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2014 (6) TMI 1080 - PUNJAB AND HARYANA HIGH COURT
Grant of bail - bail is being sought on the ground that charge-sheet was not filed by the police within the stipulated period - HELD THAT:- Undoubtedly, the fact that the application for bail was filed and the Public Prosecutor had moved for extension prior to that, is distinguishable from the reported case, yet Hon'ble the Supreme Court having categorically held that the order of extension could not be passed retrospectively, the respondents could not derive any benefit from the impugned order. The learned Special Judge could not have granted extension from back date and it was for the Public Prosecutor to have moved the application well within time.
The petition is allowed and the petitioner is held entitled to bail under Section 167(2) Cr.P.C. It goes without saying that this order is not to be taken as any expression of opinion on the merits of the case. Bail to the satisfaction of the trial Court/Vacation Judge.
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2014 (6) TMI 1079 - ANDHRA PRADESH HIGH COURT
Non-service of notice as required under Rule 64(b) of AP VAT Rules - HELD THAT:- Under Rule 64(b) of the AP VAT Rules, notice is considered to have been served if (i) it is personally served on the nominated person; (ii) if it is left at the registered office of the person or the person's address for service of notices under the AP VAT Act; (iii) it is left at or sent by registered post to any office or place of business of that person in the State or (iv) where it is returned un-served, if it is put on board in the office of the local chamber of commerce or traders association.
A perusal of the impugned assessment order makes it clear that show cause notice was issued in Form VAT 305A, dated 31-10-2013 inviting written objections, if any against the proposed assessment and was served on the petitioner under Rule 64(b) of the Rules - the contention of the petitioner that notice as required under Rule 64(b) of the Rules is not served is liable to be rejected and it is accordingly rejected.
Thus, the impugned order insofar as it relates to the period from April 2009 to October, 2009 is barred by limitation under Section 21(4) of the AP VAT Act and accordingly the same is set aside - petition allowed.
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2014 (6) TMI 1078 - CALCUTTA HIGH COURT
Actual possession of property - no mutation certificate has yet been issued by the Urban Development Department - HELD THAT:- Since it is evident from the memo dated 6th June, 2013 that the application dated 16th August, 2010 filed by the petitioner is still pending, considering such fact, the writ petition is disposed of by directing the District Magistrate, Nadia, the respondent no.2 to dispose of the said application by passing a reasoned order to be communicated to the parties, within a fortnight from the date of presentation of a copy of the order down-loaded from the official server, after giving an opportunity of hearing to a representative of the petitioner and to the Sub-Divisional Officer, Kalyani, Nadia and the Estate Manager, Kalyani, Nadia, the added respondents.
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2014 (6) TMI 1077 - ITAT PUNE
Validity of order passed u/s 144C (13) - gross violation of the principle of natural justice - As per assessee order of DRP as passed in the absence of non appreciation of arguments, evidence in support of assessee’s claim as agitated before the Panel - HELD THAT:- According to us, the order of TPO may be upheld in case the arguments of AR before DRP are same as before the TPO. In case before us, the fact is otherwise as the assessee has raised further arguments, gave further evidence before the DRP.
In such a situation, upholding the order of TPO ignoring various contentions along with evidence to that effect is not justified. The reasoning is the soul of the order, which is missing in this case. Such an approach cannot be encouraged. The essence of principles of natural justice is to provide an opportunity of being heard to the assessee and after hearing, the same should be duly incorporated in the order of judicial authority. In the absence of reasoned finding on the contentions/evidence of the assessee, the order amounts to nonspeaking one which cannot be upheld. See Atotech India Ltd [2011 (1) TMI 112 - ITAT, DELHI] AND M/S SYMANTEC SOFTWARE SOLUTIONS PRIVATE LIMITED [2012 (8) TMI 590 - ITAT, MUMBAI] AND GEODIS OVERSEAS (P) LTD. [2011 (3) TMI 860 - ITAT, DELHI]
So following the same reasoning we set aside the order of DRP and restore the issue to the DRP with a direction to decide the same as per fact and law after providing due opportunity of being heard to the assessee. The assessee is directed to co-operate in the proceedings before the DRP. Appeal filed by the assessee is allowed for statistical purposes.
