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Showing 61 to 80 of 2344 Records
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2018 (7) TMI 2286 - ITAT DELHI
Assessment order on a non existing entity - Deemed dividend u/s 2(22)(e) - Scheme of amalgamation approved - HELD THAT:- It is pertinent to note that the Revenue was very well informed by the assessee about the non existence of the entity. Thus, the appeal is not maintainable in respect of the non-existing entity. Therefore, Revenue’s appeal is dismissed.
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2018 (7) TMI 2285 - SC ORDER
Reduction of Share Capital - affidavit dated 18.9.2017 of the Respondent No.3 was not considered by the Tribunal - HELD THAT:- There are no reason to interfere with the impugned judgment. Admission is refused and the civil appeal is, accordingly, dismissed.
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2018 (7) TMI 2284 - DELHI HIGH COURT
Mis-declaration of goods - importation of polished marble slabs of 1192.3 sqm. - Confiscation - redemption fine - penalty - HELD THAT:- This Court is of the opinion that the Additional Commissioner of Customs should pass a complete order with respect to the balance quantity in dispute i.e. Rs.11,90,161/-. The appropriate orders shall be made by the Additional Commissioner of Customs, in the circumstances, with respect to the said quantity of Rs.11,90,161/- within two weeks from today.
In case the petitioner has declared the correct value and paid the duty, in such an event, subject to its paying the penalty of Rs.1,20,000/-, the goods should be released.
Petition allowed.
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2018 (7) TMI 2283 - DELHI HIGH COURT
Dishonor of Cheque - insufficient funds - parties entered into a settlement on two occasions but the appellants did not comply with the terms of settlement - HELD THAT:- In the present case, the appellants (defendants in the suit) were duly served with the summons for judgments and admittedly the appellant did not file the leave to defend within the prescribed period of ten days. Surprisingly, the Joint Registrar, without any application on behalf of the appellants granted further time beyond ten days prescribed to the defendants to file leave to defend by an order dated 15.11.2016. When the matter was listed on 28.11.2016, it was noticed that leave to defend had not been filed. No time was extended and thereafter the matter was adjourned from time to time to enable the parties to resolve the matter.
The provisions of the Order XXXVII of the Code are no doubt extremely stringent. The same are to be followed strictly, as the suits falling in this Chapter, as the heading suggests, are Summary suits, based on a written contract or dishonour of cheque etc.
It may be noted that the parties entered into a settlement on two occasions but the appellants did not comply with the terms of settlement. The matter was listed before the Single Judge on 10.1.2018, when the same was adjourned at the request of the counsel for the appellants, it was made clear that no adjournment would be granted on the next date. Despite an express direction having been given, no steps were taken by the counsel of the appellants to ensure that the applications were placed on record.
Sequence of events narrated hereinabove would show the conduct of the appellants as to how the appellants have succeeded in delaying the matter, which is evident from the facts that the appellants did not fulfil their financial liability; the cheques issued by the appellants to secure the loan were dishonoured; the appellants thereafter entered into an amicable settlement with the respondent and offered to pay Rs.3,22,02,660/- along with pendente lite interest and future interest at the rate of 24%, per annum; deed of compromise was executed and again post-dated cheque was handed over by the appellant to the respondent, which was also dishonoured due to insufficient funds. Since the settlement was not honoured by the appellants, the respondent was forced to file a suit under the provisions of Order XXXVII of the Code. In the suit, the appellants again entered into a settlement with the respondent vide Compromise/Settlement deed dated 23.12.2016, and agreed to pay the sum of Rs.2,38,61,907/- by way of two post-dated cheques, which cheques were also dishonoured on account of insufficient funds.
There are no infirmity with the view taken by the Single Judge that in the absence of leave to defend objection, with regard to jurisdiction and the plaintiff being a money lender, could not have been considered - once the appellant had entered into a settlement with the plaintiff and no plea of jurisdiction was raised at that point of time, the appellant cannot be allowed to raise the same at this stage.
