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Showing 41 to 60 of 1437 Records
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2015 (3) TMI 1407
Dishonor of Cheque - whether, a power of attorney can speak about a fact, which is in the personal knowledge of the petitioner, the drawee of the cheque, stated to be received the cheque amount, in the police station? - HELD THAT:- Record of proceedings shows that revision case is pending from 2011 onwards. The petitioner has obtained stay of the proceedings in STC. No. 590 of 2007 and even after this Court ordered private notice, as early as on 09.09.2011, proof has not been filed for effecting service on the respondent. Thus, it is also evident from the above that it is the petitioner, who has protected the proceedings in STC No. 590 of 2007 on the file of the learned Judicial Magistrate No. I, Tiruppur, and not the respondent.
The power of attorney can adduce evidence on the facts relating to issuance of cheque, dishonour, issuance of notice and filing of complaint, and these facts can be deposed with documents. He comes into picture, only after all the legal requirements for instituting a complaint, are met and authorised to speak about the abovesaid facts. Power of attorney is given to institute a complaint under Section 138 of the Negotiable Instruments Act, 1881, and to conduct the case. It cannot be contended that, whatever transpired between the parties is within the personal knowledge of the power of attorney. On the facts of this case, he cannot speak as to what transpired in the Crime Branch Police Station, Tiruppur, regarding payment, stated to have been made by the drawer, towards the cheque amount. The abovesaid fact can be spoken to, only by the complainant and not by the power of attorney.
The revision petition is dismissed.
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2015 (3) TMI 1406
Condonation of delay - sufficient cause of delay - delay around 8 ½ years - CIT(A) refusing to condone the delay around 8 ½ years in filing these appeals against the order passed by the Assessing Officer - HELD THAT:- The assessee has to establish that there was no negligence or inaction and the right granted under law to challenge the order was not abandoned. It cannot be overlooked that on expiry of the period of limitation prescribed for seeking remedy, a corresponding right accrues in favour of the other party and the same should not be lightly interfered with. Coming to the facts of the present case, the assessee has to explain the period of delay by bringing the material on record to support the sufficient cause.
The assessee has to show that the assessee is vigilant during this period and the delay was beyond his control. Condoning of inordinate delay of around 8 ½ years should not frustrate the legitimate expectation of the other party as the Revenue would have come to the conclusion that the order of the Assessing Officer has been accepted by the assessee and reached finality especially the assessee should not take up the requisite legal remedies for such an inordinate length of time of 8 ½ years.
Considering the findings of the CIT(Appeals), since he has not examined actual circumstances which has prevented the assessee to file appeals against the orders of the Assessing Officer, we are not in a position to express any opinion about condoning of the delay. The ld. CIT (Appeals), who is required to examine whether the facts narrated by the assessee in his petition for condonation of delay as true or not which he failed to examine the same. Thus, in our opinion he is required to examine the contents, details in petition whether it is true or not. In our opinion, rule of limitation are not meant to destroy the right of the parties - The length of delay is not a material to condone the delay, the cause of delay is to be considered to condone the delay.
We are inclined to hold that the Commissioner of Income Tax (Appeals) has to have necessary enquiry regarding averments made by the assessee in his affidavit and thereafter decide in accordance with law. - Appeal filled by assessee for statistical purposes.
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2015 (3) TMI 1405
Benami transaction - Real owner of property purchased - title of the first respondent/first defendant in respect of the suit property - appellants/surviving defendants contend that even if it is assumed that the suit property was purchased by the respondent/plaintiff with his own funds, since it was purchased in the name of the first appellant/first defendant, in view of the bar provided under Section 4 of the Benami Transaction (Prohibition) Act - Whether the Courts below erred in law in relying upon Exs. A13, A14, A15, A17 and A18 to reject the case of the appellants? - HELD THAT:- The Courts below did not rely on Exs. A13, A15, A17 and A18 for the purpose of making a decision as to whether the funds for the purchase of the suit property under Ex. B1 was provided by the respondent/plaintiff; that on the other hand, the Courts below relied on Ex. A14 alone for the above said purpose and that the reliance made on Ex. A14 is not erroneous in law. The first substantial question of law is answered accordingly
Whether the Courts below have rendered a perverse finding that the purchase of the suit property in the name of the first appellant was made entirely out of the funds provided by the respondent? - The respondent/plaintiff was able to prove that it was he who provided the funds for the purchase of the house site under Ex. B1 in the name of his wife, namely the first respondent/first defendant. The concurrent findings of the courts below to the above said effect cannot be said to be defective or erroneous, much less perverse warranting an interference by this Court in exercise of its power in this second appeal. The second substantial question of law is answered accordingly.
