|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1460 Records
-
2017 (7) TMI 1385 - KERALA HIGH COURT
Validity of Supreme Court's direction - whether ambiguous or incongruent and decide a different course of adjudication? - Does not propriety demand this Court to advise either party to approach the Supreme Court and seek clarification if this Court has perceived any ambiguity in the direction, or if it has felt the order to be inherently contradictory - HELD THAT:- There are two options. First, putting an indeterminate interpretative spin on the Supreme Court's Order; then, we should either hear the review petitions already closed by another coordinate Bench, or hear the appeals afresh as directed by the coordinate Bench. This, again, amounts to our ignoring the Supreme Court's Order. In our respectful view, neither is permissible, for it breaches Article 141 of the Constitution - Second, we should disregard the coordinate Bench's direction issued on 24.11.2010, reopen the review petition, and proceed further. But this course contradicts the common-law doctrine: law of the case. Indeed, as we have already observed the law-of-the-case doctrine is not iron clad. Applying the doctrine and sustaining the order, dt. 24.11.2010, we reckon, will amount to this Court's clarifying-rather than interpreting-the Supreme Court's judgment. And it is inadvisable, nay impermissible.
This Court cannot ignore the Supreme Court's express direction or observation on the supposed ground that it is either ambiguous or incongruent and decide a different course of adjudication - propriety demands this Court to advise either party to approach the Supreme Court and seek clarification if this Court has perceived any ambiguity in the direction, or if it has felt the order to be inherently contradictory - this Bench ignore a judicial directive-procedural though-of a coordinate Bench and take a different view ignoring the law-of-the-case principle to prevent miscarriage of justice.
-
2017 (7) TMI 1384 - BOMBAY HIGH COURT
Substantial question of law - filing of appeal from the second order - existence of two opinions - HELD THAT:- There can be no two opinions on the issue that even if appeal has not been filed from an earlier order, which has been relied upon by the impugned order, the appellant could file an appeal to this Court from the second order. However, this filing of appeal from the second order has to be supported by the averments/submissions showing distinction in the facts and/or in law which would evidence that the impugned order give rise to substantial question of law in the backdrop of the distinctive features in the subsequent order, even though no appeal has been filed from the earlier order.
No such averment is found either in the appeal memo nor any such submission has been made at the bar. This Court has consistently taken a view that one of the important elements of rule of law is certainty of law. Therefore, mere change in the Assessment Year, Assessing Officer or assessee will not warrant a filing of appeal. Where the relied upon order has been accepted by the Revenue and they are able to show by either making an averment in the appeal memo or filing an affidavit showing distinctive features either in facts or in law which would warrant different considerations for entertaining the appeal, the Court would entertain the appeal. However, the Revenue cannot pick and choose the matters which it would agitate before a Higher Forum without there being any distinctive features in fact and /or law.
Even if the principle of res judicata does not apply in tax matters, yet consistency and certainty of law would require the State to take uniform position and not change their stand in the absence of change in facts and/or law. In this case, admittedly there is no change in the facts and/or in law.
As held by the Apex Court in C.K.Gangadharan v. CIT [2008 (7) TMI 10 - SUPREME COURT] and in CIT vs. J.K. Charitable Trust [2008 (11) TMI 8 - SUPREME COURT] this challenge would depend upon the appellant pointing out some distinction in fact and/or law which would justify filing of an appeal. The Supreme Court in the above two cases has observed that though no appeal has been preferred by the Revenue in earlier cases, that would not by itself bar the preferring of an appeal from subsequent order provided there is a change in fact situation. The Court illustrated the same by pointing out the issue being revenue neutral in the earlier year, smallness of tax involved, pronouncement of Higher Court, divergent views of the High Courts as justification for filing appeals from orders of subsequent years.
We are of the view that, the absence of the above, would lead to arbitrariness and unsettling of law. This is so as on the basis that consequent to the decision of the Tribunal on an issue, various assessee in the State would plan its affairs on that basis. In fact, at the very outset, the Revenue must point out why the earlier decision is not correct and the circumstances which led to its acceptance. No such attempt has been made.
