust along with the second accused and they all entered into a Memorandum of Understanding on 06.10.2008, with the respondent in which they agreed to honour the cheques in question. The Memorandum of Understanding dated 06.10.2008, filed before the lower Court is found in page Nos. 69 to 88 of the typed set of papers filed by the petitioners. A reading of the above Memorandum of Understanding would go to show that the issuance of the said cheques in question on behalf of the first accused has been admitted by the petitioners and that they have assured that the cheques will be honoured on presentation.
The above averments in the complaint together with the Memorandum of Understanding would go to prima facie show that they were in-charge of the day-to-day affairs of the Trust (Company) and, therefore, the prosecution is maintainable as against them also. At this juncture, I wish to add that it is not my conclusive finding that these petitioners 2 to 8 are liable for punishment u/s 138 of the Negotiable Instruments Act by applying vicarious liability as envisaged in Section 141 of the Negotiable Instruments Act. I only say that as of now, there are prima facie materials to make out a prima facie case so as to maintain the prosecution. It is for the Trial Court to decide on evidence as to whether these petitioners 2 to 8 were really in-charge of the day-to-day affairs of the Trust (company) and so whether they are liable for punishment vicariously for the offences committed by the first accused Trust.
Thus, I hold that these petitions deserve only to be dismissed and accordingly, they are dismissed. Consequently, the connected miscellaneous petitions are closed.
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2012 (8) TMI 1191 - ANDHRA PRADESH HIGH COURT
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... ... ..... Lord Curzon in the despatch Your despatch of August 5 arrived. It goes to Foreign Department. Thereupon Clerk 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it. Then comes Clerk 2 with 31 more pages upon Clerk 1. Then we get to the region of Asst. Secretaries, Dy. Secretaries and Secretaries. All these gentlemen state their worthless views at equal length. Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print. Then these papers wander about from department to department and amid the various Members of Council. I am grappling with this vile system in my own department, but it has seated itself like the Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden. 20. Judicial Discretion - Yale University Press Pg.9
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2012 (8) TMI 1190 - SUPREME COURT
Dowry Death - Seeking grant of anticipatory bail - Proclaimed offender in terms of Section 82 - deceased had allegedly committed suicide after one year and eight months of marriage and further she was pregnant at the time when she had taken her life - whether the Appellant, who is elder brother of the husband of the deceased, has made out a case for anticipatory bail in terms of Section 438 of the Code of Criminal Procedure, 1973? - HELD THAT:- It is seen that the deceased had allegedly committed suicide after one year and eight months of marriage and further she was pregnant at the time when she had taken her life. On the basis of the complaint filed by the mother of the deceased, an FIR was registered and during the course of the investigation, the police recorded the supplementary statements of Hira Lal, father of the deceased, the neighbour of the deceased near the matrimonial home as well as the complainant -mother of the deceased.
According to the prosecution, it has been clearly made out, particularly, insofar as the Appellant is concerned, that there was a definite allegation against him. Further, the Appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.
By placing the relevant materials and two status reports submitted by the police, Mr. Sidharth Luthra, learned ASG submitted that the Appellant was a Proclaimed Offender. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.
In the light of the conditions prescribed in Section 438 of the Code and conduct of the Appellant immediately after the incident as well as after the interim protection granted by this Court, we are of the view that the Appellant has not made out a case for anticipatory bail. Unless free hand is given to the investigating agency, particularly, in the light of the allegations made against the Appellant and his family members, the truth will not surface.
Therefore, we are unable to accept the claim of the Appellant.
We make it clear that while upholding the rejection of the anticipatory bail, we have not expressed any opinion on the merits of the case. We also clarify that after surrender, the Appellant is free to move bail application before the Court concerned which may be disposed of in accordance with law.
Hence, the appeal is dismissed and the interim protection granted by this Court on 23.03.2012 stands vacated. The Appellant is directed to surrender within a period of one week from today.