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2014 (6) TMI 1076 - ITAT HYDERABAD
TP Adjustment - comparable selection - Functional dissimilarity - HELD THAT:- Deselection of companies as functionally dissimilar with that of assessee as engaged in rendering market research and related Information Technology Enabled Services (ITES) for domestic and international clients. Assessee’s Offshore Research Service Centre (ORSC) is registered with Software Technology Park of India and provides ITES to its group companies.
Consideration of management fees disallowed in computation of operating margin - We are of the view that when the TPO is disallowing the payment of management fees, it cannot be considered for the purpose of computation of operating margin, otherwise, it will amount to double addition. We, therefore, remit this issue back to the file of the AO/TPO to look into this aspect and decide the issue after affording reasonable opportunity of being heard to the assessee.
Computation of working capital adjustment - We are of the view that if the assessee has maintained separate records and can substantiate allocation of expenditure to the international transactions with AE and non-AE there is no reason why working capital adjustment should not be made accordingly. In that view of the matter, we remit the issue back to the file of the AO/TPO for deciding the same afresh after affording reasonable opportunity of being heard to the assessee. TPO must consider the submissions of the assessee in the context of the facts and materials placed before deciding the issue. Accordingly, we direct the AO/TPO to compute ALP in conformity with our directions hereinabove and work out adjustment if any to be made u/s 92CA of the Act.
Exemption u/s 10A of the Act on the profit relating to offshore research services centre (ORSC) unit of the assessee - AO while framing draft assessment order rejected exemption claimed u/s 10A of the Act in respect of ORSC unit by holding that the aforesaid unit having been set up by splitting up/reconstruction of the existing business exemption claimed cannot be granted - HELD THAT:- So far as the first contention of the assessee that ORSC is a new unit, we are unable to accept such contention in view of the specific finding of the AO, which has not been controverted by the assessee by bringing sufficient material to substantiate its claim.
Alternative contention of the assessee for allowing claim of deduction u/s 10A of the Act due to conversion from DTA unit to STPI unit, we find force in such contention of the learned AR. It is not in dispute that ORSC unit is recognized as a STPI unit. On perusal of the order passed by the DRP for the AY 2008-09, it is seen that in para 12 of the said order, the DRP has held that when ORSC unit is converted from domestic tariff area to STPI unit, it is eligible for deduction u/s 10A of the Act for the remaining period out of 10 consecutive assessment years starting from the year in which it was approved as STPI unit. In view of such finding of the DRP for the AY 2008-09, we direct the AO to allow deduction u/s 10A of the Act for the impugned assessment year also.
Levy of interest u/s 234B is consequential to the final determination of income.
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2014 (6) TMI 1075 - MADRAS HIGH COURT
Validity of Arbitral Award - seeking relief for appointment of Advocate Commissioners to seize and possess the hypothecated equipment - HELD THAT:- This Court, without traversing upon the merits of the matter and also taking note of a primordial fact that the Respondent/Defendant is ready and willing to hand over the machineries concerned in O.S.A. Nos. 60 to 62 of 2014 (arising out of A. Nos. 441, 442 and 444 of 2013) to the Appellant/Applicant/Plaintiff, in furtherance of substantial cause of Justice and on balance, directs the Respondent/Defendant to hand over/entrust the custody of the machineries concerned, as stated supra, to the Appellant/Plaintiff's Authorised Representative, on or before 16.06.2014, at a place and time to be specified by the Appellant/Applicant/Plaintiff, without fail.
Application disposed off.
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2014 (6) TMI 1074 - TELANGANA HIGH COURT
Dishonour of Cheque - insufficient funds - legally enforceable debt or not - rebuttal of presumptions - due service of statutory notice demanding payment within 15 days intimation of dishonour of cheque - complaint filed within one month after service of notice i.e., one month after waiting 15 days from date of service or deemed service or not - HELD THAT:- Rule 74 of the Postal Rules speaks, though there is no material to say that they got statutory force at least in guiding for internal governance regarding the service of the Registered letters, speaks regarding period of detention or treatment of undeliverable articles in post office that where the addressees of which are not known or have left the station of address without intimating their fresh address to the post office or are not found at the address given on articles are ordinarily kept in deposit in the head, sub or branch post office to which they are addressed, for a period of seven days after all enquiries to find the addressee, have proved unsuccessful.