-
2017 (7) TMI 1383 - MADRAS HIGH COURT
Harassment - main contention of the learned counsel for the Petitioner in this case is that the de-facto complaint in her statement under Section 161(3) of Cr.P.C has admitted that she has given the complaint by exaggerating the incident - HELD THAT:- Having regard to the position that the petitioner's case is purely on factual aspects, this Court finds no reason to quash the criminal case.
The Criminal Original petition is dismissed.
-
2017 (7) TMI 1382 - SUPREME COURT
Validity of Criminal proceedings - prosecution Under Section 39 of the Standards of Weights and Measures Act, 1976 read with Rule 4, 6, 8 and 23(1) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 - HELD THAT:- In the present complaint petition, there is no averment or statement whatsoever that the Appellant as the Managing Director of the Company was responsible or incharge of the conduct of the business of the Company in respect of which the offence in question has been alleged to have been committed. Neither there is any averment to the effect that the Appellant is otherwise connected or responsible for commission of any of the acts on the basis of which the offence(s) is alleged to have been committed.
The proceedings against the accused-Appellant are liable to be quashed - Appeal allowed - decided in favor of appellant.
-
2017 (7) TMI 1381 - ITAT MUMBAI
Dividend Distribution Tax (DDT) - FAA referred to provisions of section 115-O and Article-10 of the DTAA entered into by India and Hungary and held that DDT was not a tax paid by the recipient foreign principal of the assessee, that it was a tax charged on the assessee itself in the status of domestic company, that foreign principal had no tax liability as far as DDT - foreign principal was not entitled to claim any beneficial treatment in terms of provisions of Article-10(2) of the relevant tax treaty, that the assessee also was also no entitled to claim such beneficial treatment independently, that a tax liability under the Act imposed on domestic transaction of a domestic entity was out of the purview of the DTAA provisions. - HELD THAT:- As decided in own case [2017 (7) TMI 692 - ITAT MUMBAI] DDT is a liability of the domestic company declaring dividend and not liability of the shareholder receiving such dividend income. Whereas, careful reading of Article–10 of India Switzerland treaty prima–facie gives an impression that it speaks of taxability of the dividend at the hands of the recipient of such dividend which is a resident of the other contracting state. Therefore, keeping in perspective the provisions contained under section 115O vis–a–vis Article–10 of DTAA it needs to be examined whether the benefit of tax treaty can be extended to the DDT paid / payable by the assessee. We have noted, the various proposition advanced by the assessee claiming benefit under Article–10 of India Switzerland DTAA as contained in the written notes are nothing but repetition of submissions made before the learned Commissioner (Appeals).
Repetition of submissions made before the learned Commissioner (Appeals) on 20th February 2014, a copy of which is at Page–112 of the paper book. Though, reading of Article–10 of India Switzerland DTAA prima–facie gives an impression that it will only apply to non–resident shareholder receiving the dividend, however, still it leaves a scope for examining the claim of the assessee that DDT being a tax on dividend, Article–10 of the DTAA would be applicable even if such dividend is payable by the domestic company. In our view, it will be too simplistic to reject the contention of the assessee on the plea that it will only apply where the non– resident recipient of dividend incurs the liability in respect of dividend. Commissioner (Appeals), though, was required to deal with all propositions advanced by the assessee, he has not done so. Therefore, we are inclined to restore the matter back to the file of the learned Commissioner (Appeals) for fresh consideration after reasonable opportunity of being heard to the assessee.
-
2017 (7) TMI 1380 - ITAT JAIPUR
Rejection of books of accounts u/s 145 - Estimation of Gross profit - AO after rejection of books of accounts has estimated G.P. @17.20% as against G.P. @13.19% declared by the assessee - HELD THAT:- In view of the specific observations of the auditors in terms of inconsistency in maintaining the books of account and not following the well accepted accounting principles and the Coordinate Bench decision in assessee’s own case for A.Y. 2008-09 [2014 (11) TMI 1015 - ITAT JAIPUR]wherein on similar basis the books of accounts were rejected, we see no reason to interfere with the order of the lower authority in terms of rejection of the books of accounts.
Regarding estimation of G.P. rate, wherein the books of accounts are rejected, a fair estimate is required to be made by the Assessing Officer. The principle of average taking into consideration last 5 years past history is clearly a robust and fair basis of estimation to determine the gross profits for the year under consideration. The average G.P rate of last 5 years as finally affirmed comes to 13.58%. The AO is accordingly directed to apply the G.P. rate of 13.58% as against G.P rate of 13.19% declared by the assessee.
