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Showing 41 to 60 of 1749 Records
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2015 (9) TMI 1719 - DELHI HIGH COURT
Addition on account of investment written off - HELD THAT:- Notice is confined to issue A.
Addition on account of notional interest income - HELD THAT:- Issue covered in favour of the Assessee by the judgment of this Court in CIT v. Oriental Insurance Company Ltd. [2002 (9) TMI 44 - DELHI HIGH COURT]. Consequently, no question is framed.
Disallowance u/s 14A - disallowance on account of guest house expenses - HELD THAT:- Issues stands covered by the order of the ITAT in the Assessee’s own case for AYs 2000-01 and 2001-02 which has not been appealed against by the Revenue. Consequently, the Court declines to frame the said questions as well.
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2015 (9) TMI 1718 - BOMBAY HIGH COURT
Dividend income as exempt u/s.10 (34) - dividend income is considered as part of Income of the life Insurance Business and is included as an income by actuary - HELD THAT:- We find that the impugned order of the ITAT has allowed the respondent-assessee's appeal by following the decision of this Court in General Insurance Corporation of India vs. Deputy Commissioner of Income Tax & anr [2011 (12) TMI 70 - BOMBAY HIGH COURT] and its own decision in the case of ICICI Prudential Insurance [2012 (11) TMI 13 - ITAT MUMBAI]
Revenue very fairly states that the revenue's appeal on this issue from the order of ITAT in ICICI Prudential Insurance Co.Ltd (supra) to this Court [2015 (7) TMI 972 - BOMBAY HIGH COURT] in view of the above, question (A) does not raise any substantial question of law and accordingly dismissed.
Whether negative reserve has an impact of reducing the taxable surplus as per Form-I and therefore, corresponding adjustment for negative reserve need to be made to arrive at taxable surplus? - HELD THAT:- The issue stands covered in favour of the respondent-assessee by the decision of the Apex Court in LIC of India [1963 (12) TMI 5 - SUPREME COURT] wherein it has inter alia been held that the Assessing Officer had no power to modify its accounts after Actuarial valuation is done. Accordingly, question (B) also does not give rise to any substantial question of law. Hence, dismissed.
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2015 (9) TMI 1717 - ITAT MUMBAI
Assessment of trust - “Principle of mutuality" - amount had received as non-occupancy charges by the society from members and not from the occupants - “principle of mutuality‟ to the non-occupancy charges received by the cooperative housing society - HELD THAT:- Similar issue was adjudicated by the Tribunal in the assessee‟s own case for the AY 2003-2004 - After hearing both the parties and on perusal of the said order of the Tribunal (supra), find vide paras 17 and 18, the assessee was given relief on account of non-occupancy charges received by the assessee in that AY 2003-04. Considering the commonality of the issue and binding nature of the coordinate Bench decision, ground no.1 raised by the Revenue is dismissed and to that extent the order of the CIT (A) is fair and reasonable and it does not call for any interference.
“Principle of mutuality" to the interest amount received from the bank on the FDs - HELD THAT:- Heard both the parties and perused the orders of the Revenue Authorities as well as the cited judgment of the Hon‟ble Supreme Court in the case of Bangalore Club [2013 (1) TMI 343 - SUPREME COURT] - On perusal of the said judgment of the Apex Court, we find that the said judgment is relevant in this regard, wherein it was held that “The principle of mutuality relates to the notion that a person cannot make a profit from himself. The concept of mutuality has been extended to defined groups of people who contribute to a common fund, controlled by the group, for a common benefit. Any amount surplus to that needed to pursue the common purpose is said to be simply an increase of the common fund and as such neither considered income nor taxable”. Applying the above ratio to the factual matrix of the present case, there is no dispute on the fact of receiving interest from the “Bank of India‟ and the said “bank is not a member of the club’, so that the “principle of mutuality‟ does not apply. Therefore, considering the same, the decision taken by the CIT (A) in this regard requires to be reversed - Ground no.2 raised by the Revenue is allowed.