There is a deemed service. Here, the question arises is what is the date of deemed service, is it 19.09.2005 or after end of the seven days of waiting for return. In the above Rule 74 of the Postal Rules what is required is to deposit for seven days and return thereafter to the sender. That is different from the deemed service for purpose of considering 15 days time under Section 138 N.I. Act.
As per the expression in C.C. Alavi Haji's case [2007 (5) TMI 335 - SUPREME COURT] there is a deemed service from continuous absence. For the purpose of deemed service, it is sufficient to say the date of intimation or the postman went to the address for delivery or absence of or unclaimed or refused. Here, for all practical purposes there is a registered letter posted duly to the correct address for endorsement by the sender. The postal authorities are agents of the sendee to deliver and if that is the case, irrespective of seven days waiting, otherwise required from the internal guidelines and instructions, leave about its statutory force to bind the parties, who sent the notice to whom, the first intimation was dated 19.09.2005 and from there the 15 days time commences, leave about the requirement of waiting for seven days for return back to the sender the cover. When such is the case, even it is reckoned from the date of return i.e., on 24.09.2005, as per the endorsement it is beyond 15 days of statutory waiting for payment for accrual of cause of action and 30 days for filing of the complaint.
The trial Court referring the judgment of Hon'ble Supreme Court in Saketh India Ltd., and others v. M/s. India Securities Limited and other [1999 (3) TMI 591 - SUPREME COURT] in this regard as per Section 12 of the Limitation Act and 8 and 9 of the Act, came to the conclusion that the complaint is beyond the limitation period. For this Court while sitting in appeal, there is nothing to interfere in saying the complaint was not filed within statutory time and thereby filed after expiry of the cause of action i.e., one month after accrual of cause of action and is barred by limitation.
The Criminal Appeal is dismissed.
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2014 (6) TMI 1073 - BOMBAY HIGH COURT
Applicability of Section 28 (iv) - Assessee received payment by various cheques for assigning development rights, balance sum was not received in terms of the Memorandum of Understanding, but did not make any payment, it did not come forward to complete the transaction either - Assessee did not show this amount of as income - HELD THAT:- The circumstances in which the Memorandum of Understanding was executed, the sum received have been noted. The property in question was shown as reserved in the development plan by Kalyan Dombivali Municipal Corporation. There were several efforts made to have these properties released. Memorandum of Understanding was not withdrawn nor cancelled.
In such circumstances, the Assessee continues to acknowledge the sum received and stated that it was a liability towards M/s. Highland Realities Pvt Ltd from the time the Memorandum of Understanding executed. It was thus of the view that it was obliged to return it. In these circumstances, both the Commissioner as well as the Tribunal found that Section 28(iv) will have no application.
We do not find that a larger controversy or question needs to be gone into and based on the contentions raised by Mr. Malhotra. The correctness of the view taken in the case of Ahuja [2007 (5) TMI 257 - ITAT BOMBAY-I] need not be considered in the circumstances, which have been noted in paragraph no.9 of the order passed by the Tribunal and equally by the CIT (Appeals). Hence, we are of the opinion that the findings of fact cannot be termed as perverse.
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2014 (6) TMI 1072 - CALCUTTA HIGH COURT
Process amounting to manufacture or not - what prompted the petitioner to surrender its registration as a dealer and switches over to apply for a registration as manufacturer? - suppression of facts or not.
It is tried to be contended that since the identity of the manufacturer of the product is disclosed in the prescribed form, the dealer losses the future business because of the direct contact with the manufacturer.
HELD THAT:- If the petitioner stood firm on its contention that it does not amount to manufacturing activities, the conduct of surrendering the registration as a dealer and obtaining a fresh registration as manufacturer amounts to suppression of facts and percolating false statements to the statutory authority. If the petitioner's stand appears to be correct, the process which was undertaken amounts to manufacturing of new product for which the registration was subsequently obtained then it leaves no ambiguity in arriving at the inference that the process undertaken by the petitioner amounts to manufacture and the excise duty applicable to such activities are attracted. It leaves no room for doubt in my mind that the petitioner is prevaricating his stand which suits him to wriggle out from the provisions, which affects adversely.