Addition u/s 40(a)(ia) on account of non-deduction of TDS on payment made to Export Promotion Council for handicraft working under Ministry of Commerce and Industry for export trade fair - HELD THAT:- We find that no information was submitted before the Assessing Officer on the nature of payment - CIT(A) upheld disallowance stating that the assessee has not filed any receipt/document which suggested that the payment is towards registration cum membership charges. Before this Bench, the assessee has submitted that the payment has been made to Export Promotion Council of which assessee is a member for booking of stall area at New Delhi and the payment is not liable for TDS in terms of section 196 of the Act. Alternatively it was submitted that the payment is liable for TDS u/s 194(I) and since the payment is less than the threshold of ₹ 1.8 lace. There is no liability towards TDS and accordingly the addition made by the Assessing Officer may be deleted.
Firstly regarding the applicability of section 196 of the Act, there is nothing on record to suggest that Export Promotion Council is exempt from payment of income tax. Hence, in absence of the same, we are unable to accede to the contention of the ld. AR that no TDS is liable on the subject payment. Regarding the alternative contention of the ld. AR regarding applicability of section 194(I) assessee is taking varying contention regarding exact nature of payment.
No evidence is available on record to determine the exact nature of payment – whether its towards membership fees or towards participation in trade fair and stall booking or both. Accordingly, we are setting aside the matter to the file of the AO to examine the exact nature of payment and decide the matter a fresh as per law. Hence, the ground no. 2 of the assessee’s appeal is allowed for statistical purposes.
Addition u/s 69A in respect of cash deposit in personal saving bank account maintained by the assessee - HELD THAT:- We are setting aside this matter to the file of the AO to examine the above books of accounts to determine the source of cash deposit in the personal bank account of the assessee. We are not getting into the merit of the matter and the contentions raised by the assessee explaining the source of deposits as the same has not been examined by the AO. The appellant is at liberty to raise its said contentions before the AO and the AO will examine the same and give his findings as per law. In the result, the ground is allowed for statistical purposes.
-
2017 (7) TMI 1379 - ITAT JAIPUR
Vivad Se Vishwas scheme - assessee has opted for seeking resolution under Vivad Se Vishwas Act, 2020 for settlement of disputed tax - HELD THAT:- In view of the fact that the assessee has already approached the department to settle the matter under Vivad Se Vishwas scheme, we permit the assessee to withdraw his appeal. Accordingly, the appeal of the assesses is dismissed as withdrawn.
-
2017 (7) TMI 1378 - CHHATTISGARH HIGH COURT
Non-payment of service tax - mining services - issuance of letter to the garnishee for recovery of the dues by collecting those money - allegation against the Petitioners is that they have not paid the service tax for quite some time including the year 2016-17 and therefore it has been necessitated for the department to issue a letter to the garnishee for recovery of the dues by collecting those money which the management of SECL was to pay to the Petitioners - HELD THAT:- Undisputedly, in the year 2016-17, there has been no proceeding drawn against the petitioner-firm by the Respondents for assessment of the default in payment of service tax. It is also not in dispute that no show cause notice also has been issued to the Petitioners for the default, if any, for the year 2016-17. The show cause notice which is being referred to by the Respondents in their reply, is for the assessment year 2011-12 to 2015-16. This, in the opinion of this Court, is not proper, legal or justified. The Finance Act clearly envisages certain provisions of law which deal with the taxable service for charging the service tax. Section 72 deals with the provision for best judgment assessment, which a person or an establishment which is liable to pay service tax is supposed to do.
A perusal of these two Sections would clearly reflect that there has to be a proper legal proceeding drawn so far as default of payment in service tax is concerned and an order has to be passed against the concerned and only then can the recovery proceeding or freezing proceeding or the order of freezing could have been passed - In the instant case, since no proceeding has been drawn, no show cause notice has been issued, no determination has been done, the impugned order (Annexure P-1) asking the SECL to detain the amount payable to the petitioner-firm until the amount is paid, is not sustainable and the same is accordingly set aside/quashed.
Petition allowed - decided in favor of petitioner.