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2012 (8) TMI 1189 - DELHI HIGH COURT
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... ... ..... ding the deletion of addition of ₹ 54,06,701/- made on account of disallowance of the claim made by the assessee as staff welfare, when the same were considered as the entertainment expenses in the absence of any corroboratory evidence to substantiate the genuineness and reasonableness of expenditure 10. Whether the ITAT was correct in the eyes of law in upholding the deletion of the addition of ₹ 10,37,367/- made on account of the disallowance of advertising and publicity expenses, as the same being not related to the year under consideration i.e. AY 1996-97. 11. Whether the ITAT was correct in the eyes of law in upholding the deletion of the addition of ₹ 10,17,553/- made on account of disallowance of the Air Travel Tax paid by the assessee, when the same is covered u/s 43B of the Income Tax Act, 1961 and for which no proof of payment has been furnished. It is open to the parties to file additional documents in the form of the paper book within four weeks.
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2012 (8) TMI 1188 - ITAT MUMBAI
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... ... ..... e would also place on record that issue in ground no1 has arisen only because AO denied the treatment of incomes u/s 41(1) as business income and denied set off. There was no discussion by AO about denial of set off to capital gain income u/s 50. The assessee as an abundant precaution raised set off to capital gain income also as income u/s 41(1) was also agitated. Since the incomes being written off were now treated as business income, the carried forward losses may get absorbed by the income from business quantified as such, being less than amount considered as business income in ground no.2. Then issue in ground No1.becomes only academic in nature. These facts are clarified as Revenue has a tendency to agitate in higher forum even when facts do not require it to agitate further, like ground raised before us without examining the consequences of CIT(A) order. 9. In the result, appeal filed by the Revenue is dismissed. Order pronounced in the open court on 22nd August, 2012.
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2012 (8) TMI 1187 - SUPREME COURT
Allotment of Commercial Plots by way of Auction - Delayed in payment of installments - Liability to pay interest - Terms and condition of the allotment letter binds both the parties - In present case, since PUDA had failed to provide the basic amenities, Respondents were not legally obliged to pay interest, penal interest, penalty etc. on the delayed installments. PUDA submitted that the electrical works had been completed by 24.12.2002, public health works had been completed by 22.11.2002 and the development of the commercial pocket had been completed by 20.12.2002. On getting possession after payment of 25% of the total cost, Respondent raised construction on the allotted site in the year 2002.
HELD THAT:- There was no dispute that the plots were auctioned on 16.3.2001 on the basis of the terms and conditions stipulated therein. Clause 25 is the most important clause, which binds both the parties, the Respondents had accepted the commercial plots with the open eyes, subject to the conditions. that after having accepted the offer of the commercial plots in a public auction with a super imposed condition i.e. on "as is where is" basis and after having accepted the - terms and conditions of the allotment letter, including installment facility for payment, Respondents cannot say that they are not bound by the terms and conditions of the auction notice, as well as that of the allotment letter. On facts also, court have found that there was no inordinate delay on the part of PUDA in providing those facilities.
Hence, the High Court was not justified in holding that the Respondents are not liable to pay the interest, penal interest and penalty for the period commencing from 1.6.2001 to 31.12.2002 for the belated payment of installments. Consequently, the judgments of the High Court are set aside and the writ petitions would stand dismissed and the appeals would stand allowed as above. There will be no order as to costs.
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2012 (8) TMI 1186 - SUPREME COURT
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... ... ..... er Part II of the Indian Penal Code is restored and upheld. However, we deem it appropriate to maintain the sentence awarded by the High Court, which the accused has already undergone. 113. In addition, the accused is put to the following terms (1) Accused has to pay an amount of ₹ 50 lakh (Rupees Fifty lakh) to the Union of India within six months, which will be utilized for providing compensation to the victim of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims of hit and run cases. On default, he will have to undergo simple imprisonment for one year. This amount be kept in a different head to be used for the aforesaid purpose only. (2) The accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years. The Appeal is accordingly allowed in terms of the judgments and this common order.