Had it been a case that the authority have raised a doubt and disputes over the process of dealing the material purchased by the petitioner, the proposition of law tired to be canvassed before this Court does not admit any quarrel. But in the instant case, the petitioner voluntarily approached the authority and surrendered his registration as a dealer and opted the registration as a manufacturer meaning thereby the petitioner itself treated the process to be a process of manufacture and, therefore, the authority has proceeded on the basis of the stand taken by the petitioner and issued the show-cause notice treating the transactions entered into during the relevant period when the petitioner held the registration as a dealer as manufacturing activities.
It is not in dispute that the so called final product sold by the petitioner in the market is well-known as such and there is no dispute as was raised in the noted report involved in the instant case. The ratio which could be culled out therefrom is that the excise duty is payable on the final product known in the market which in my opinion is no longer res integra.
The suppression signifies a conscious and deliberate act with an intention to gain something. Mere omission and failure to disclose cannot be brought within the expression ‘suppression of fact’. In the instant case, the petitioner made transaction of the caveatable inputs and passing of the ‘CENVAT’ credits and did not disclose the identity as manufacture. Such disclosure came voluntarily after March 2009 when the petitioner applied for registration as manufacturer after surrendering the registration as dealer. The intention to gain by such suppression is manifest and, therefore, the authorities did not commit any infirmity and/or illegality applying the extended period as enshrined under Section 11A(4) of the Central Excise Act, 1944.
Considering the conduct of the petitioner as shown before the authorities and the act by which the factum of manufacturing activities was suppressed during the period when the petitioner was having the dealer registration, this Court feels that the petitioner should be saddled with the costs to be paid to the department - the writ-petition is dismissed with exemplary costs assessed at Rs. 50,000/- to be paid within a week from date.
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2014 (6) TMI 1071 - ITAT AHMEDABAD
Set off of business loss earned from F & O trading activity - Denial of benefit of loss or deduction merely on the ground that the assessee has not claimed the same in the return of income - HELD THAT:- As in an assessment, AO is to compute total income of the assessee as per the provisions of the Income Tax Act. If any loss actually suffered by the assessee or any deduction which is legally allowable to the assessee and in relation to which all the details are available before the AO at the time of the assessment, then such loss or deduction is to be allowed by the AO and in fact the AO is duty bound to compute the total income of the assessee as per provisions of law and it cannot be appreciated that the AO will not allow the benefit of loss or deduction to the assessee merely on the ground that the assessee has not claimed the same in the return of income.
Our above view finds support from an old circular of CBDT bearing no. No. 14(XL-35) of 1955, dated 11-4-1955 wherein it was opined that “Officers of the department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him
As in view of the decision of the Hon’ble Supreme Court in D.P. Sandu Bros. Chembur (P) Ltd [2005 (1) TMI 13 - SUPREME COURT] the amount which has been deemed as income u/s. 69 is assessable as income from other sources and because of the same, it forms part of the total income of the assessee.
It is not in dispute that genuine business loss can be set off against the income which is assessable under the head ‘income from other sources’. We, therefore, do not find any error in the order of the Commissioner of Income Tax (Appeals). It is confirmed. The ground of appeal of Revenue is dismissed.