-
2017 (7) TMI 1377 - GUJARAT HIGH COURT
Seeking release of freezed Bank Accounts of petitioner - seeking directions to the respondent No. 2 to communicate to the bankers of the petitioner and his family members that the accounts be no longer remained freeze and the petitioner and his family members be permitted to operate the bank accounts without any hindrance - seeking stay on the action of freezing the accounts of the petitioner and his family members as per details given at Annexure)B and allow the petitioner and his family members to operate the bank accounts - HELD THAT:- This Court, in the case of PARESHA G. SHAH VERSUS STATE OF GUJARAT & 2 [2015 (6) TMI 1173 - GUJARAT HIGH COURT] considered section 102 of the Cr.P.C. as the source of power with the authority under the PMLA to freeze the accounts of the concerned accused and his family members and others. At this stage, I must confess that in the case of Paresha G. Shah, I overlooked the provisions of section 17 of the PMLA, 2002. Section 65 of the PMLA provides that the provisions of the Code would apply insofar as they are not inconsistent with the provisions of the PMLA, 2002 to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the PMLA.
The PMLA, 2002, has provided specifically a provision for search and seizure. What is important is section 17(4) of the PMLA, 2002, which provides that the authority freezing any record or property is obliged to file an application, requesting for continuation of the order of freezing before the adjudicating authority - Section 102 of the Cr.P.C. differs to this extent with section 17(4) of the PMLA, 2002. In view of section 65 of the PMLA, 2002, when it comes to freezing the accounts, the source of power is section 17, and clause (4) will have to be complied with.
In the case on hand, I inquired with Mr. Vyas, the learned Assistant Solicitor General of India, appearing for the department, whether there is anything to show as regards the compliance of section 17(4) of the PMLA, 2002. Mr. Vyas replied that ordinarily, in all cases of search, seizure and freezing of the accounts, a request is made by the authority concerned before the adjudicating authority to continue the order of freezing beyond the period of 30 days. Mr. Vyas still maintains that it is section 102 of the Cr.P.C which would apply so far as the power of freezing is concerned and not section 17(4) of the PMLA, 2002. To this extent, I am unable to agree with Mr. Vyas. Section 17(4) of the PMLA, 2002 is very specific and it casts an obligation upon the authority to make a request, within a period of 30 days from freezing, to continue the order of freezing served under sub-section (1A) before the adjudicating authority - Mr. Vyas, the learned Assistant Solicitor General of India, could not produce any materials for the purpose of showing compliance of section 17(4) of the PMLA, 2002.
The Prevention of Money Laundering Act was enacted to prevent money-laundering and to provide for the confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. On a plain reading of various sections, it is clear that under Section 2 (u) of PMLA any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence is proceeds of crime - Any person aggrieved by an order made by the Adjudicating Authority under Section 8 of PMLA can avail the remedy of appeal under Section 26 of PMLA to the Appellate Tribunal, whereby again the accused person is given an ample amount of opportunity of being heard, before any orders are passed. It is only when a person is aggrieved by the decision or order of the Appellate Tribunal that he may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him. The remedy of appeal under Section 42 of PMLA is in the nature of second appeal.
The learned counsel pointed out that there is a discrepancy so far as the amount is concerned. The provisional attachment order passed by the Directorate of Enforcement talks about the cash balance in the Bank accounts, fixed deposits, investment in the LIC and LIC policies to the tune of ₹ 3,72,66,630/-, whereas in the complaint lodged before the Designated Court under the PMLA, 2002, the amount shown is ₹ 1,02,16,000/-. According to the learned counsel, once a complaint is filed in the Special Court, the same cannot be now even amended. Having regard to the nature of the issue raised in this petition, I do not propose to go into this controversy at this stage.
Application dismissed.
-
2017 (7) TMI 1376 - ITAT MUMBAI
Unexplained loan - addition u/s 68 - assessee could not produce the confirmation from the said party - CIT-A deleted addition - D.R. submitted that the Ld. CIT(A) has allowed the appeal without verifying the creditworthiness, genuineness of the transaction and identity of the creditor, therefore, matter may be restored to the AO to verify the same - HELD THAT:- We find that during the course before the Ld. CIT(A), the assessee has submitted own bank statement reflecting the said payment, ledger account of lender and balance confirmation but Ld. CIT(A) has not called for the remand report or the Ld. CIT(A) has not verified these details. The Ld. CIT(A) has, simply relying upon the judgment of Nemi Chand Kothari vs. CIT [2003 (9) TMI 62 - GAUHATI HIGH COURT] deleted the addition. Therefore, we reverse the finding of Ld. CIT(A) and restore this matter back to the file of AO and the AO is directed to decide the matter afresh, as per law. Appeal of the Revenue is allowed for statistical purposes.