Appeal dismissed.
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2018 (7) TMI 2282 - KARNATAKA HIGH COURT
TP Adjustment - excluding the comparables such Kals Information Systems Ltd and Bodhtree Consulting Ltd - HELD THAT:- KALS Information Systems Ltd. and Bodhtree Consulting Ltd. are functionally dissimilar to that of the assessee and hence it is not to be regarded as a comparable. See M/S. CISCO SYSTEMS (INDIA) PRIVATE LTD.[2014 (11) TMI 849 - ITAT BANGALORE]
Nature of expenses - software expenses - revenue or capital expenditure - HELD THAT:- This Court in the case of Commissioner of Income Tax vs. IBM India Ltd.,[2013 (10) TMI 1225 - KARNATAKA HIGH COURT] and answered the substantial question of law in favour of the Assessee and against the Revenue, treating the software expenses as revenue expenditure.
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2018 (7) TMI 2281 - ITAT AHMEDABAD
Deduction u/s 80P(2)(a)(i) and 80P(2)(d) - whether interest income earned on fixed deposits with the nationalized bank and cooperative bank would qualify for deduction u/s 80P(2)(a)(i) and 80P(2)(d)? - HELD THAT:- The issue in dispute is squarely covered against the assessee by the decision of State Bank of India Vs. CIT [2016 (7) TMI 516 - GUJARAT HIGH COURT] wherein Hon'ble Court held that interest earned from the investment made in any bank is not deductible u/s 80P(2)(a)(i) - we dismiss the appeal of the assessee. We direct the AO to exclude the amount of net interest income from the deduction claimed u/s 80P(2)(a)(i) - AO will allow the expenses incurred by the assessee in the earning of such interest income not eligible for deduction u/s 80P(2)(a)(i).
Similarly we also note that the income earned by the assessee on the investment made with the any other cooperative society will be eligible for the deduction u/s 80P(2)(d).
We direct the AO to exclude the amount of net interest income from the deduction claimed u/s 80P(2)(a)(i) - Thus the AO will allow the expenses incurred by the assessee in the earning of such interest income not eligible for deduction under section 80P(2)(a)(i) - we also direct the AO to allow the deduction to the assessee for the amount of interest earned from the co-operative bank u/s 80P(2)(d). Hence, grounds of appeal filed by the assessee are allowed for statistical purposes.
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2018 (7) TMI 2280 - ITAT CHANDIGARH
Exemption u/s 11 - Cancellation of Registration u/s 12A - Assessee given donations to various organizations - HELD THAT:- The assessee admittedly has given donations to various organizations as reproduced in earlier part of out order. When asked to show during proceedings before the Ld. Commissioner of Income Tax as to how they were actually utilized by the donee societies/institutions, nothing was shown by the assessee. The assessee has, therefore, neither established the user of the donations for charitable purposes, nor demonstrated that the said donee society was a charitable society registered u/s 12A - Meaning thereby that the assessee society has not demonstrated the application` of its funds for charitable purposes. The assessee, therefore, is not entitled to claim the donations as application of its income.
We agree with the CIT that the assessee is indulging in the activity of giving donations to other institutions which is not in consonance with the approved objects of the assessee society. We, therefore, uphold the action of Commissioner of Income Tax in cancelling the registration granted u/s 12A of the Act by invoking the provisions of section 12AA(3) of the Act. - Decided against assessee.
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2018 (7) TMI 2279 - KARNATAKA HIGH COURT
Addition u/s 68 - unexplained bank deposit - HELD THAT:- Misplaced apprehension of the Assessing Authority that since confirmations were in the same handwriting, therefore, they were not believable is a typical pro-revenue approach, without any foundation. The agriculturists most of whom might have been illiterates, could not have been expected to write their own confirmations to be produced before the Assessing Authority, but as the witnesses they could have been certainly summoned by the Assessing Authority for verifying the written confirmations given by them and it is only thereafter that the Assessing Authority could have confirmed the fact as to whether the written confirmations given by them were genuine or fake.