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2014 (6) TMI 1070 - MADRAS HIGH COURT
Attachment of property of immovable properties - seeking an order of interim injunction restraining the Respondent/Defendant, his men, servants, agents or anyone acting on his behalf or claiming under him from in any manner alienating or encumbering his immovable properties - HELD THAT:- When the Respondent/Defendant has created 'Equitable Mortgage' with the Appellant/Plaintiff, by means of deposit of title deeds (which fact is denied by the Respondent/Defendant), then, this Court is of the considered view that the Appellant/Plaintiff cannot invoke either the ingredients of Order 38 Rule 5 of the Civil Procedure Code or the ingredients of Order 39 Rule 1 and 2 of the Civil Procedure Code, because of the simple reason that the Respondent/Defendant cannot be prevented from dealing with his property just because the suit is filed. As a matter of fact, the provisions of Order 38 Rule 5 of the Civil Procedure Code and Order 39 Rule 1 and 2 of the Civil Procedure Code are not to be resorted to either as a matter of routine or in a mechanical way. Suffice it for this Court to point out that the aim of Order 38 Rule 5 C.P.C. is not to convert an 'Unsecured Debt' is a Secured Debt. Furthermore, when the Respondent/Defendant is said to have created 'Equitable Mortgage' in favour of the Appellant/ Plaintiff, then, this Court is of the considered view that the Appellant/Plaintiff is not entitled to claim reliefs under Order 38 Rule 5 C.P.C. and Order 39 Rule 1 and 2 C.P.C.
Appeal dismissed.
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2014 (6) TMI 1069 - SUPREME COURT
Interpretation of precise connotative effect of Punjab Police Rules, 1934 (the Rules), specially Rule 13.7 of the Rules - promotion of the constables in Chandigarh Police to the post of Head Constable - amendments that were incorporated on 4.3.1982, and another incarnation of the said amendments vide amendment dated 6.2.1988 - HELD THAT:- In the case at hand, we are really concerned with the interregnum period between 4.3.1982 and 17.6.1988. The tribunal, on the first occasion, while quashing the order dated 27.6.1988 which was a resultant order after the amendment dated 17.6.1988, had clearly laid down that the authorities were required to prepare a fresh list for sending the Constables to the Lower School Course in accordance with the pre-amended Rule 13.7 as it existed prior to 17.6.1988 so far as the vacancies of Head Constables which had come into existence prior to the date of aforesaid notification and the criterion to be adopted by them could be seniority-cum-merit as prescribed therein. It was also unequivocally ruled that it would be open to the respondents to act in accordance with the amended Rule in respect of vacancies/posts of Head Constables which might have occurred subsequent to coming into force of the amended Rule or which may fall vacant thereafter.
The decision of the tribunal, on the first round, related to the vacancies of Head Constables that had come into existence prior to the date of notification, i.e., 17.6.1988. Learned counsel for the Union Territory of Chandigarh in his written note of submissions has stated that 50 vacancies were found to have occurred before amendment and, accordingly, a list was prepared in order of seniority as per the provisions of unamended rules. At this point of time, it is necessary to clear the maze that as far as this exercise is concerned there was no cavil. The dispute arose when the authorities on 28.10.1988 prepared a list of eligible Constables/ad hoc Head Constables who fulfilled the prescribed conditions to sit in the competitive examination to be held in January, 1989. The said action of the authorities compelled the present applicants to file three Original Applications challenging the validity of the Rule and quashment of the order dated 28.10.1988 whereby the list was drawn up of the eligible candidates. As has been stated hereinbefore, the tribunal on 31.3.1989 modified its original interim order and directed that selection of the Head Constables may be made and given effect to subject to final decision of those Original Applications.
The cornerstone of the impugned order dated 28.9.1998 is the order dated 8.1.1990. If this is allowed to stand, it would tantamount to palpable injustice - the order is absolutely unsustainable - Appeal dismissed.
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2014 (6) TMI 1068 - ITAT CHENNAI
Exemption u/s 11 - whether interest free loan given to M/s. SPK MAC Charitable Trust is in violation of section 11(5) or 13(1)(d) or 13(1)(c) and held that there is no such violation and sustained the order of Commissioner of Income Tax (Appeals) in allowing the claim of the assessee u/s 11 ? - HELD THAT:- Perused orders of lower authorities and the decision of this Tribunal relied on and find that the issue in appeal has been decided in favour of the assessee in assessee’s own case for the assessment year 2008-09 [2013 (8) TMI 1166 - ITAT CHENNAI] by order wherein the co-ordinate Bench of this Tribunal sustained the order of the CIT (Appeals) in allowing the claim of exemption under section 11.
We direct the AO to allow exemption claimed by the assessee under section 11 - Appeal of the assessee is allowed.