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2015 (9) TMI 1716 - KARNATAKA HIGH COURT
Deduction u/s 80 P (2) (a) (i) - AO denied deduction as activity of the respondent was covered by Section 2 (24 (vii a) of the IT Act, which requires the inclusion of profits and gains of any business of banking (including providing credit facilities) carried on by a co- operative society - Whether the benefit of deduction, under Section 80 P (2) (a) (i) of the IT Act, could be denied to the assessee on the footing that, though the respondent was said to be a Co- operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act.? - whether Authorities under the IT Act were competent and possessed the jurisdiction to resolve the controversy as to whether the assessee was a co-operative society or co-operative bank, as defined under the provisions of the BR Act? - HELD THAT:- We are in respectful agreement with the general view taken as to the interpretation of the relevant provisions of law, by the co-ordinate bench of this court, in the above and several other judgments adopting the same view. However, it is to be noticed that there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act. Any opinion expressed therefore is tentative and is not final. The view expressed by this court, however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) of the IT Act, shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India. - Decided in favour of assessee.
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2015 (9) TMI 1715 - SUPREME COURT
Withdrawal of an admission made, by a defendant in a suit for partition, in the written statement after a pretty long period - HELD THAT:- The principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible Under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions.
The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected - However in the facts and circumstances of the case, the Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement - appeal allowed in part.
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2015 (9) TMI 1714 - MADRAS HIGH COURT
Seeking grant of anticipatory bail - transfer of investments made or not - offences under Sections 406, 420 and 120B of the Indian Penal Code read with Section 5 of the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 - HELD THAT:- Since the application for convening a meeting of the debenture holders for considering a scheme of arrangement was filed on 19.9.2013 and also since the police registered the first information report on 21.10.2013, the Company Court, even while ordering the convening of the meeting, granted protective orders preventing the police from arresting the petitioner herein, with the object of seeing as to whether the debenture holders were with the petitioner herein or not. Eventually, the report of the Chairman of the meeting of the debenture holders indicated that more than 93% of the debenture holders supported the scheme of arrangement - A group of debenture holders also filed objections. After considering those objections, the Company Court passed an order dated 30.4.2014 in C.P.No.15 of 2014 sanctioning the scheme of arrangement.
All other accused (except the petitioner herein) were granted bail (or anticipatory bail in the case of one) on account of the fundamental fact that the petitioner herein is the kingpin. Both in the scheme of arrangement in C.P.No.15 of 2014 as well as before the Criminal Court, the petitioner herein has made an unequivocal statement that he alone is responsible for repayment of the dues to the debenture holders. Therefore, the case of the petitioner herein cannot be treated on the same footing as the case of the other accused, who were let off on bail (anticipatory bail).
The Scheme sanctioned by this Court in C.P.No.15 of 2014 is also not working out as per the time schedule - Petition dismissed.
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2015 (9) TMI 1713 - MADHYA PRADESH HIGH COURT
Deduction u/s 11 – violation of section 13(1)(d) - interest free loan to another society - HELD THAT:- Considering the fact that the issue raised in these appeals is already considered by the Delhi High Court in the case of Director of Income-Tax (Exemption) v. Acme Educational Society, [2010 (7) TMI 159 - DELHI HIGH COURT] and another decision of Division Bench of our High Court in the case of Commissioner of Income-tax, Bhopal v. Maa Vaishnav Education Society, [2013 (7) TMI 225 - MADHYA PRADESH HIGH COURT], both the appeals are disposed of on the same terms.
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2015 (9) TMI 1712 - DELHI HIGH COURT
Expenditure incurred on account of non-compete fee paid to sellers of bottling business - revenue or capital expenditure - depreciation on the non-compete fee expenditure - Whether expenditure incurred towards ice boxes and dealer sign boards provided to hawkers/ dealers, carrying the brand name of the appellant, was capital in nature? - HELD THAT:- Appeal admitted for substantial question of law. Liberty is granted to the parties to file all the relevant documents which form part of the record of the case before the Assessing Officer, the CIT (A) and ITAT.
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2015 (9) TMI 1711 - PUNJAB AND HARYANA HIGH COURT
Summon Order as additional accused to face trial in FIR, even if not named in FIR - HELD THAT:- The complainant - Tara Chand while appearing as PW-1 has mentioned the names of the petitioners, who have caused injuries to his son Sonu with kick and fist blows. He has stated that Sonu was in love with Suman and the accused Rajender, Ram Piari, Ravi, Ravinder and Suman did not like this. Thus, there are specific allegations against the petitioners not only in the FIR but in the statement of the complainant as well.