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2012 (8) TMI 1185 - ALLAHABAD HIGH COURT
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... ... ..... s eligible to avail and utilize Cenvat credit on the basis of the documents which are not prescribed under the provisions of Rule 9 of the Cenvat Credit Rules, 2004? (iii) Whether Cenvat credit be allowed on the basis of documents which do not contain the statutory information as per the provisions of Rule 4A(2) of the Service Tax Rules, 1994?” The affidavit of service of Shri Aslam Hassan, Deputy Commissioner, Central Excise, Division-V, Ghaziabad has been filed stating that the copy of the petition along with annexures was served on the respondents on 12-7-2012. No one has put in appearance for the respondent. Let notice be sent to the respondent fixing 24th September, 2012 as date for hearing. Steps may be taken within three weeks. Until further orders, the proceedings in pursuance of the order of the remand dated 15-2-2012 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/731/2011-EX(DB), E/S/874/2011-EX shall remain stayed.
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2012 (8) TMI 1184 - ITAT MUMBAI
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... ... ..... ime of hearing before us, it was also submitted by ld A.R. that the department filed appeal before the Hon’ble Bombay High Court being Income tax Appeal No.3160 of 2010 against the order of the Tribunal and the Hon’ble High Court vide its order dated 7th July, 2011 confirmed the order of the Tribunal. To substantiate his submission, ld A.R. filed a copy of the said order of Hon’ble High Court. 8. Considering the facts of the case before us, we agree with ld A.,R. that the issue is squarely covered by the order of the Tribunal in the case of Essar Oil Ltd (supra), which has been confirmed by the Hon’ble High Court and ld CIT(A) has decided the issue relying on the above said order of the Tribunal. Therefore, we do not find any infirmity in the order of ld CIT(A). Hence, we uphold his order and reject the ground of appeal taken by the department. 9. In the result, appeal filed by department is dismissed. Pronounced in the open court on 31st August, 2012.
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2012 (8) TMI 1183 - ITAT AHMEDABAD
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... ... ..... of interest to outside parties as compared to the depositors covered u/s 40A(2)(b) of the Act. In these facts of the case, we hold that the addition / disallowance made u/s 40A (2)(b) on account of excessive interest is not justified and is deleted accordingly and the ground of appeal No.1 is allowed.” 5.1 In view of the above discussions, keeping consistency with the decision taken in similar facts and circumstances by our Co-ordinate Bench, we hereby allow the appeal of the assessee in IT(SS)A No.50/Ahd/2010 for AY 2001-02. 5.2 Since, the facts and issue involved in case of the assessee for AY 2002-03 and 2003-04 are similar to that of AY 2001-02 and both the sides requested the Bench that the decision taken in the case of the assessee in AY 2001-02 may be followed in AY 2002-03 and 2003-04, we hereby allow both the appeals of the assessee in IT(SS)A No.51 and 52/Ahd/2010 for AY 2002-03 and 2003-04. 6. In the result, all the three appeals of the assessee are allowed.
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2012 (8) TMI 1182 - HIMACHAL PRADESH HIGH COURT
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... ... ..... ment of a policeman is necessarily false. In the present case, there is nothing to show that the policemen were making false statements in the court. They had no enmity with the accused. 15. Mr. Shanti Bhushan submitted that it is possible that these policemen demanded some money from the accused which they did not give and hence they were falsely implicated. This case was not set up by the accused at any point of time and no such suggestion was even made in the crossexamination.” 26. In view of the above discussion, the appeal is allowed. The judgment of the learned trial Court, dated 28.12.2002, is set aside and we convict both the accused persons for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Bail bonds furnished by the accused are cancelled. They now be produced before us on 3rd October, 2012, for being heard on the issue of quantum of sentence. The Registry to take necessary follow up action.