As far as the evidence collected through the Tahsildar under Section 133(6) of the Act is concerned also, we do not find that the said exparte evidence collected by the Assessing Authority has been confronted to the assessee or the Agriculturists in question. Thus, the whole process of enquiry conducted by the Assessing Authority in the present case does not have any foundational legs to stand upon.
Revenue authority even though bestowed with the job to collect revenue in accordance with law cannot act arbitrarily and on a mere guess work make the additions in the declared income of the assessee. The reasonable factual enquiry in the matter, only can give support to their findings of facts, which are the subject matter of further scrutiny by the appellate forums and also by the constitutional Courts.
The very foundation of assessment enquiry conducted by the Assessing Authority does not inspire any confidence in the present case and the entire assessment has to fall to the ground.
We are of the opinion that the first appellate authority after having looked into the evidence on record was justified in granting the relief to the assessee, but Tribunal without assigning any cogent reasons has taken a different view of the matter and has rendered a finding of fact, which is bad and perverse to that extent. The said finding, therefore, cannot be sustained and the order of the Tribunal, therefore, requires to be quashed and set aside. The substantial question is thus answered in the favour of assessee.
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2018 (7) TMI 2278 - DELHI HIGH COURT
Reopening of assessment u/s 147 - fresh or tangible material to initiate reopening - HELD THAT:- As in the absence of any fresh or tangible material outside of the existing record, the respondents could not have issued the re-assessment notice impugned in the present case. They cite Commissioner of Income Tax v. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] in support of the proposition that re-assessments to the extent that they are a revision of opinion, are impermissible.
The respondent submits that the re-assessment was necessitated, on account of the careful scrutiny of the profit and loss statement for the concerned year. As submitted that the AO had cogent reasons to believe that the income chargeable to tax had escaped assessment having regard to the fact that apparently no tax deductions were made in respect of the same payouts and that the original order did not express any opinion on the subject.
The decision in Kelvinator (supra) is conclusive. In order that an AO can belatedly reopen a concluded assessment –a scrutiny assessment u/s 143(3), as is the present case, there ought to exist “tangible material outside of the existing record” that may be in the form of information received directly or incidentally in the course of other collateral proceedings such as searches, seizure or even subsequent to other assessment year’s materials. None of these conditions, which trigger a valid re-assessment, exist on the record. The Revenue is clearly seeking to revisit the concluded issues in the pretext of stating that they were not either appreciated fully or not at all. Kelvinator (supra) is conclusive even on that aspect.
Thus the impugned re-assessment notice cannot be sustained.
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2018 (7) TMI 2277 - SC ORDER
Allocation of a sum of Rs. 10 Crores for payment to the affected employees for payment on account of various reasons such as marriage of daughters, ailment, old age disease, payment of loan etc. - HELD THAT:- In view of the action that has been taken by the State Government with respect to the employees of the various Corporations, nothing further is required to be done in the Petition.
SLP disposed off.
