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Showing 21 to 40 of 1437 Records
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2015 (3) TMI 1427
Seeking de-registration of aircrafts (the details qua which I shall provide hereafter), upon termination of the lease agreements - HELD THAT:- The existence of lien under Article 39(1)(a) of the Convention has nothing to do with the remedy which the petitioners seek to avail of under Article IX of the Protocol. Deregistration of the aircraft is not, hampered by the existence of liens, if any, under the Municipal Law of the Contracting State. The liens, as indicated above, under Article 39(1) (a) shall obtain if so provided under the Municipal Law. The extent of the lien shall also be governed by the Municipal Law and not by the Convention.
One cannot quibble with the proposition that a court cannot issue a writ of mandamus where, an authority, is not required to act in a particular manner by express provisions of law. This dicta finds reflection even in Paragraph 12 of that judgement rendered in the case of UP SRTC & Anr. Vs. Mohd. Ismail & Anr. [1991 (4) TMI 437 - SUPREME COURT] - The obligation, cast on DGCA under clause (iv), sub-rule (6) of Rule 30 of the Aircraft Rules requires it to de-register an aircraft if, the lease agreement qua the aircraft object is not in force. Notably, like under clause (iv), each of the circumstances set out in subrule (6) are independent of each other. It may be, in a given situation that, more than one circumstance is attracted.
A bare perusal of the unamended clauses of sub-rule (6) of Rule 30 would show that all that the DGCA is required to do is to ascertain whether circumstances exist, once it is found circumstances exist as contemplated in the relevant clause, and the DGCA is found wanting, a writ of mandamus could issue to compel performance. The fulfilment of ministerial act and, therefore, vesting of a minor discretion in that behalf, if it can be called one ought not to deter a court from not issuing a writ of mandamus.
The learned ASG was not able to inform as to whether or not, there are liens obtaining vis-a-vis the aircraft objects under the Municipal law; as contemplated under Article 39(1) of the Convention. The difficulty has been compounded by the fact that the DGCA, has not filed its return in the matter. Therefore, the DGCA will, take a decision in the matter qua liens, if any, obtaining. The decision in the matter will be taken by the DGCA within two (2) weeks from today.
Thus, DGCA will, forthwith, de-register the aircraft objects - petition disposed off.
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2015 (3) TMI 1426
Bribe - possession of assets disproportionate to the known sources of income - High Court took the view that Rules 14, 17 and 19 of the M.P. Civil Services (Conduct) Rules, 1965 prohibit the public servant from accepting gifts or loan except in the manner prescribed therein - HELD THAT:- The expression “known sources of income” in Section 13(1) (e) of the Act has two elements, first the income must be received from a lawful source and secondly the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah [2008 (10) TMI 728 - SUPREME COURT], while dealing with said expression, it was observed that For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (1) his property, or (b) his investment.
In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant.
In D.S.P Chennai Vs. K. Ibasagarain [2005 (12) TMI 50 - SUPREME COURT], the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.
There is no violation of Section 13(1)(e) read with Section 13(2) of the Act. The judgment and order in appeal is set aside and the appellant is acquitted of the charges levelled against him - Appeal allowed.
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2015 (3) TMI 1425
Maintainability/scope of arbitration proceedings - whether the dispute for recovery of possession and mesne profits is beyond the scope of arbitration clause or not - non-filing of original agreement or duly certified copy of the agreement, which consists of arbitration clause u/s Section 8(2) of the Act - ambiguity in the language used in the arbitration clause in the agreement or not.
Whether the arbitration clause covered reference of the dispute relating to delivery of possession and mesne profits, if not, is the impugned order be sustained?
HELD THAT:- The clause referred to in the earlier paras referring to arbitrator is unambiguous and the intention of the parties need not be looked into, since, intention would not prevail when the language used in the condition is unambiguous. Therefore, on strict construction of the condition relating to reference to arbitration, the trial Court rightly declined to grant the relief to the petitioner.