In the case of HARDEEP SINGH, MANJIT PAL SINGH, BABUBHAI BHIMABHAI BOKHIRIA, RAJENDRA SHARMA, RAVINDER KUMAR, TEJ PAL, JUNED PAHALWAN, RAJESH @ SANJAI, RAMDHAN MALI, TEJ SINGH VERSUS STATE OF PUNJAB, STATE OF GUJARAT, STATE OF M.P., STATE OF HARYANA, STATE OF U.P., STATE OF RAJASTHAN. [2014 (1) TMI 1878 - SUPREME COURT], Hon'ble Supreme Court has held that a person can be summoned, as an additional accused, even if he is not named in the FIR or if named in the FIR but not chargesheeted or even if he has been discharged.
The trial Court while taking into consideration the evidence on record, has rightly summoned the petitioners as additional accused, to face trial along with other co-accused - The present petition, being devoid of any merit, is dismissed.
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2015 (9) TMI 1710 - PUNJAB AND HARYANA HIGH COURT
Seeking winding of the respondent-company - inability to pay the admitted debt - HELD THAT:- It is evident that now the stand is that the respondent-company is to recover a sum of ₹ 53,648/- from the petitioner-company, whereas in reply to the notice, the claim was to the tune of ₹ 11,07,297/-. It is further relevant to add here that in reply to the petition, the story that settlement between the parties had taken place in May, 2008 regarding rebate on the invoice value is merely an after thought just to defeat the petition, as no such plea was taken when reply to the statutory notice was given in September, 2008.
The defence raised by the respondent-company is not reasonable as the debt cannot be said to be disputed, which has not been paid despite statutory notice and even pendency of the present petition in this court for a period of about six years. Hence, the petition deserves to be admitted - Adjourned to February 16, 2016.
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2015 (9) TMI 1709 - ITAT CHANDIGARH
Exemption u/s 11 - disallowance made on account of vehicle running expenses and depreciation of car in terms of Section 13(2)(b) - CIT-A deleted the additions - HELD THAT:- AO has not brought any material on record as to how he has given his finding that the cars have been purchased for the benefit of the Chairman. AO was also not justified in holding that the assessee trust has no requirement to maintain luxury car. The expenses should be considered from the point of view of the assessee and not for the point of view of the AO.
In the absence of any material brought on record against the assessee, the order of the AO could not be sustained. Further, it is not in dispute that Shri Anoop Garg, Chairman is looking after the activities of the assessee trust whole time and has to visit various Government Departments in connection with the activities of the assessee trust. No incriminating material was found during the course of search if the Chairman has used the cars for personal purposes. Therefore, it appears that addition has been made wholly on adhoc basis which could not be sustained in law - The findings of the Assessing Officer have no basis what-so-ever, therefore, ld. CIT(Appeals) was justified in deleting the addition - Decided against revenue.
Addition on account of discrepancies in two set of trial balances found at the time of search - HELD THAT:- The assessee has given complete details of complete trial balances and incomplete trial balances and the remarks and the reasons for difference in the figure. These figures have been reconciled and is supported by all the entries made in the books of account. The difference in both the trial balances was thus, due to certain missing entries which have been even reconciled before us during the course of arguments. When all these reconciliations were submitted to the AO for his comments, the explanation of the assessee was not rebutted by the AO in any manner. CIT(Appeals) on the basis of material on record, was rightly satisfied with reconciliation done between incomplete trial balance and complete trial balance. Thus, ld. DR failed to point out any error in order of ld. CIT(Appeals) in deleting the addition.
When assessee prepared the balance sheet on the basis of complete data available in the trial balances, the figure came to more as compared to the lesser figure taken by the Assessing Officer from the incomplete trial balance. Therefore, this itself would show that there were no basis what-so-ever for making addition against the assessee. It was merely a mistake in not making certain entries in incomplete trial balance, thus could not be termed as undisclosed income of the assessee. The ld. CIT(Appeals) on proper appreciation of facts and reconciliation statement filed before him, was justified in deleting the addition.
Addition of salary paid to Chairman u/s 13(2)(b)(c) - amount so paid to the Chairman was excess of what may be reasonably paid for such services - HELD THAT:- It is not in dispute that the Chairman has rendered services to the assessee trust/institution on whole time basis. The assessee trust maintained three institutions, one at Moga and two at Panchkula. Therefore, Chairman shall have to visit these distant places and has also to visit several government organizations in connection with the activities of the assessee trust.