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2018 (7) TMI 2276 - ITAT BANGALORE
Disallowance u/s 40(a)(ia) - Scope of second proviso to Sec.40(a)(ia) - assessee submitted that the recipient of payment from the assessee has included the amount received from assessee in the return of income - scope of amendment to the provisions of section 201(1) and section 40(a)(ia) of the Act by Finance Act, 2012 w.e.f. 1.7.2012 and 1.4.2013 by insertion of first proviso and third proviso respectively - HELD THAT:- The Hon’ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (I) Pvt.Ltd., [2015 (9) TMI 79 - DELHI HIGH COURT] has taken the view that the insertion of the second proviso to Sec.40(a)(ia) of the Act is retrospective and will apply from 1.4.2005. Similar view has also been taken by the Hon’ble Calcutta High Court in the case of M/s.Tirupati Construction [2016 (8) TMI 1310 - CALCUTTA HIGH COURT]
Therefore the Assessee is entitled to the benefit of 2nd proviso to Sec.40(a)(ia) - Assessee has filed certificate as is necessary under the 2nd proviso to Sec.40(a)(ia) of the Act and the AO in the remand report after verification has not drawn any adverse inference against the claim of the Assessee. It is thus clear that the recipient of payment from the Assessee has filed return of income for the relevant previous year within time allowed u/s.139(1) and also included the sum received from the Assessee in their return of income. Since the recipients have included the receipts paid by the assessee in their respective returns of income and also paid taxes on the same, no disallowance u/s.40(a)(ia) of the Act should be made. In our view the CIT(A) was fully justified in allowing the relief to the Assessee.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As admitted factual position in the present case is that there was no dividend income or other exempt income earned by the assessee during the relevant previous year - thus no disallowance of expenses u/s 14A of the Act, if there is no exempt income earned during the relevant previous year - Seef M/s UB Infrastructure Projects Ltd. [2017 (12) TMI 1749 - ITAT BANGALORE] - Thus we are of the view that the disallowance of expenditure u/s 14A of the Act was rightly deleted by the CIT(A). We find no grounds to interfere with the order of the CIT(A).
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2018 (7) TMI 2275 - CALCUTTA HIGH COURT
Exemption u/s 11 - registration u/s 12A Cancelled - reason for which this cancellation order was passed was that the activities of the assessee-Trust were not genuine and were not being carried out in accordance with the objects of the Trust - HELD THAT:- As of now, the assessee’s registration under section 12A of the Act stands. The present appeal relates to assessment year 2010-11. AO has added the excess of income over expenditure for the purpose of taxing the same under the Act. In the assessment order, which was passed on 25th March, 2013, he has referred to the decision of the Income Tax Appellate Tribunal. The Appellate Tribunal restored the registration of the Trust. But he undertook this exercise of adding the income for taxing on the ground that the appeal against the Appellate Tribunal’s order was pending before this Court.
Fact remains, however, that prior to the date of the assessment order, the appeal of the revenue stood dismissed. There is no other pending appeal which has been brought to our notice at the time of hearing.
The assessee’s appeal before the Commissioner was allowed on the ground that the Tribunal had restored the registration. On the very same ground, the Tribunal sustained the assessee’s case in appeal preferred by the revenue. Now, the revenue has approached us again with this appeal.
The point of law involved in this appeal stands covered by the decision of the co-ordinate Bench in confirming the Tribunal’s decision restoring registration of the assessee.
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2018 (7) TMI 2274 - BOMBAY HIGH COURT
Compulsory retirement of the Petitioner - HELD THAT:- The challenge raised in the instant Petition in respect of the order directing compulsory retirement of the Petitioner need not be gone into and the Petitioner agrees for the aforesaid in view of the statement made on behalf of Respondent No.1 by Mr. Madhukar Khade, Administrative Officer (Establishment), to the effect that the departmental proceedings initiated against the Petitioner would not be proceeded further and the departmental enquiry proceedings would stand dropped in view of the order of compulsory retirement issued against the Petitioner.
Petition disposed off.
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2018 (7) TMI 2273 - SUPREME COURT
Pre- reference and pendente lite interest under the Arbitration Act, 1940 - supply of 1200 Metric Tons of Sodium Carboxyl Methyl Cellulose - parties ultimately went to arbitration in order to decide what should be the contract price for supply of 1200 MT of CMC - HELD THAT:- Section 31(7) of the Act, by using the words “unless otherwise agreed by the parties”, categorically specifies that the arbitrator is bound by the terms of the contract so far as award of interest from the date of cause of action to date of the award is concerned. Therefore, where the parties had agreed that no interest shall be payable, the Arbitral Tribunal cannot award interest - Section 31(7)(a) of the Act ought to have been read and interpreted by the Arbitral Tribunal before taking any decision with regard to awarding interest.