-
2017 (7) TMI 1375 - ITAT CHENNAI
Rectification u/s 154 - seeking to assess the book profit of the assessee at the ‘correct’ figure - HELD THAT:- Only thing that needs to be seen in this regard is if the company, in reducing the profit on the sale of shares, has followed any of the specified adjustments under Explanation 1 to s. 115JB. We find that none of the specified adjustments correspond to the said adjustment, made by the assessee to the net profit per the revised return, and neither has the assessee stated any at any stage. This, rather, raises a question on the validity of the said revision, which u/s. 139(5) could only be rectify an omission or wrong statement in the original return, so that it is incumbent on the assessee to state what omission or wrong statement informs its revision, i.e., its’ basis, and which it has abysmally failed to.
Continuing further, capital gains on transactions in securities has been specified for reduction (from net profit) only in the case of a foreign company (Cl. (iid) to Explanation 1, inserted w.e.f. 01/4/2016). The same by itself implies, i.e., if there were to be any doubt whatsoever in the matter, that the capital gains for an assessee, not being a foreign company, being not specifically provided, is not to be reduced (from the net profit) in arriving at the book profit. Thus, even if the shares sold are held as a capital asset – which does not appear to be the case on the basis of the assessment order, so that the surplus on their sale is a capital gain to the assessee, the profit on the said sale cannot be reduced.
We accordingly have no hesitation in confirming the impugned order and, thereby, the rectification by the AO.
-
2017 (7) TMI 1374 - MADRAS HIGH COURT
Levy of Sales Tax - Works Contract or not - job rendered by a photographer in taking photographs, developing and printing films - HELD THAT:- The legal issue involved in this writ petition is covered by the decision in the case of RAINBOW COLOUR LAB VERSUS STATE OF MADHYA PRADESH [2000 (2) TMI 2 - SUPREME COURT] where it was held that the work done by the photographer which as held by this Court in Kame's case (1976 (12) TMI 164 - SUPREME COURT OF INDIA), is only in the nature of a service contract not involving any sale of goods, we are of the opinion that the stand taken by the respondent-State cannot be sustained.
Petition disposed off.
-
2017 (7) TMI 1373 - SC ORDER
Cancelling the block assessment framed u/s. 158BC r.w.s 158BD - satisfaction note in the case of assessee (other than searched person) was belated and after the assessment was completed - satisfaction note can be after the assessment is completed in the case of searched person - HELD THAT:- SLP dismissed.
-
2017 (7) TMI 1372 - BOMBAY HIGH COURT
Allowing exgratia payment as a deductible expense - exgratia payment by its very nature of payment is a favour having no nexus with commercial consideratio - Tribunal allowed claim - HELD THAT:- Section 63 of the Act empowers the Board of Directors to approve payment of exgratia amount to its employees. It is also observed by the Tribunal that the assessee has been extending incentives to employees for the preceding years and the subsequent years also and the same is accepted by the Revenue.
Tribunal has also relied on the Judgment of this Court in the cases of CIT Vs. Maina Ore Transport P. Ltd., [2008 (8) TMI 504 - BOMBAY HIGH COURT] and Shahzada Nand & Sons [1977 (4) TMI 4 - SUPREME COURT]wherein it has been held that exgratia payment made by the employer to its employees is on account of commercial expediency and hence allowable.