The case on hand would not cover any of the circumstances to exercise discretion to grant relief. That apart there are no illegal exercise or failure to exercise the power conferred on the trial Court in negating the relief. Hence, it is not a fit case for interference of this Court.
When the agreement is not in writing and it is only an understanding, the alleged condition of agreement for reference would not fall within the ambit of Section 7 of the Act. In any view of the matter, it is for the revision petitioner to file, if there is an understanding in writing duly signed by both parties along with the petition. However, it is wholly unnecessary to decide about maintainability of the petition in view of bar to entertain petition under Section 8(2) of the Act, as the petitioner himself admitted about the understanding and that apart it is already concluded that this Court cannot exercise its discretionary power under Section 227 of the Constitution of India to interfere in the order in question.
There are no ground or legal infirmity which calls for interference of this Court, devoid of merits and deserves to be dismissed - petition dismissed.
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2015 (3) TMI 1424
Dishonor of Cheque - seeking stay on proceedings - whether proceedings under section 138 of the Negotiable Instruments Act has to be stayed under section 446 of the Companies Act, 1956, which is replaced by sections 279 and 280 of the Companies Act, 2013?
HELD THAT:- This question has been considered by the Division Bench of this court in Jose Antony Kakkad v. Official Liquidator, High Court of Kerala [2000 (1) TMI 866 - HIGH COURT OF KERALA] and observed that, the proceedings under section 138 of the Negotiable Instruments Act cannot be stayed invoking the power under section 446 of the Companies Act, 1956.
As regards the second accused is concerned, if the petitioner can convince the court below that, he is unable to move on account of his illness and he is unable to understand things, then court below is directed to consider that application and consider the question of jurisdiction, if it is raised in view of Dashrath Rupsingh Rathod v. State of Maharashtra [2014 (8) TMI 417 - SUPREME COURT] in his absence and he may be permitted to appear through counsel and pass appropriate order on that aspect in accordance with law.
As regards the third accused is concerned, if she surrenders before the court below and moves for bail, then court below is directed to recall the warrant and after granting bail, permit her also to represent through counsel and consider the question of maintainability in view of Dashrath Rupsingh Rathod v. State of Maharashtra [2014 (8) TMI 417 - SUPREME COURT] decision of the hon'ble Supreme Court.
Petition dismissed.
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2015 (3) TMI 1423
Entitlement to get the suit property converted from leasehold to freehold - suit for specific performance - HELD THAT:- In the suit for specific performance filed by respondent-Gaurav Kukreja and his father-Lekh Raj Kukreja, DDA was not made a party to the suit despite the fact that it was within their knowledge that the property is a leasehold property under the control of DDA and cannot be disposed of without obtaining a prior permission from the DDA. In terms of Section 15(a) of the Specific Performance Act 1963, the suit for specific performance can be filed by “any party” to the contract - In the instant case, suit for specific performance was filed by the respondent and his father who admittedly were not the parties to the agreement to sell.
The suit for specific performance is a collusive suit, where the respondent and his father used the process of the court to get rid of the stamp duty, registration charges and unearned increase payable to DDA.
Main contention of the respondent is that he is a decree holder for specific performance and even going by the ratio of Suraj Lamp & Industries (P) Ltd.’s case [2009 (5) TMI 1012 - SUPREME COURT], the respondent is at a higher footing than a holder of Power of Attorney and therefore the respondent is entitled to have conversion of the land. As pointed out earlier, the suit for specific performance, in our view, is a collusive one and therefore cannot confer any right upon the respondent to claim conversion.
On the date of filing of the writ petition, the respondent was neither a holder of a power of attorney nor had any subsisting right in the suit property and while so, the High Court was not right in holding that the respondent is entitled to apply for conversion of the property. Dehors the scheme of conversion, the respondent is not entitled to apply for conversion of the property. The respondent does not fall within the ambit of Clause 13 of the Conversion Scheme and therefore the impugned order of the High Court cannot be sustained and is liable to be set aside.
Appeal allowed.