In STATE OF U.P. VERSUS HARISH CHANDRA & CO. [1998 (11) TMI 677 - SUPREME COURT] a different version of Clause 1.09 was considered. Having regard to the restrictive wording of that clause, this Court held that it did not bar award of interest on a claim for damages or a claim for payments for work done and which was not paid. This Court held that the said clause barred award of interest only on amounts which may be lying with the Government by way of security deposit/retention money or any other amount, refund of which was withheld by the Government - But in the present case, clause G1.09 is significantly different. It specifically provides that no interest shall be payable in respect of any money that may become due owing to any dispute, difference or misunderstanding between the Engineer-in-Charge and contractor or with respect to any delay on the part of the Engineer-in-Charge in making periodical or final payment or in respect of any other respect whatsoever. The bar under Clause G1.09 in this case being absolute, the decision in Harish Chandra will not assist the appellant in any manner.
In the present case, clause 16 of the General Conditions of Contract only speaks of any delay in payment not making ONGC liable for interest. There is nothing in this clause which refers even obliquely to the Arbitrator’s power to grant interest - Since interest is compensatory in nature and is parasitic upon a principal sum not having been paid in time, this Court has frowned upon clauses that bar the payment of interest. It has therefore evolved the test of strict construction of such clauses, and has gone on to state that unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the Arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest.
Thus, for pre-reference, pendent lite and future interest, ONGC is to pay the differential amount of interest of 8% till 21.01.1999 and 30.04.2003 within a period of eight weeks from today. In the interest of justice, we clarify that on and from 21.01.1999, till payment, future interest is to be paid at 6% per annum on the balance differential sum of interest, being the difference between 10% and 18%, and similarly, on the balance differential sum of interest between 10% and 18% on and from 30.04.2003 till payment.
Appeal allowed.
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2018 (7) TMI 2272 - ITAT AHMEDABAD
Disallowance u/s 14A r.w.r. 8D - 'interest' paid on term loans is not attributable to any income or receipt laid down in Rule 8D(ii) - CIT-A deleted the disallowance - HELD THAT:- As it is beyond doubt that the own fund of the assessee exceeds the investment as discussed above. Therefore, given above, we conclude that there is no question of making the disallowance on account of interest expenses under Rule 8D (2)(ii) in the given facts and circumstances. Thus the ground of appeal of the Revenue is dismissed.
Disallowance of expenditure in relation to dividend income - There was investment in mutual funds which has been sold during the year. Similarly, the investment has been made by the assessee in the mutual fund. Therefore, the plea of the assessee that it has not spent any time and energy on such investment does not appear to be correct. It is because the top management is certainly involved in the process of purchase and sale of investment.Therefore, we hold that the AO has rightly invoked the provision of Rule 8D for making the disallowance of expenditure in relation to dividend income.Thus, we are of the view that the disallowances made by the AO and subsequently confirmed by the Ld. CIT(A) are as per Rule 8D(2)(iii) of Income Tax Rule.
Disallowance u/s 14A determining the profit u/s.115JB - assessee before the ld. CIT(A) submitted that the disallowances made under the provisions of Section 14A of the Act could not be applied while determining the profit u/s 115JB - HELD THAT:- We hold that the disallowances made under the provisions of Sec. 14A r.w.r. 8D of the IT Rules, cannot be applied to the provision of Sec. 115JB of the Act as per the direction of CIT Vs. Jayshree Tea Industries Ltd. [2014 (11) TMI 1169 - CALCUTTA HIGH COURT] - AO needs to work out the disallowances in terms of the clause (f) to Explanation-1 of Sec. 115JB of the Act independently after considering the expenses debited in the profit & loss account as mandated under the provisions of law. Therefore we are inclined to restore this issue to the file of AO for fresh adjudication by law and in the light of above discussion. Thus this ground of CO the assessee is allowed for statistical purposes.