In the case of Mafatlal Fine Spg. & Mfg. Co.Ltd [2003 (2) TMI 27 - BOMBAY HIGH COURT] relied by the Revenue, there was no evidence to show the agreement between the assessee and the employees and the earning of the assessee or to show that exgratia payment is reasonable or in accordance with the provisions at the relevant time.The practice of exgratia payment is evident from the observations of the Tribunal. For the preceding year and the subsequent years the department has allowed deduction in respect of exgratia payment. No substantial question of law
-
2017 (7) TMI 1371 - ITAT MUMBAI
Correct head of income - License Fees receipt - 'Profits and Gains of Business or Profession' or "Income from House Property" - HELD THAT:- When it remains as a matter of fact that the income from the composite letting of the furnished flats by the assessee, had after thorough vetting and scrutinizing consistently accepted and assessed as 'business income' by the department in the earlier years while framing regular assessments, therefore, in the absence of any new facts emerging during the year under consideration, which could irrefutably dislodge the aforesaid view and therein justify a view to the contrary, such an inconsistent approach on the part of the A.O would not be permissible.
Reliance placed by the department on the judgment of H.A. Shah and Co. v. CIT [1955 (9) TMI 53 - BOMBAY HIGH COURT] is distinguishable on facts whrein upheld the view arrived at by the A.O, for the reason that during the year under consideration certain documents justifying taking of such contrary view were made available on record - unlike the facts involved in the case before the Hon'ble High Court, now when in the case of the present assessee no such material had therein emerged which could go to justify taking of an inconsistent view by the A.O, therefore, the income received by the assessee from composite letting of furnished flats on the basis of same facts as were there before him in the preceding years, cannot be permitted to be assessed during the year under the head 'Income from house property'.
Except for raising of oral averments, no material had been brought to our notice by the ld. D.R which could persuade us to subscribe to the claim of the department that certain new facts had emerged during the year under consideration, which clearly militated against the validity and legality of assessing of the composite rental receipts under the head 'business income' in the preceding years, and would thus justify a departure from the consistent approach that had been adopted by the department at stretch for years. We thus in the backdrop of our aforesaid observations, thus set aside the order of the CIT(A) and therein hold that the composite rental receipts were liable to be assessed, as claimed by the assessee in her return of income, as her 'business income'. The Ground of appeal No. I is allowed.
Depreciation Disallowance on fully furnished flats - Whether once the flats are used for the purposes of the business of composite letting, they form part of the block of assets and in view of Explanation 5 to section 32, allowance of depreciation is mandatory and hence cannot be disallowed? - HELD THAT:- Composite rental receipts are liable to be assessed as the 'business income' of the assessee, therefore the assailing of the disallowance of depreciation by the assessee is rendered as consequential. We thus direct the A.O to allow the claim of the assessee towards claim of depreciation. The Ground of appeal No. II being consequential to our adjudication of the head of income under which the composite letting receipts were liable to be assessed, is thus allowed.
-
2017 (7) TMI 1370 - SUPREME COURT
Validity of action of the Appellants in not releasing the Low Tension (domestic) Power Supply - HELD THAT:- The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd. [2012 (11) TMI 406 - SUPREME COURT]. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner.
Appeal dismissed.
-
2017 (7) TMI 1369 - JHARKHAND HIGH COURT
Clandestine removal - M.S. Ingots - demand based on presumption and surmises - unrealistic electricity consumption, high cost of production vis-à-vis income from sale, unrealistically low amount of expenditure towards salary of employees and though manufacturing activity incurs losses - HELD THAT:- This Court is remanding the matter to the Commissioner, Central Excise & Service Tax, Ranchi. This Court is not much going into detail of further arbitrariness in the Order-in-Original about the lower remuneration to the employees of the petitioner-unit as well as the manufacturing unit is running in loss and the profit is made from non-core activities etc. There appears to be very high sounding reasons, but, if they are viewed with zoom lens camera, it appears that nothing is proved by the respondents. “Low remuneration” is a relative word and therefore, statement of the employees of the noticee, ought to have been reduced to writing by the respondents-department. If the employees are stating that they are getting more remuneration than what is shown in the books of account by the noticee, then these statements ought to have been reduced in writing and they must be referred in the show cause notice. Copies of the gist of the statements should be given to the noticee and those employees must be kept to have been followed by the respondents department. Instead of doing this exercise, allegation has been levelled that there is low remuneration paid by the noticee, is not sufficient at all.
The Order-in-Original is based upon mere presumptions and possibilities, and, nothing has been proved at all by the respondents, especially unaccounted manufacturing of M.S. Ingots and the clandestine removal thereof.