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2014 (6) TMI 1067 - ITAT CHANDIGARH
Disallowing the Interest paid to bank on notional basis being the amount Used by one of the partners - nexus between the withdrawals by Partner and usage of borrowed funds - AO noted that Partner had used borrowed funds for his personal use by withdrawing capital from firm’s funds and interest on the said borrowed capital used for personal purpose by way of withdrawal by Shri Kanwal Khurana, partner was disallowed - case of the revenue was that the interest bearing funds were used by the assessee to advance interest free funds to one of the partners who in-turn had utilized the same for personal purposes - HELD THAT:- The cumulative capital balance of the partner is negative figure. Consequently, the precedent relied upon by the ld. AR for the assessee is not applicable to the facts of the present case where one of the partner has overdrawn his capital which is over and above the cumulative capital balance (credit) of the other partners and where the assessee had borrowed interest bearing funds, then it cannot be held that there was no diversion of funds for non-business purposes.
In view thereof, we hold that the interest relatable to such capital balances over drawn by the partner Shri Kanwal Khurana is to be considered for computing the disallowance of interest under section 36(1)(iii) of the Act.
Assessing Officer is directed to recompute the interest expenditure relatable to such amounts by taking the day to day balance of all the three partners and also by ignoring the profits credited to the partners’ capital account at the close of the year. The Assessing Officer shall afford reasonable opportunity of hearing to the assessee and recompute the disallowance in the hands of the assessee in accordance with our directions. The ground of appeal raised by the assessee is thus, allowed for statistical purposes.
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2014 (6) TMI 1066 - ALLAHABAD HIGH COURT
Classification of goods - Rusks - covered by Schedule 1 of the Employees Provident Funds & etc. Act, 1952 or not - HELD THAT:- The word 'Rusks' has been defined in Concise Oxford English Dictionary Eleventh Edition, Revised (Indian Edition) to mean a dry biscuit or a piece of twice-baked bread especially as prepared for use as baby food - Similar is the meaning attached to the word 'Rusks' in Collins Cobuild Advanced Learner's English Dictionary, New Edition as hard, dry biscuits that are given to babies and young children.
Thus, Rusks can either be treated as biscuit or a bread both of each are covered under the above entry of Schedule 1 of the Act. Accordingly, any industry manufacturing Rusks would be covered by the provisions of the aforesaid Act.
Petition dismissed.
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2014 (6) TMI 1065 - BOMBAY HIGH COURT
Validity of pledge - appellant's case is that despite having repaid the loans to respondent Nos. 1 and 2, respondent Nos. 1 and 2 have not returned the shares - pledge created in accordance with the provisions of the Depositories Act, 1996 or not - whether the alleged pledge can affect the rights of respondent No. 3 who is a third party without notice of the pledge, rending the pledge invalid qua the third party? - HELD THAT:- The intention of the Legislature was obviously to ensure that third parties have notice of a pledge. The value of notice of a pledge of securities is too obvious to warrant any discussion. It safeguards innocent third parties who would otherwise have no means of being aware of a pledge especially of dematerialized shares. The provisions of the Depositories Act and in particular section 12 thereof and the Regulations in particular Regulation 58 are salutary as they introduce transparency and certainty in the securities market. There is no other discernible reason for the Legislature having introduced these provisions. If a pledge could be created in any manner, there was no reason for the Legislature to have provided for a particular manner alone for creating a pledge of shares in a dematerialized form.
The Indian Contract Act does not prescribe the manner in which a pledge is to be created. It does not stipulate that a pledge can be created only in a particular manner. The Depositories Act, however, prescribes the manner in which a pledge must be created. Even assuming that the beneficial owner is entitled to create a pledge in a manner otherwise than as required by the Depositories Act, he must, however, in any event, also create the pledge in the manner prescribed by the Depositories Act. If he fails to do so, he deprives a third party of the benefit of notice of a pledge rendering the pledge invalid qua third parties. Such a provision is not in derogation of the provisions of the Indian Contract Act but in addition thereto.