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2018 (7) TMI 2271 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD
Invocation of the pledged shares by PFS - compliance of Section 176 of the Contract Act or not - whether invocation of the shares pledged gives legal title to the goods pledged to the pawnee i.e. PPS or the title to the pledged shares still with the pawnor i.e. MHPL? - validity of action of the RP in not including PFS and MHPL in the CoCs by recognising them as financial creditors - HELD THAT:- It is clear that there is no sale of pledged shares but PFS (pawnee) has invoked the pledged shares and the name of PFS is recorded in the register members of NEVPL in the place of MHPL.
In fact, there is no controversy regarding invocation of the pledged shares. Such right is given to the Pledgee under the Deed of Pledge - In view of Clause 2.3(B) of the Pledge Deed, PPS is entitled to vote in all the meetings and entitled for dividends etc., paid by NEVPL.
Manner of creating pledge or hypothecation - HELD THAT:- Regulation 58(8) of the Regulation gives right to the Pledgee to invoke the pledge subject to the provisions of the pledge document - In the case on hand, in view of the provisions of the pledged document and in view of the regulation 58(8) Pledgee is entitled to invoke the pledge.
Regulation 58(8) further says that on invocation of the pledge, the depository shall register the Pledgee as beneficial owner of shares and amend its records accordingly. No doubt, Section 176 of the Contract Act gives pawnee, right to sell the pledged shares after giving reasonable notice to the pawnor. Section 176 of the Contract Act gives only two rights to the pawnee, namely, to file a suit upon the debt and retain the goods pledged as collateral security or pawnee may sell the goods pledged.
A reading of Regulation 58(11) says that no transfer of security in respect of which a notice or entry of a pledge or hypothecation is in force shall be effected by a participant without the concurrence of the Pledgee - the argument of the learned senior counsel for PFS that the invocation of the pledged shares is only with a view to prevent the Pledgor from dealing with the shares as superfluous in view of Regulation 58(11).
No doubt, Sec. 176 of the Contract Act recognises the right of the pawnor to redeem the pledged shares before sale to third party but here, in the case on hand, the pledged shares were got transferred to the pawnee himself and he became the beneficial owner of the pledged shares - It is not known to the MHPL/pawnor when the Pledgee (PPS) is going to sell the shares after giving notice to the pawnor i.e. MHPL.
Coming to MHPL, when the PFS has got a right to sell the shares and realise certain amount to that extent MHPL being guarantor to corporate debtor is entitled to recover the same from the corporate debtor and therefore to that extent MHPL would become financial creditor. Further in case of MHPL intends to redeem the pledged shares, MHPL has to clear the amount payable to PPS by the corporate debtor or pay atleast the fair value of the pledged shares as on the date of the invocation i.e. 16.01.2018 to the PPS. In that view of the matter also MHPL can be treated as financial creditor of the corporate debtor to the extent of the fair value of the shares pledged as on the date of invocation i.e. 16.01.2018 - the concept of related party is only necessary for the purpose of deciding the voting rights of the MHPL in accordance with the provisions of the IB Code.
The Resolution Professional is directed to appoint an independent valuer to assess the fair market value of the pledged shares as on 16.01.2018 and depending upon the said valuation report and keeping the findings of this Authority in mind decide to what extent PPS and MHPL are the financial creditors in respect of the corporate debtor - application disposed.
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2018 (7) TMI 2270 - ITAT VISAKHAPATNAM
Estimation of profit in IMFL business - case of the assessee was selected for scrutiny and assessment was completed u/s 143(3) of the Act by estimating net profit at 20% of the stock put to sale - HELD THAT:- In this respect, the coordinate bench of the Tribunal in the case of Tangudu Jogisetty [2016 (6) TMI 1449 - ITAT VISAKHAPATNAM] has considered the profit level in the line of business and decided that 5% of purchase price is reasonable profit margin in the line of IMFL business and directed the A.O. to re-compute the profit of the assessee.
Thus we direct the A.O. to re-compute the income of the assessee at 5% of purchase price. Accordingly, this ground of appeal raised by the assessee is allowed.