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2015 (3) TMI 1422
Rectification of mistake u/s 154 - Addition u/s 68 - HELD THAT:- Section 68 stipulates that any unexplained sum found credited in the books of the assessee for any previous year, then the same may be taxed as income of the assessee for that previous year. Section 68 can only be invoked if the loan has been taken or the sums have been credited in the books in the relevant previous year for which assessment is being made and not the loans taken in the earlier years.
From the income tax records, it is evident that this loan is coming forward from last several years and is reflected in the balance sheet of the assessee filed for the earlier years along with the return of income. All these records are available with the assessing officer. The mistake apparent from record does not mean the assessment order itself but the records which are available with the assessing officer.
Though the assessee could not furnish the confirmation of the loan and other evidences but such a loan could not have been added in the A.Y. 2005-06 as the same was taken in the earlier years and is being carried forward. In this year it is appearing balance of the current year. Legally such an addition could not sustained in this year and therefore addition made by AO u/s 68 is a legal mistake, which can be rectified within the ambit and provisions of section 154. The grounds raised by the assessee is treated as allowed.
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2015 (3) TMI 1421
Substantial question of law - disallowance of interest as proposed by AO u/s 36(1)(iii) - as stated all the questions of law have not been answered by any judgment of this Court - HELD THAT:- We have perused the questions of law in Income Tax Appeal [2015 (12) TMI 1881 - BOMBAY HIGH COURT] In the case of same assessee, on similar question Nos.1 & 2, the Tribunal found that loans and advances given by the assessee company to its subsidiary company was raised for the assessment year 1989- 90 and it was decided in favour of the assessee. In the present case, we are concerned with the assessment years 1998-99 to 2002-03. The Tribunal has consistently applied the ratio of its decision rendered for assessment years 1989-90 and assessment year 1997-98 [2013 (2) TMI 601 - ITAT MUMBAI]. We do not find that there is any change in the factual position. The revenue may have preferred an appeal in this Court against the Tribunal's order for those assessment years, but no record of any appeal having been admitted on the questions of law proposed in the present appeal has been produced before us.
As we admit these appeals on the following substantial question of law:-
“ Whether on the facts and in the circumstances of the case and in Iaw, the ITAT was correct in allowing deduction under section 80HHC with regard to meals supplied to foreign air lines ? ”
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2015 (3) TMI 1420
Disallowance u/s 54F - Partial addition on the alleged ground that the appellant has invested the part of the capital gain towards the construction of residential house of which the land is owned by her spouse - HELD THAT:- As purpose of section 54F is that new residential house need not be purchased by the assessee in her own name. In the present case, the assessee has constructed a house on a plot owned by her husband and therefore, entire investment having come out of sale proceeds of the plot sold by the assessee and not from anywhere else. The assessee’s case is covered by the decision in the case of CIT vs. Kamal Wahal [2013 (1) TMI 401 - DELHI HIGH COURT] and CIT vs. Ravinder Kumar Arora [2011 (9) TMI 343 - DELHI HIGH COURT] which has been dealt in the case of CIT vs. Kamal Wahal (supra) and decision of the Hon’ble Punjab & Haryana High Court, in the case of CIT vs.Gurnam Singh [2008 (4) TMI 28 - PUNJAB AND HARYANA HIGH COURT]
In view of the above discussion, the ld. CIT(A) is not justified in not allowing the claim of the assessee. Accordingly, the order of the ld. CIT(A) is reversed and the AO is directed to allow the claim of the assessee. Thus, the sole ground taken by the assessee is allowed.
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2015 (3) TMI 1419
Exemption u/s. 11 - charitable activity u/s 2(15) - Whether CIT(A) erred in directing the AO to allow benefit of exemption u/s. 11 to the assessee when the activities of assessee are akin to those of a mutual association and do not fall within the definition of “charitable purpose” as per section 2(15)? - HELD THAT:- As held that the assessee is a charitable institution and duly recognized u/s. 12A therefore, the income has to be computed in accordance with the provisions of Sec. 11 of the Act. Respectfully following the earlier years order [2014 (11) TMI 379 - ITAT MUMBAI] we direct the AO to compute the total income of the assessee in terms of Sec. 11 to 13 of the Act. This ground of the Revenue is dismissed.