When the salary to the Chairman is paid less than ₹ 84,000/- per month in assessment year 2006-07, it could not be said to be unreasonable. In those years, even the persons in Govt. managerial capacity would be getting salary more than ₹ 85,000/- per month. The Assessing Officer has not brought any evidence of comparable institution to show that any excess salary has been paid to the Chairman. In the absence of any adequate evidence or material on record, particularly when during the course of search, admittedly no incriminating material was found regarding excess salary paid to the Chairman, addition is wholly unjustified. Therefore, we do not subscribe to the views of the authorities below in making and sustaining the addition. We, therefore, set aside the orders of authorities below and delete the addition.
Addition based upon the rough notings in the diary seized during the course of search - HELD THAT:- No propriety in filing Department appeal on same issue in parts. The reasons for deletion of addition is same for which huge addition was deleted by ld. CIT(Appeals) and that too on the basis of comments received from the Assessing Officer during remand proceedings. DR during the course of arguments, have not been able to point out any infirmity in the order of ld. CIT(Appeals) in deleting the addition - On going through the material on record, we find that ld. CIT(Appeals) was justified in deleting the addition in respect of duplicate entries/double additions made by the Assessing Officer and part of the amount which was not recorded. From the above discussion in the light of the findings of the ld. CIT(Appeals), we do not find any justification to interfere with the order of ld. CIT(Appeals). The departmental appeal, thus, stands dismissed on ground Nos. 1 & 2.
Addition on the same issue based on rough notings in the seized diaries - HELD THAT:- The entries contained in the diary itself are not corroborated by any material or evidence on record. The ld. CIT(Appeals) also in his findings in column No. 5, as reproduced above, has mentioned that the students who have not taken admission during the year but maintained addition of ₹ 28,25,000/- on the reasons that the remand report mentioned specific dates with amount against the students. The findings of the authorities below are wholly unjustified because when the students whose names have been mentioned in column No. 5 as per the seized diary have admittedly not taken admission in the institution of the assessee trust, where is the question of those students in paying any amount by way of capitation fees or fee to the assessee trust. Therefore, there was no justification to make addition of such students who have not taken admission in the Institution of the assessee trust merely because their names were mentioned in the seized diary. The addition is liable to be deleted.
Addition in respect of the amount “out of the balance amount which have been recorded in the books.” - HELD THAT:- When the findings of the ld. CIT(Appeals) based on the remand report of the Assessing Officer says that the amount of ₹ 1.66 Cr has been recorded in the books of account of the assessee trust, where is a question of making addition against the assessee trust. The ld. CIT(Appeals), on the basis of the remand report noted that the dates appearing in the seized diary do not match with the ledger account, therefore, addition was made.
As is noted above, since seized diary was the estimated figures made by the Chairman Shri Anoop Garg, therefore, there is no question of matching the dates with the entries contained in the regular books of account maintained by the assessee. Since the diary was found from the possession of Shri Anoop Garg, therefore, it is probable that the same may be his personal notings which may not be directly connected with the assessee's affairs. It is not explained as to how the entries contained in the diary relate to the assessee trust. The entries contained in the diary relates to four types of entries of the fees on which substantially the ld. CIT(Appeals) deleted the addition and others also liable to be deleted. The assessee also filed affidavit of some of the students before the authorities below stating that they have not paid any amount as mentioned in the diary to the assessee trust but none of the deponents have been examined by the authorities below. Whatever NRI students were admitted, their fees was found recorded in the books of account. Since some of the students were not admitted, the authorities below were not justified in adding the amount against their names whose names were mentioned in the diary. If the dates of the fees recorded in the books of account do not match with the diary, the authorities below failed to explain as to from where the assessee has received the fees and how they have been recorded in the books of account.
Therefore, the amounts, even if do not match with the seized diary, when have been recorded in the regular books of account even prior to the search, there was no justification for the authorities below to make the addition of ₹ 1,66,40,072/-. Similarly, the students who have not admitted to the assessee trust, there is no question of receipt of fees of ₹ 28,25,000/- from them, therefore, addition of ₹ 28,25,000/- was wholly unjustified. For the sake of argument, even if it is believed that Shri Anoop Garg has received any alleged amount but there is no evidence on record to prove that Shri Anoop Garg has handed over the alleged amount to the assessee trust.