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2012 (8) TMI 1181 - ITAT JAIPUR
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... ... ..... After considering the submissions of both the parties and the materials available on record, it is noticed that in earlier year the ITAT Jaipur Bench vide its order dated 17-06-2010 in ITA No. 581/JP/2009 for the assessment year 2006-07 in assessee's own case confirmed the order of the ld. CIT(A) in directing the AO to allow depreciation and financial expenses from net profit. The ld. CIT(A) by following the aforesaid decision directed the AO to allow the benefit of depreciation and financial expenses to the assessee after applying the net profit rate of 8% and that view is also supported by judgements of Hon'ble Jurisdictional High Court in the case of CIT vs. Jain Construction, 245 ITR 527 and CIT vs. Bhawan Va Path Nirman (Bohra) and Co. 258 ITR 440. We therefore, do not see any valid ground to interfere with the impugned order passed by the ld. CIT(A). 3.0 In the result, the appeal of the Department is dismissed. (Order Pronounced in the open Court on 30-08-2012).
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2012 (8) TMI 1180 - ITAT CUTTACK
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... ... ..... ions of various loan creditors and also the details of loan repayment in cash as well as cheque. The said details as well as loan confirmations etc., are claimed by the assessee to have been filed before the learned CIT(A) but we find that the learned CIT(A) in his cryptic order has confirmed the addition without examining such details furnished by the assessee before him. In view of the complete details furnished by the assessee along with the loan confirmation of loan creditors as of now in the Paper Book, for the interest of justice and fair play, we set aside the impugned order of the learned CIT(A) and restore the issue to the file of the Assessing Officer for considering the issue relating to cash credits afresh in the light of evidences produced by the assessee as in the Paper Book filed before us and decide the issue in accordance with law of course strictly following the natural justice. 7. In the result, the appeal of the assessee is allowed for statistical purpose.
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2012 (8) TMI 1179 - MADRAS HIGH COURT
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... ... ..... . 4 In view of the above, the impugned assessment order of the respondent, dated 31.05.2012, is set aside. However, it is open to the respondent to issue a fresh notice to the petitioner, as per Rule 52 of the Tamil Nadu General Sales Tax Act, 1959 and thereafter, pass an assessment order, as per law, after receiving the objections, if any, from the petitioner and after giving the petitioner an opportunity of personal hearing. The respondent shall pass the assessment order, as directed by this Court, as expeditiously as possible. 5 The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed
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2012 (8) TMI 1178 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ing anything separately for earning the interest. However, where any expenditure in the nature of commission or collection charges or such similar expenditure which may be essential and had been spent solely for the purpose of earning that income, the same would be deductible. 14. Examining to the factual matrix herein, there is nothing to show that the expenses claimed as deduction were incurred for earning interest income. Equally, the claim of the appellant that the expenditure incurred by the assessee was allowable under Sections 30 to 37 of the Act is inadmissible for the reason that the business of the assessee was lying closed and income from interest was chargeable to tax as 'income from other sources' under Section 56 of the Act. Once that was so, the Tribunal had rightly adjudicated the matter in favour of the revenue. 15. Accordingly, no question of law muchless a substantial question of law arises in these appeals. Consequently, the appeals are dismissed.
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2012 (8) TMI 1177 - ITAT RAJKOT
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... ... ..... s noted by the AO. Considering all these facts, we are of the considered opinion that in the interest of justice, one more opportunity should be provided to the assessee to comply with the requirements of the authorities below. Therefore, we set aside the order of the ld. CIT(A) and restore back the issue to the file of the AO for afresh decision. The assessee should produce the loan creditors before the AO as required by the AO. The assessee should also produce the documentary evidence regarding repayment of the loan in the subsequent period. The assessee will also produce the evidences about identity and the creditworthiness of the loan creditors as well as the genuineness of transactions and thereafter, the AO will pass an order as per law after providing a reasonable opportunity of being heard to the assessee. 8. In the result, the assessee’s appeal stands allowed for statistical purposes. This order is pronounced in the open Court on the date mentioned hereinabove.