Set off and carry forward of deficit of earlier years - We find that this issue was considered by the Hon’ble Bombay High Court in the case of Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] held that Income derived from the trust property has also got to be computed on commercial principles and if commercial principles are applied then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year in which adjustment has been made having regard to the benevolent provisions contained in Se. 11 of the Act and that such adjustment will have to be excluded from the income of the Trust u/s. 11(1)(a) of the Act. Our view is also supported by the judgement of the Gujarat High Court in the case of CIT Vs Shri Plot Swetamber Murti Pujak Jain Mandal [1993 (11) TMI 17 - GUJARAT HIGH COURT]
Revenue appeal dismissed.
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2015 (3) TMI 1418
Nature of expenses - Service charges/ Technical advisory and management fee - services availed from M/s. United Breweries Ltd. etc are technical knowhow etc in its nature, where the benefits are enduring in nature and hence constitutes capital expenditure - AO treated these expenses as capital expenditure and disallowed from the revenue expenditure and allowed depreciation @ 25% as applicable to intangible assets - HELD THAT:- The Tribunal has considered the issue in appeal [2013 (2) TMI 716 - ITAT CHENNAI] for the assessment year 2008-09 and decided the issue in favour of the assessee.
Depreciation on intangible assets - HELD THAT:- The present assessment years under consideration i.e. assessment years 2003-04 and 2010-11since the facts are identical and the issue is recurring one, the ld. CIT(A), by following the above decisions of the Tribunal allowed the depreciation claim of the assessee for the assessment years 2003-04 and 2010-11. CIT(A), while deciding the issue has considered the entire issue of depreciation and also extracted the order of the ld. CIT(A) for the assessment year 2008-09 [2013 (2) TMI 716 - ITAT CHENNAI]
Allowability of sales promotion expenses - HELD THAT:- CIT(A) after considering the entire facts of the case, came to the conclusion that there is possibility of unreasonableness and excessive claim and disallowed 7.5% of total sales promotional expenses of Rs. 14,03,35,927/- and allowed only Rs. 12,39,29,825/- [ Rs. 13,44,55,019 – Rs. 1,05,25,194]. We find that the order passed by the CIT(A) is just fair and reasonable by considering all relevant materials and we find no infirmity in the order passed by the ld. CIT(A). Accordingly, the ground raised by the Revenue is dismissed.
Possibility of excess claim to the extent of 7.5% in sales promotion expenses claimed by the assessee - HELD THAT:- During the hearing of the appeal assessee has not able to controvert the findings of the ld. CIT(A) towards the disallowance except stating that the entire claim of the assessee ought to have been allowed by the ld. CIT(A). We find that, after examining all the details filed by the assessee, CIT(A) came to a reasonable conclusion that the claim of the assessee is excessive to the extent of 7.5%. We find no reason to interfere with the order passed by the ld. CIT(A) and accordingly, the ground raised by the assessee is dismissed.
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2015 (3) TMI 1417
Murder - allegation is that the deceased was proceeding in his car, the assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased - Section 319 of the Code of Criminal Procedure - whether on the facts mentioned earlier the Sessions Court is obliged to summon PW64 as an additional accused exercising the power Under Section 319 of the Code of Criminal Procedure? - HELD THAT:- The Section authorizes the Court making any inquiry into or conducting the trial of an offence to "proceed" against any person (other than the accused facing trial) subject to two conditions (i) that from the "evidence" it appears to the Court that such a person "has committed any offence", and (2) that such a person "could be tried together with the accused."
When could a person appearing to have committed an offence "be tried together with the accused" already facing trial? - HELD THAT:- As rightly noticed by the High Court, the only clause if at all relevant for the purpose of the present case is Section 223(d) which stipulates that persons accused of different offences committed in the course of the same transaction could be charged and tried together - It is admitted on all hands that except the evidence of PW64 and his statement Under Section 164 Code of Criminal Procedure there is no other evidence on record of the Sessions Court to indicate that PW64 has committed any offence. Both the evidence and the statement Under Section 164 Code of Criminal Procedure of PW64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW64 was a party at least at the initial stage. According to PW64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would legally absolve him of guilt are questions with which we are not concerned for the purpose of this case.