Section 176 of the Contract Act deals with the right of a pawnee upon the default in the payment of the debt or performance of the promise. Thus, even assuming that section 176 of the Contract Act applies to pledges created under the Depositories Act, 1996, and that respondent Nos. 1 and 2 failed to exercise their rights as pawnees in accordance with the provisions of section 176 of the Contract Act, it would make no difference as far as respondent No. 3 is concerned for two reasons. Firstly, the appellant failed to create the pledge in accordance with the provisions of the Depositories Act. Such a party cannot take advantage of it's own wrong - Respondent No. 3 was not bound to give any notice to the appellant of its proposed sale of the shares kept with it as margin by respondent Nos. 1 and 2.
The appellant itself stated that on 29th June, 2013 respondent Nos. 1 and 2 sold 78,000 shares of Flexituff for an aggregate amount of Rs. 1.76 crores, which was objected to by the appellant at the meeting held on 29th June, 2013. The appellant further stated that at the meeting it had requested respondent Nos. 1 and 2 to return the balance shares but that respondent Nos. 1 and 2 failed to do so. Despite the same, the appellant did not adopt any proceedings or take any steps to protect or enforce its rights and interests in respect of the said shares. Thereafter in September, 2013 a further 40231 shares of Flexituff was sold by respondent Nos. 1 and 2. The appellant stated that the meetings were held on 15th October, 2013 and 28th October, 2013 with respondent Nos. 1 and 2 whereat it once again objected to the sale and requested respondent Nos. 1 and 2 to return the excess shares. The suit was filed on 29th October, 2013. Thus even after the meeting of 15th October, 2013, the appellant waited for another fortnight before adopting the proceedings. In matters such as these especially in the facts and circumstances of this case, where the rights of third parties are involved and can be affected by any delay, the proceedings ought to have been adopted immediately. As noted earlier, on 28th and 29th October, 2013 the transfer of the balance shares have already taken place - If injunctions are granted in such cases, it would adversely affect the functioning and sentiment of the securities market. It would derail the entire system of maintaining the margin by utilizing securities. It would require the persons to deposit cash or some other equivalent security. This is on account of the uncertainty that would be created regarding the value of the securities deposited/furnished as margin.
Appeal dismissed.
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2014 (6) TMI 1064 - MADRAS HIGH COURT
Direction to 3rd respondent to issue passport to the petitioners - Section 6(2)(f) of the Passports Act 1967 - HELD THAT:- This Court finds that the applications submitted by the petitioners for passport were not considered by the 3rd respondent for the reason that FIRs are pending against them. The Superintendent of Police, Tirnelveli, has filed counter affidavits stating that First Information Reports have been filed against the petitioners for the alleged offences, stated supra, since they are involved in the agitation against the Koodankulam Nuclear Project. So far as the petitioner in W.P. (MD).No.8349 of 2014 is concerned, the criminal case has been registered under Sections 147, 148, 294(b), 353 & 307 IPC. Since the FIRs are pending against the petitioners, the 3rd respondent has not considered the applications of the petitioners, by placing reliance on Section 6(2)(f) of the Passports Act, 1967.
It is clear that unless the Judicial Magistrate takes cognizance of the offence, on filing of charge-sheet on completion of investigation against the applicant, it cannot be said that the proceedings are pending before the Criminal Court. Therefore, the 3rd respondent cannot mechanically refuse to issue passport to the petitioners, merely for the reasons that the FIRs are pending against the petitioners. On receipt of the application for passport, the 3rd respondent shall consider the same and pass appropriate orders.
The writ petitions are allowed and a direction is issued to the 3rd respondent to consider the applications of the petitioners and to pass appropriate orders regarding issuance of passports to them, in accordance with law, within a period of four weeks from the date of receipt of a copy of this order.
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2014 (6) TMI 1063 - ITAT CHENNAI
Deduction u/s 43B - disallowance of prior period interest expenses as payable to public financial institutions/ Governmental bodies - HELD THAT:- We are not in agreement with the Commissioner of Income Tax (Appeals) as prior period interest was paid by the assessee to the Government of Tamil Nadu and Government of Tamil Nadu is not a public financial institution / governmental body which comes under the provisions of section 43B of the Act. The co-ordinate Bench of this Tribunal in the case of The Kallakurichi Co-op. Sugar Mills Ltd. (supra) observed that any amount payable to a Government is not hit by section 43B of the Act. Thus, the observation of the Commissioner of Income Tax (Appeals) that these interest payments made to Government of Tamil Nadu are hit by the provisions of section 43B of the Act is not correct and reversed. However, we agree with the view of the Commissioner of Income Tax (Appeals) that prior period interest liability crystallized on 28.3.2008 when the payment was made to the Government of Tamil Nadu during the financial year 2007-08 relevant to the assessment year 2008- 09 and is allowable in the assessment year 2008-09.