The documents which are referred to in the show cause notice and relied upon, should have been supplied to the petitioners. These documents are :- Nucleus Group report. The document has been referred in the show cause notice dated 7-2-2014 (Annexure-1). Imaginary is the basis of the show cause notice and without proof, the Order-in-Original has been passed in the same breath.
The matter is remanded for adjudication of the show cause notice dated 7-2-2014 and the matter will be decided afresh - Petition allowed by way of remand.
-
2017 (7) TMI 1368 - CHHATTISGARH HIGH COURT
Validity of Garnishee Notices - Freezing of amount payable to the petitioner-establishment - solitary ground of challenge by the Petitioners to these impugned orders is that there has been no determination made by the Respondents assessing the actual amount of default on the part of the petitioner-establishment upon which the recovery proceedings could have been initiated - HELD THAT:- Before initiating proceeding under Section 87, the authorities ought to have initiated appropriate assessment proceeding and determination of the amount payable by the establishment and a demand notice also needs to be issued and only in the event of the demand notice not being satisfied, the proceedings under Section 87 can be initiated - In the instant case, when we look at the reply submitted by the Respondents, we do not find any such adjudication done under Section 73 of the Act. Neither from the reply nor from the submissions made by the Respondents, do we find any demand notice being raised against the Petitioners at any point of time and it is only the garnishee notices and a freezing order straightaway issued, Annexure P-1 to the management of SECL and Annexure P-2 to the Union Bank of India.
This Court has no hesitation in reaching to the conclusion that the garnishee notices issued to the SECL and Union Bank of India were totally uncalled for and the authorities ought not to have issued such notices before a final determination is done - Petition allowed.
-
2017 (7) TMI 1367 - ITAT CHANDIGARH
Exemption u/s 11 - assessee as covered by section 2(15) or not - AO observed that the appellant was carrying on business of sale & purchase of residential houses, construction of mutli-storeyed houses, sale of residential plots and commercial plots by auction and earned huge net profit - HELD THAT:- Considering the nature of the Act, selling of plots and premises by the trust is only incidental and ancillary to its main purpose which at the cost of repetition is "town improvement". Even where the plots are developed and premises are constructed and sold at the market price, the activity is not commercial or business venture per se but one necessitated on account of the implementation of the provisions of the trust through statutory schemes. The main purpose of such schemes is driven by public requirements and not as a commercial venture per se. They are incidental to the main object of the trust.
In the present case, the AO has not indicated any facts which indicate that the assessee deviated from this principle. He has merely referred the extent of profit making activities without correlating the same to the other activities of the trust.
As decided in Tribune Trust [2017 (1) TMI 53 - PUNJAB AND HARYANA HIGH COURT] Section 2(15) and the corresponding sections including Sections 11, 12, 12A and 12AA are independent of Section 10(20A) of the Act. Upon the omission of Section 10(20A), the provisions of the other sections were not affected. They remained intact. An assessee could have been entitled to the provisions of Section 10(20A) and the other provisions simultaneously. The omission of one, however, does not affect the validity or the existence of the others. The two provisions are distinct and independent of each other. Thus the omission of Section 10(20A) did not affect the rights of the parties claiming the benefit of Sections 2(15), 11, 12, 12A and 12AA - Decided in favour of assessee.
-
2017 (7) TMI 1366 - SUPREME COURT
Abduction and murder of Ramesh Jain - Conviction under Section 328 read with 201 IPC - permissibility of an objection regarding inadmissibility at this stage - Section 65B (4) of the Indian Evidence Act - HELD THAT:- Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court.
It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4) - The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.
An objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
Whether the accused is competent to waive his right to mode of proof? - HELD THAT:- The witness, who had deposed earlier, did not appear in the subsequent proceeding on the ground that he was unable to move from his house because of tuberculosis, as deposed by the process server. There was no medical evidence in this regard. The Court observed that the question of whether or not he was incapable of giving evidence must be proved in this context, and in the proof of such a fact it was a condition that statements given in an earlier proceeding can be taken as proved in a subsequent proceeding.
Section 294 of the Cr. P.C. 1973 provides a procedure for filing documents in a Court by the prosecution or the accused. The documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each document. In case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act.
The judgment of the High Court confirming the Trial Court is upheld - appeals are dismissed.
........
|