Therefore, if law permits the use of the content of either the evidence given at trial or the statement made Under Section 164 Code of Criminal Procedure by PW64, he could be tried for an offence punishable Under Section 120B Indian Penal Code. Because, on his own admission, PW64 agreed to kill Vijayan for a price and accepted money from A2 towards the part payment of such price and also drafted A3 into the conspiracy.
Before this Court, the main argument was that "Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since Section 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the Appellants. The breach of the last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court". - In substance, this Court held that once the prosecution chose to examine Ethyl Wong as a witness she was bound to answer every question put to her. In the process, if the answers given by Ethyl Wong are self-incriminatory apart from being evidence of the guilt of the others she could not be prosecuted on the basis of her deposition in view of the proviso to Section 132 of the Evidence Act - This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined Under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself.
Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee Under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss, the policy Under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso grants immunity to such a witness by declaring that "no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding".
The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.
The High Court rightly refused to summon PW64 as an accused to be tried alongwith the Appellant and others - Appeal disposed off.
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2015 (3) TMI 1416
Theft of electricity - institution of prosecution - whether the owner of the factory was the petitioner where the electricity theft was detected? - allegation is that petitioner was possessor and occupier of the premises in question - HELD THAT:- This Court has gone through the provision of Section 391 Cr.P.C. which provides that while dealing with appeal, if the Appellate Court thinks additional evidence is necessary, it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate.
The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391 Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C.
In the present case, it is apparent from the record that FIR was registered on 30.03.2000; charge sheet was filed on 12.07.2000; judgment of conviction was passed on 12.08.2004; order on sentence was passed on 26.08.2004; criminal appeal filed by the petitioner was dismissed on 16.12.2006 and now we are in the year 2015. The learned Additional Sessions Judge released the petitioner on probation for a period of three years, which period is already complete.
The compensation amount of Rs.4,00,000/- is reduced to Rs.2,00,000/-, subject to adjustment of amount already deposited. In case of non-payment of remaining compensation amount by the petitioner, same would be recovered as fine - revision petition is disposed off.
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2015 (3) TMI 1415
Disallowance retention money as well as on licence fee - case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) r.w.s.254 was framed - CIT-A deleted the addition - HELD THAT:- As decided in NARAN LALA PVT. LTD. VERSUS THE D.C.I.T., NAVSARI CIRCLE, NAVSARI AND VICE-VERSA [2011 (6) TMI 1019 - ITAT AHMEDABAD] complete facts of the case were not examined and verified including the amount if any incurred by the assessee for business purpose out of the retention amount.
After passing of the impugned orders, there is a change on the matter in issue and the points have now been decided in favour of the assessee which is also not disputed by the learned DR. However, the authorities below have no occasion to examine the facts of the case in the light of the above decisions cited by the learned Counsel for the assessee. Both the parties agreed that the matter may be remanded to the file of the AO for reconsideration of the issue in the light of the decision delivered by the Hon'ble Punjab & Haryana High Court [2009 (11) TMI 995 - PUNJAB AND HARYANA HIGH COURT] and the Hon'ble Supreme Court (2009 (5) TMI 16 - SUPREME COURT). We find force in the submissions of both the parties that the matter requires reconsideration in the light of the above decisions.
Thus the issue is restored back to the file of AO to decide the same - Appeal of the Revenue is allowed for statistical purposes.
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2015 (3) TMI 1414
Permission for withdrawal of SLP - petitioners has submitted that the matters have been settled out of the Court - HELD THAT:- Permission is granted.
The Special Leave Petitions are, accordingly, disposed of as withdrawn.