The amount of ₹ 75.80 lacs, once accepted by Shri Anoop Garg of his own, therefore, same can not come to the assessee in any manner and therefore, the balance amount of ₹ 80.48 Cr in the hands of the assessee in respect of column No. 7 which is balance amount left, which is the estimation by Shri Anoop Garg, could not be added in the hands of the assessment trust. This amount could only be considered in the case of Shri Anoop Garg, Chairman of the assessee trust and sine surrendered amount of ₹ 75.80 lacs has already been made in the case of Chairman and his appeals have been dismissed separately, there was no justification to make double addition of ₹ 80.48 lacs in the hands of the assessee trust.
Addition u/s 68 - HELD THAT:- There is no mention of any date against these names. Even no name of assessee is mentioned in seized paper. The statement of the Chairman Shri Anoop Garg was recorded in which also he has not made any allegation against assessee trust of taking any loan or passing the same loan to the assessee trust. There are no entries of the said loans recorded in the books of account of the assessee. The addition under section 68 of the Act could be made if any sum is found credited in the books of account of the assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not in the opinion of the Assessing Officer as satisfactory, the sum so credited could be charged to income tax as income of the assessee of that previous year. Since there is no sum found credited in the books of account of the assessee in assessment year under appeal and no reliable evidence was found during the course of search, that these were genuine loans taken by assessee in assessment year under appeal, no addition could be made with the help of Section 68 of the Act of the rest of amount.
In the case of the assessee also in the seized paper in the names of other persons, only 3, 5, 15, 15, 7 and 36 are mentioned. It would not indicate whether these are in rupees or in lacs. No material is produced before us to support findings of the authorities below. Considering the above discussion, we are of the view that authorities below were wholly unjustified in making and sustaining the addition of the authorities below are, therefore, set aside and the entire addition is deleted.
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2015 (9) TMI 1708 - SC ORDER
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Since the tax effect involved in the instant appeal is negligible, the appeal is dismissed on this ground alone.
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2015 (9) TMI 1707 - SUPREME COURT
Ownership over the suit schedule property by inheritance - HELD THAT:- Once the High Court recorded a finding that the property was vacant as on the date of the filing of the suit there was no question of the Plaintiffs claiming settled possession of the said property assuming the view taken in JOHN B. JAMES AND ORS. VERSUS BANGALORE DEVELOPMENT AUTHORITY AND ORS. [2000 (8) TMI 1139 - KARNATAKA HIGH COURT] was otherwise legally sound since the so called settled possession of the Appellants in RFA No. 911 of 2002 stood vacated from the suit schedule property, no prayer for injunction as set out in the petition filed by the Appellants in those appeals could help them for an injunction issues only to protect what is in lawful possession of the Plaintiffs. Injunction could not be claimed when Plaintiffs stand dispossessed from the suit property prior to the filing of the suit. The question of establishing settled possession did not, therefore, arise in relation to the properties that already stood cleared of any structures by demolition of whatever stood on the same. The High Court was, in that view, justified in setting aside the decree passed by the Trial Court and dismissing the suit filed by the Plaintiffs.
The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which are referred. All that the High Court has found in favour of the Plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the Plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the Appellant-BDA. The fact that the Plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation of property that stood vested in the BDA.
Appeal dismissed.
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2015 (9) TMI 1706 - ANDHRA PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - requirement to make vicariously liable - Section 138 of N.I. Act - how a Director of a company who stands in a different footing to the Managing Director by his status liable or to be made liable for the offences punishable under Section 138 of the N.I. Act? - HELD THAT:- Here a perusal of the very complaint relevant portion extracted supra, but for a bald statement, there is no material averment as to how A-3 to A-5 are liable. It is not even the case from perusal of the cheque of any of them are signatories, along with A-2 on behalf of A-1 entity. The mere serving of notice and their silence even with no reply, no way make them liable thereby, but for to draw adverse inference so far as A-1 and A-2 concerned as to but for no defence they could have replied.
Now, coming to A-1 Company and A-2 Managing Director concerned as discussed supra, along with A-1 by virtue of the status apart from A-2 is signatory to the cheque issued not in dispute is liable. It is needless to say as per Rangappa supra, the burden is on the accused under reverse onus clause from the cheque routed from the account of the accused No. 1 company signed by A-2 on behalf of the A-1 that too there are transactions. Thus, it is for the accused to discharge to rebut the presumption by entering the defence as to how the amount covered by the cheque is not legally enforceable debt or other liability. The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability - The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability.