Addition u/s 43B of the Act being interest paid to Government of Tamil Nadu - AO observing that the said amount was only a provision for payment and as per the provisions of section 43B of the Act any claim of interest payments has to be allowed only on actual payment even though the loan is from public sector financing bodies, therefore Assessing Officer disallowed the said interest and added back to the total income - HELD THAT:- As held that interest paid to Government of Tamil Nadu is not hit by the provisions of section 43B of the Act. In the circumstances, we are of the considered view that this matter should go back to the Assessing Officer to verify as to whether assessee paid the interest of ₹ 183.90 lakhs to Government of Tamil Nadu or to any other financial institution or it is only a provision made. Needless to say if this amount is paid to Government of Tamil Nadu, the provisions of section 43B of the Act have no application to such payments. The Assessing Officer shall examine the issue afresh in accordance with law after providing adequate opportunity to the assessee.
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2014 (6) TMI 1062 - ITAT CHENNAI
Addition u/s 43B - interest payable, which was not paid during the year - interest payable to the Government of Tamilnadu and M/s Infrastructure Leasing and Financial Services - stand taken by the Revenue is that the interest to be paid by the assessee had not been crystallized in the year under consideration - HELD THAT:- We find that the issue involved in this appeal has already been considered by the Tribunal in assessee’s own case for the assessment year 2008-09 [2012 (8) TMI 1202 - ITAT CHENNA] admittedly, neither the Government of Tamil Nadu nor Infrastructure Leasing & Financial Services Ltd. IL&FS fall within the definition of Public Financial Institution. Hence, the learned Commissioner of Income Tax (Appeals)’s premise that Explanation 3(c) of Section 43B(d) is applicable, is erroneous. As we have already held earlier that as per the reading of loan agreement, the interest amount has very much accrued and the liability has crystallized. In this view of the matter, we hold that order of the authorities below is liable to be set aside and assessee's claim be allowed
DR could not controvert the above findings of the Tribunal and he could not bring any material on record to show that the above order of the Tribunal was varied in appeal by any higher forum. We, therefore, respectfully following the above quoted order of the Tribunal, confirm the order of the CIT(A) and dismiss the grounds of appeal of the Revenue.
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2014 (6) TMI 1061 - RAJASTHAN HIGH COURT
Seeking grant of Bail - evasion of huge Central Excise - allegation is that petitioner has not got himself registered under the Central Excise Act and got registered after search was conducted - HELD THAT:- Taxes play vital role in the development of a country and are needed not only for infrastructural purposes but also social medical and other needs of a country. Tax dodgers and evaders are certainly required to be dealt with heavy hands and need no sympathy and Revenue departments are well within their rights to nab tax dodgers and evaders of taxes. This Court do not support tax evaders and tax dodgers. Further, in such cases, where tax evasionis prima-facie of very high value, the question of bail should be considered seriously and it should not be granted as a matter of course. Tax evasion of high value certainly jeopardizes the entire economy of the country and is an economic crime of serious magnitude.
It is also to be noticed that evasion of taxes whether Income Tax, Central Excise, Service Tax or any other taxes all come in the category of economic offences and the recent trend of decisions in the matter of bail, in this country, has been to deal with economic offences seriously but prima-facie in this case since the principal amount of Central Excise stands deposited and admitted to have been received by the respondents before approaching this Court therefore, without expressing any opinion on merits/demerits of the case, the accused-petitioner deserves to be enlarged on bail under Section 439 Cr.P.C.
This bail application is allowed and it is directed that the accused petitioner Suresh Sharma S/O Shri Geegraj Jangid be released on bail under Section 439 Cr.P.C., subject to conditions imposed.
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