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2015 (3) TMI 1413
Assessment in respect of the company which was amalgamated u/s 391/394 of the Companies Act - Assessment in name of the transferor or amalgamating company - corporate death of an entity upon amalgamation - Curable defect u/s 292B - HELD THAT:- Revenue was informed that the original assessee (i.e. the transferor under the scheme of amalgamation) had been dissolved pursuant to the amalgamation scheme and approved by the Court and that consequently the return for AY 2009-2010 had not been filed by the original assessee. A reply to the Revenue’s questionnaire was given by the assessee on 12th November, 2010, again bringing to the notice of the authorities that the scheme of amalgamation had dissolved the original assessee in whose shoes the transferee company had completely stepped in.
Despite this, the AO finalized the assessment u/s 153C, in respect of the original assessee. In appeal it was successfully contended on behalf of the assessee – which was represented by the transferee that the assessment under Section 153C was invalid since it was completed in respect of a non-existent entity. This order was appealed against by the Revenue unsuccessfully; the ITAT rejected its appeal.
We notice that the ITAT followed the ruling of this Court in M/s. Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] subsequently followed in other rulings (refer to Additional Commissioner of Income Tax vs. Micra India Pvt. Ltd [2015 (5) TMI 613 - DELHI HIGH COURT] - No substantial question of law arises.
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2015 (3) TMI 1412
Seeking the relief against Look Out Circular(LOC) issued - petitioner is now required to go to London in order to save his job, but on account of LOC the petitioner was not permitted to leave the country by the Immigration Authorities - HELD THAT:- Petitioner has thereafter made a detailed representation dated 19.12.2014 before the Superintendent of Police, Guntur, pointing out that he has already exceeded his stay in India beyond 180 days, which is the maximum permissible period and as such, he cannot remain in India and required to return to London as his salary is being with held by his employer and that in view of the fact that the petitioner has no intention to obstruct the hearing of the cases and he has already surrendered before the Court voluntarily, requested that the LOC to be taken back. However, as no action is being taken, the present writ petition is filed. The instructions received earlier by the learned Government Pleader however show that on the basis of opinion of Assistant Public Prosecutor, the Superintendent of Police declined to take any action on the request of the petitioner for withdrawal of LOC. Since such a reason was not acceptable to this Court, the Superintendent of Police was directed to file a counter.
In the present case, petitioner has already made an appropriate representation before the Superintendent of Police as referred to above. However, apparently, the Superintendent of Police is not inclined to withdraw the said circular - Since no purpose would be served by directing the petitioner to approach the Superintendent of Police for the purpose of withdrawal of LOC, this writ petition is disposed of permitting the petitioner to move the Court of Special Judicial Magistrate of First Class, Prohibition & Excise, Guntur - Petition disposed off.
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2015 (3) TMI 1411
Deduction u/s 80P - CIT(A) treating the receipts on account of interest from employees, interest on savings, dividend and income from no dues certificates as income from banking business activities and consequent allowance of deduction u/s 80P(2)(i)(a) & 80P(2)(d) - HELD THAT:- It is evident from the assessment order that the assessee had income from interest from the employees, interest on savings, dividend and income from no dues certificate which has been held by the AO as Income from other sources.
CIT(A) had dealt with each items in his order and had given detailed findings on all the issues raised before him. After considering various judgements as mentioned above he treated the income as Income from business or profession and also entitled the assessee for deduction u/s 80P(2)(i)(a) of the Act i.e. interest from employees, interest on savings, dividend and Income from no dues certificate.
DR has not controverted the findings given by the ld. CIT(A). The judgements relied on by the ld. DR in the cases of Totgar’s Co-operative Sale Society Ltd.[2010 (2) TMI 3 - SUPREME COURT] is on surplus fund deposited with bank and interest income. CIT vs. Nawanshahar Central Co-Op. Bank Ltd. 3 [2012 (9) TMI 404 - SC ORDER] are squarely applicable in this case as the Hon'ble Supreme Court allowed 80P(2)(a)(i) deduction on underwriting commission and interest on PSEP Bond. Thus in view of the facts and circumstances of the case, we find no reason to interfere in the order of the ld. CIT(A) and the appeal of the Revenue is dismissed.