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2012 (8) TMI 1176 - DELHI HIGH COURT
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... ... ..... years after they were sought. In the present case, however, the assessee filed his response to the notice under Section 148 on 10.4.2009. The record further reveals that the reasons recorded for reopening were made available to the assessee company on 31.9.2009. The reassessment order was made on 15.12.2009, and it is clear from the same that the assessee had adequate notice of the “reasons recorded”, and had presented objections against it. It is clear that the opportunity that was conceived in G.K.N. Driveshafts to be given to assessees before reassessment was satisfactorily accorded to the assessee in the present case. Hence, there was no shortcomings in the reassessment proceedings. 10. For the above reasons this Court is of the opinion that the Tribunal’s order cannot be sustained. The same is accordingly set aside. The matter is remanded back to the Tribunal, which shall consider assessee’s appeal on its merits and decide in accordance with law.
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2012 (8) TMI 1175 - ITAT MUMBAI
Deductions - Interest paid on borrowings - MAT - Peak load infringement charges - Sales tax incentive.
Interest paid on borrowings - HELD THAT:- Respectfully following the principles laid down in the Setabganj Sugar Mills Ltd vs. CIT [1960 (11) TMI 10 - SUPREME COURT] and by the Coordinate bench in assessee’s own case, we modify the order of the CIT (A) and allow the expenditure as revenue expenditure u/s 36(1)(iii). The amendment to the section wherein the borrowed funds are to be capitalized till the date on which such asset was put to use has come up with effect from 1.4.2004. As seen from the facts of the claim from the order of the CIT (A) all the borrowings are for the existing business, even though new advantages have been created. Therefore, the interest expenditure is allowable as revenue expenditure. Accordingly this ground is allowed.
Peak load infringement charges - HELD THAT:- What assessee has paid is additional charges for overdrawing the power sanctioned to it which the HPSEB has levied as peak load infringement charges. These are nothing but electricity charges but paid for additional drawal of power than the sanctioned load at that particular point of time. The amounts are compensatory in nature and not penalty for surcharge violation. The same cannot be disallowed by invoking Explanation to section 37(1). In view of this, we direct AO to allow the amount. Ground is allowed.
Sales tax incentive - power tariff freeze - Electricity duty - Road Transport subsidy as capital receipt - MAT - HELD THAT:- We are of the view that so far as the exclusion of these items from book profits under section 115JB is concerned, we find that even though there are Coordinate Bench decision in favour of assessee, this precedence no longer hold good law in view of the Special Bench decision of this Tribunal in the case of Rain Commodities [2010 (7) TMI 794 - ITAT HYDERABAD]. Respectfully following the Coordinate Bench decision in assessment year 1998- 99 which in turn followed the above Special Bench decision, we reject the grievance of assessee and uphold the stand of the authorities on this issue. The grounds are rejected.
Disallowance of interest on funds borrowed in connection with earning incomes exempt u/s 10(33) - HELD THAT:- Since the CIT (A) has considered the issue on facts wherein a finding has given that assessee has own funds to make investments, no disallowance is required on facts. Not only that the Hon'ble Supreme Court in the case of Munjal Sales Corporation vs. CIT & Another [2008 (2) TMI 19 - SUPREME COURT] held that when assessee had sufficient own funds and profits to provide interest free loans, the submission that loans to sister concerns were out of those funds has to be accepted. Similar view is also taken by the Hon'ble Bombay High Court in the case of CIT vs. Reliance Utilities & Power Ltd [2009 (1) TMI 4 - BOMBAY HIGH COURT]. Thus, we do not see any reason to interfere with the order of the CIT (A). Accordingly Revenue ground is rejected.
In the result, Revenue appeal is dismissed.
In the result assessee’s appeal is partly allowed and Revenue appeal is rejected.
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