Petition allowed.
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2015 (9) TMI 1705 - DELHI HIGH COURT
Validity of Award of the Arbitrator - award passed with respect to disputes which had arisen between the petitioner/DSIDC/owner and the respondent/contractor with respect to contract dated 21.4.1995 for construction of Co-Ed. Polytechnic at Rohini, Delhi for the petitioner - HELD THAT:- The net position which will emerge is that the amount of ₹ 1,09,08,393/- will be reduced on account of reduction of the amount of ₹ 1,05,402/- (sub-claim no.3 of Claim no.10), and an amount of ₹ 1,35,223/- on account of rejection of Claim no.12 for this amount which was allowed by the Arbitrator and is rejected by this Court, the amount under Claim no.16 as awarded will stand reduced from a sum of ₹ 1,22,808/- to ₹ 72,000/-, ₹ 2 lacs on account of rejection of Claim no.20 as allowed by the Arbitrator, and proportionate reduction of Claim no.27, and ₹ 6,00,000/- awarded under Claim no.26. All these amounts are to be reduced from the amount of ₹ 1,09,08,393/- as awarded by the Arbitrator as this Court has accepted the objections of the petitioner herein by rejecting the said claims awarded by the Arbitrator. Also the amount under Claim no.11 as awarded will stand reduced from a sum of ₹ 7,48,871/- to ₹ 683,428. Claim no.27 being the claim of interest on the awarded amount will also now get proportionately reduced.
Thus, on account of acceptance of some of the objections of the petitioner, the figure of the awarded amount of ₹ 1,09,08,393/- will stand reduced by ₹ 11,56,876/- and hence the net awarded amount to the respondent will come to ₹ 97,51,517/-. On this amount respondent will be entitled to interest at 12% per annum from the date of the Award till the date of actual payment by the petitioner - the objection petition is allowed to the limited extent by reducing the net awarded amount to the respondent herein and against the petitioner to a sum of ₹ 97,51,517/- alongwith interest at 12% per annum simple from the date of the Award viz. 21.3.2006 till the date of payment of this amount by the petitioner to the respondent herein.
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2015 (9) TMI 1704 - ITAT MUMBAI
Interest expenditure disallowance - HELD THAT:- We find that the Tribunal in the case of Eminent Holdings [2014 (7) TMI 466 - ITAT MUMBAI] have followed the decision of the Tribunal given in common group case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI]and restored the matter to the file of the Ld. CIT(A) for fresh adjudication
We restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee. Before closing this issue, the Ld. Counsel for the assessee pointed out that the Ld. CIT(A) has held that the issue of interest expenditure is pending before the Hon'ble Special Court. It is the say of the Ld. Counsel that the proceedings in which the said issue of interest was issued by the custodian have been already concluded which fact has already been recorded by the Ld. CIT(A) in the impugned order. We, therefore, direct the Ld. CIT(A) to consider this fact while deciding the issue afresh.
Levy of interest u/s. 234A, 234B and 234C - HELD THAT:- Identical issue was decided in the cases of Topaz Holdings Pvt. Ltd. [2014 (6) TMI 998 - ITAT MUMBAI] and Eminent Holdings Pvt. Ltd. [2014 (7) TMI 466 - ITAT MUMBAI] that the Tribunal had upheld the levy of interest in principal, that it had set aside the issue for calculating the interest to the file of the AO with direction that the tax deducted as source should be reduced while calculating the interest.Respectfully, following the above order we restore back the issue to the file of the AO who would levy the interest as per the provisions of section 234 of the Act and give credit for the TDS amounts.
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2015 (9) TMI 1703 - ITAT MUMBAI
Revision u/s 263 - HELD THAT:- We find that the order of the CIT made u/s. 263 of the Act was appealed by the assessee before the Tribunal and the Tribunal2014 (12) TMI 1370 - ITAT MUMBAI] has held the revision proceedings infirm and illegal and consequentially restored the regular assessment dated 31.10.2009.