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2015 (3) TMI 1410
Eligibility criteria stipulated by the UGC Regulations of Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges - appointment as Vice-Chancellor - whether the post of Associate Professor held by the Appellant-Dr. Kalyani Mathivanan in a private aided College can be considered as an equivalent post, satisfying requirement of paragraph 7.3.0 of the UGC Regulations, 2010? - whether the prescriptions contained in paragraph 7.3.0 of the Annexure to the UGC Regulations, 2010 is mandatory or directory? - whether the U.G.C. Regulation, 2010 would override the provisions of the University Act, 1965 and the Statute framed thereunder?
HELD THAT:- The University Grants Commission has been established for the determination of standard of Universities, promotion and co-ordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the Universities [see Section 26(1)(e)(g)] UGC is empowered to frame Regulations - It is only when both the Houses of the Parliament approve the Regulation, the same can be given effect. Thus, the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the Fund of the Commission.
Chapter VI of the University Act deals with Statutes, Ordinances and Regulations. Section 30 stipulates the matters which can be provided under Statutes. This includes the constitution or reconstitution, powers and duties of the authorities of the University. Section 32 deals with Ordinances which may provide for all or any of the matters mentioned therein including the qualifications and emoluments of teachers of the University - The word statutes with respect to University means law of the University. In the present context it means the provisions of the University Act and the statutes, ordinances and Regulations framed therein. Chapter V of the Statutes of Madurai Kamaraja University relates to Vice-Chancellor. Clause 2(1) of Chapter V stipulates that Vice-Chancellor should be a whole-time Officer of the University who would be the academic head and principal executive officer of the University with powers and duties mentioned therein.
From UGC Regulations, 2010, it is clear that the Vice-Chancellor should be a distinguished academician with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization. Whereas the post of Vice-Chancellor under University Act, 1965 and statute made thereunder is not a teaching post but an officer of the University.
Whether any of the provisions of the State Legislation (University Act, 1965) and statutes framed thereunder is in conflict with the Central Legislation i.e. UGC Act, 1956 including UGC Regulations, 2010? - HELD THAT:- UGC Regulations, 2010 is not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this connection, one may refer paragraph 8(p)(v) of Appendix-I dated 31st December, 2008 and Regulation 7.4.0 of UGC Regulations, 2010 - It is also not the case of the Respondents that the Scheme as contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been adopted and implemented by the State Government. It is also apparent from the facts that University Act has not been amended in terms of UGC Regulations, 2010 nor was any action taken by the UGC Under Section 14 of UGC Act, 1956 as a consequence of failure of University to comply with the recommendations of the Commission Under Section 14 of the UGC Act, 1956.
The appointment of Dr. Kalyani Mathivanan as Vice-Chancellor, Madurai Kamaraj University as made by the G.O. (1D) No. 80, Higher Education (H2) Department, Government of Tamil Nadu dated 9th April, 2012 is upheld - appeal allowed.
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2015 (3) TMI 1409
Requirement of sanction u/s 197 Code of Criminal Procedure before launching the prosecution - rebuttable presumption insofar as the guilt of the offence is concerned - HELD THAT:- Under Section 48, the guilt is deemed to be committed the moment the offence under the 1974 Act is alleged against the Head of the Department of a Government Department. It is a rebuttable presumption and under the proviso to Section 48, the Head of the Department will get an opportunity to demonstrate that the offence was committed without his knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the Government Department to seek umbrage Under Section 197 Code of Criminal Procedure and such a course if permitted to be made that would certainly conflict with the deemed fiction power created Under Section 48 of the 1974 Act.