Addition in respect of unsecured loans - HELD THAT:- Credit in the name of Majji Govinda Rao there is a discrepancy in the date of demand draft taken and the amount and the purchaser of the DD. When this was pointed out by the ld. CIT(A), the ld. counsel for the assessee simply submitted that the transaction is genuine, therefore, the Assessing Officer as well as ld. CIT(A) doubted the entire transaction. The assessee failed to clarify the discrepancies pointed out by the Assessing Officer and failed to produce creditor before him, even failed to prove the creditworthiness. Under these facts and circumstances of the case, we are of the opinion that the onus casted upon the assessee has not been discharged. Therefore, the authorities below have rightly made the addition. Thus, this ground of appeal raised by the assessee is dismissed.
Unsecured loan in respect of M. Srinivasa Rao on appeal before us except stating what was stated before the ld. CIT(A), no material was brought to our notice that the transaction is genuine. By considering the facts and circumstances of the case, we are of the opinion that the assessee failed to discharge the burden casted upon him to prove the genuineness of the transaction and also creditworthiness of the creditor. Therefore, the authorities below rightly considered the issue and addition is made. We find no infirmity in the order of the ld.CIT(A). Thus, this ground of appeal raised by the assessee is dismissed.
Cash credit in the capital account and the assessee offered the same for taxation - Before us, ld. counsel for the assessee has submitted that the amount of Rs. 3.00 lakhs includes profit earned by the assessee, therefore, no separate addition can be made, it amounts to double addition. The AR of the assessee is not able to substantiate the above arguments with any supportive evidence. That apart, the Assessing Officer has not considered this amount while estimating the business income. Therefore, we find that the authorities below have correctly made the addition. Thus, this ground of appeal raised by the assessee is dismissed.
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2018 (7) TMI 2269 - ITAT MUMBAI
Monetary limit to file appeal before ITAT - Low tx effect - whether tax effect is below the monetary limit ? - Default u/s 201(1)/201(1A) - HELD THAT:- As it has been clarified that ‘tax effect’ shall be tax including applicable surcharge and cess. However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute.
Thus, while calculating the tax effect in the instant case, one has to exclude the interest of Rs.5,52,885/- determined by the AO u/s 201(1A) - Thereby the tax effect herein does not exceed the monetary limit of Rs.20,00,000/- fixed for filing appeal before the Tribunal. Appeal filed by the revenue is dismissed as not pressed.
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2018 (7) TMI 2268 - SUPREME COURT
Misconduct by Constable - Allegation is that Appellant remained absent without proper permission of competent authority with consent of his Guard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930 hrs - rape - it is also alleged that while functioning as constable (Guard) has committed an act of misconduct in his capacity as a member of the force in that he tried to do sexual intercourse with a woman with mutual consent by giving money which amounts to indiscipline/moral turpitude - Violation of principles of natural justice - HELD THAT:- Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.
There is no requirement of appointment of Presenting Officer in each and every case, whether statutory Rules enable the authorities to make an appointment or are silent. When the statutory Rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice.
The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the Rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though Rule does not specifically require hearing of delinquent officer.
Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry - The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the Appellants to proceed with inquiry afresh.
All the appeals are dismissed subject to the liberty as granted by the High Court that it shall be open for the Appellants to proceed with the inquiry afresh from the stage as directed by the High Court and it shall be open for the Appellant to decide on arrear pay and allowances of the Respondents.
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2018 (7) TMI 2267 - KARNATAKA HIGH COURT
Maintainability of appeal - monetary for filing an appeal before High Court - low tax effect - HELD THAT:- The tax effect in the present case as stated by the Appellants-Revenue is less than the prescribed limit of Rs.50.00 lakhs for filing an appeal before High Court.
Appellants- Revenue does not press this appeal and seeks leave of the Court to withdraw the present appeal in terms of paragraph-13 of the said Circular.
Accordingly, in view of the aforesaid Circular issued by the Central Board of Direct Taxes, the present appeal is dismissed as not pressed/withdrawn without answering the purported substantial questions of law.
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