“Sublato fundamento cadit opus” meaning thereby that in case the foundation is removed,super structure falls. In the present case also the foundation i.e. order made u/s. 263 has been removed by the Tribunal in ITA No.23/Mum/2012, hence the structure i.e. the assessment made u/s. 143(3) r.w.s 263 of the Act falls. Hence, the appeal filed by the assessee becomes otiose.
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2015 (9) TMI 1702 - SUPREME COURT
Recall of witnesses, at the stage when statement of accused Under Section 313 of the Code of Criminal Procedure has been recorded - plea is that the defence counsel was not competent and had not effectively cross-examined the witnesses - HELD THAT:- Inspite of the High Court not having found any fault in the conduct of the proceedings, it held that "although recalling of all the prosecution witnesses is not necessary" recall of certain witnesses was necessary for the reasons given in para 15(a) to (xx) on the application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is only he who would suffer - It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power Under Section 311 Code of Criminal Procedure is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice.
Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there are no ground to justify the recall of witnesses already examined.
The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination - appeal allowed.
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2015 (9) TMI 1701 - ITAT HYDERABAD
TP Adjustment - selection of MAM - TNNM OR RPM - HELD THAT:- On perusal of the order of the Tribunal, we find that the assessee had entered into international transactions for purchase of medical equipments and there was no dispute with regard to the method adopted by the assessee during its TP study. Such being the case, there is no reason as to why the assessee should not be allowed to adopt the same method even during the relevant A.Y.
On perusal of the TPO order, we find that the TPO has reproduced the parameters to be taken into consideration for adopting the RPM for comparability analysis, but except stating that the RPM method can be adopted only where the products are closely comparable, he has not given detailed reasoning as to why the said method is not applicable to the assessee. We find that the TPO has not brought on record any evidence as to how the products sold by the comparable companies are not similar to the products sold by the assessee herein. When the TPO desires to reject the method consistently being followed by the assessee and desires to adopt a different method, the TPO is required to give his reasoning which is absent in the case before us.
We deem it fit and proper to remand the issue to the file of the TPO for determination of the most appropriate method for determination of the ALP. Further we direct that if the TPO holds that the RPM is to be adopted as the most appropriate method, then the TPO shall also take into consideration the comparable companies selected by the assessee in addition to the companies selected by him for determination of the ALP.- Ground of assessee is treated as allowed for statistical purposes.
TDS u/s 194C - contribution towards sponsorships - HELD THAT:- The assessee relying upon Board Answer to Q. No.1 to lay stress on his argument that only if a payment is made to an advertising agency, the TDS provision of section 194C is applicable. However, we find that the Question Nos. 18 and 19 and answers to these questions are relevant to the case before us. In the case before us, as stated in the earlier paragraphs of this order, we find that the assessee had advertised itself by display of banners etc., during the seminars etc, sponsored by it. Therefore, the provision of section 194C is fairly applicable to the case before us. In view of the same, we uphold the findings of both the authorities below on this issue.
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2015 (9) TMI 1700 - GUJARAT HIGH COURT
Condonation of delay in filing appeal before the AAIFR - power of appellate authority to condone the delay - It was submitted that the period of 60 days expired on or around 15th September, 2013 and the appeal was affirmed on 18th January, 2014 and was actually filed 27th January, 2014 which was clearly beyond the period of 60 days - HELD THAT:- The order of BIFR was dated 17th July, 2013. Considering the maximum period of 60 days available under the aforesaid provisions, the appeal was required to be filed as per the submission on behalf of the petitioner latest by 15th September, 2013. The appeal was however filed on 27th January, 2014. It is stated by the petitioner that the appeal memo was affirmed on 18th January, 2014 and the appeal was filed thereafter on 27th January, 2014. The period prescribed in Section 25 being a period of 45 days extendable upto 60 days, is a special period of limitation and therefore, the contention was that the same was not further extendable or the delay was not condonable and the appeal was preferred after the expiry of the said period.
The impugned order passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi cannot sustain, for the only consideration that it does not contain reasons and does not deal with the various contentions of the parties and findings after considering all those contentions including the aspect of limitation raised by the petitioner. On the said ground alone, the same is deserved to be set aside and it is hereby set aside -
The proceedings of appeal are remanded to the appellate authority for rendering a fresh decision by it in accordance with law. While undertaking the exercise of deciding the appeal anew, and passing a reasoned order thereupon, the AAIFR shall give due opportunity of hearing to both the sides - Petition allowed by way of remand.
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