There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. If one can visualise a situation where Section 197 Code of Criminal Procedure is made applicable in respect of any prosecution under the 1974 Act and in that process the sanction is refused by the State by invoking Section 197 Code of Criminal Procedure that would virtually negate the deeming fiction provided Under Section 48 by which the Head of the Department of Government Department would otherwise be deemed guilty of the offence under the 1974 Act. In such a situation the outcome of application of Section 197 Code of Criminal Procedure by resorting to reliance placed by Section 4(2) Code of Criminal Procedure would directly conflict with Section 48 of the 1974 Act and consequently Section 60 of the 1974 Act would automatically come into play which has an over riding effect over any other enactment other than the 1974 Act.
There is no scope for invoking Section 197 Code of Criminal Procedure even though the Appellants are stated to be public servants - Appeal dismissed.
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2015 (3) TMI 1408
Reopening of assessment u/s 147 - Addition u/s 14A r.w.rr. 8D - HELD THAT:- Once the assessee did not press the issue of initiation of re-assessment proceedings before the Tribunal and allowed the decision to be taken on all issues on merits, we now cannot unsettle the earlier tribunal order by entertaining any ground about the initiation of re-assessment. AR fairly admitted that the order of the tribunal in the first round has been accepted by the assessee. In this view of the matter, we cannot permit the assessee to raise the ground against the initiation of reassessment once again, after having not pressed the same in the first round before the tribunal. This ground is, therefore, not allowed.
Disallowance u/s 14A - AO was not correct in applying the provisions of Rule 8D for computing disallowance u/s 14A. Our view is fortified by the judgment of Maxopp Investments Ltd. [2011 (11) TMI 267 - DELHI HIGH COURT] in which it has been held that the provisions of Rule 8D can apply only from the assessment year 2008-09 and in the earlier periods, the disallowance is required to be made on a reasonable and acceptable method of apportionment.
For interest aspect it is vivid from the assessee’s balance sheet that total investments at the end of the year stand at ₹ 167.74 crore. The assessee’s capital along with reserve and surpluses stand at ₹ 448.33 crore. This shows that the assessee’s Shareholders’ funds is far in excess of the investment made in securities yielding exempt income - in CIT vs. Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] has held that if there are interest free funds available with the assessee sufficient to meet its investment and, at the same time, loan has been raised, it can be presumed that the investments were from interest free funds and, resultantly, no disallowance of interest can be made.
Recently, the Hon’ble Bombay High Court in CIT vs. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] has held that no disallowance of interest can be made u/s 14A if the assessee’s own capital is more than the investments fetching exempt income. Similar view has been taken by the Hon’ble Gujarat High Court in the case of CIT vs. Suzlon Energy Ltd. . [2013 (7) TMI 697 - GUJARAT HIGH COURT]. In view of the above judgments, it is patent that the disallowance u/s 14A on account of interest was not rightly made by the AO.
Disallowance towards expenses incurred for earning exempt income - we find that the AO made addition by applying the mandate of Rule 8D(2) (iii). On the other hand, the ld. CIT(A) bifurcated total expenses into those exclusively relating to the manufacturing activity and those which are common to both manufacturing activity and exempt income. Such amount of common expenses was determined by the ld. CIT(A) at ₹ 80.23 crore. The ld. DR could not point out any deficiency in computing the base amount of expenses at ₹ 80.23 crore.
Apportionment of expenses - CIT(A) was not justified in allocating ₹ 26.21 lac towards exempt income by apportioning such total expenditure of ₹ 80.23 crore in the ratio of dividend income to the total turnover of the company. There can be no comparison between dividend income on the one hand and total turnover on the other, which contains only a part as income. On the contrary, a valid base for apportionment is exempt income to taxable income.
As in the case of HT Media Ltd. [2015 (8) TMI 708 - ITAT DELHI] has also approved the apportionment of common expenses in the ratio of exempt income to total income. To this extent, the impugned order is set aside and the matter is sent back to the AO. We direct the AO to compute disallowance u/s 14A by apportioning total expenses of ₹ 80.23 crore in the ratio of exempt income to total income. However, it is made clear that the total disallowance should not exceed 10% of the exempt income, being the amount of disallowance sustained in the first appeal in the original round, against which the Revenue did not choose to prefer any appeal. - Appeal of the Revenue is partly allowed for statistical purposes a
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