There was a settlement between the respondent/plaintiff and his wife, the first appellant/first defendant on 25.09.1990 and the said settlement was arrived at in the presence of Panchayatdhars and the Inspector of Police, Ayakudi Police Station - The document referred to in Paragraph 6 of the written statement of the first appellant/first defendant as containing the acknowledgment made by the respondent/plaintiff has not seen the light of the day. In the absence of any witness and in the absence of any document, based on the mere averment made in the written statement alone, the Court cannot hold that the said averment stands substantiated by the first appellant/first defendant. As the above said contention of the first appellant/first defendant has not been substantiated either by oral or documentary evidence, there shall be no question of holding the respondent/plaintiff to be estopped from denying the title of the first appellant/first defendant in respect of the suit property on the basis of the alleged acknowledgment of title. Hence, the fourth substantial question of law is answered accordingly, holding that the appellants have not proved that the respondent/plaintiff had acknowledged the title of the first appellant/first defendant and hence he was estopped from denying her title to the suit property. The Courts below have not committed any error in not rendering a finding that the respondent herein/plaintiff was estopped from disputing the title of the first respondent/first defendant in respect of the suit property in the light of the averments contained in paragraph 6 of the written statement of the first appellant/first defendant. The fourth substantial question of law is answered accordingly.
Whether the Courts below failed to properly construe the scope of Section 3(2) and Section 4 of the Benami Transaction Prohibition Act, 1988 in coming to the conclusion that the respondent/plaintiff was entitled to maintain his claim against the appellants? - In the case on hand there is no pleading and no evidence to show that the purchase made under Ex. B1 was not for the benefit of the first appellant/first defendant and on the other hand it was for the benefit of the respondent/plaintiff. On the other hand, there is a clear and categorical admission made by the respondent/plaintiff both in his pleadings and evidence that the purchase was made for the benefit of his wife and also his son in the name of his wife, namely the first appellant/first defendant.
The courts below have committed an error in holding that the respondent herein/plaintiff was entitled to succeed in the suit filed by him on the basis of his contention that the suit property had been purchased by him with his own funds in the name of his wife for her benefit and that still he was entitled to the declaration of his title in respect of the suit property as well as for the recovery of possession of the same from the appellants/surviving defendants. The third substantial question of law, accordingly decided in favour of the appellants/surviving defendants holding that the first appellant/first defendant shall be entitled to the suit property purchased in her name. In view of the foregoing discussions, especially the answer given to the third substantial question of law, the appellants are bound to succeed in the second appeal and the decree passed by the lower appellate court confirming the decree passed by the trial court is liable to be set aside, with the result that the suit itself is liable to be dismissed.
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2015 (3) TMI 1404
Seeking grant of bail - constitutional validity of Section 438 Code of Criminal Procedure - Appellant contends that once the writ petition is disposed of by the High Court declining to quash the FIR registered against Respondent Nos. 1 to 4, the High Court in exercise of its power Under Article 226 of the Constitution of India - HELD THAT:- If the Court was of the opinion that there was no other convenient or adequate remedy open to the Petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the Petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante.
As could be seen from the above said paragraph of KARTAR SINGH VERSUS STATE OF PUNJAB [1994 (3) TMI 379 - SUPREME COURT] this Court has made it very clear that High Court has no power to entertain an application for bail Under Article 226 of the Constitution of India. It has made further clear that the power should be exercised sparingly relating to the cases under the 1987 Act, that too only in rare and appropriate cases in extreme circumstances. Upon the said passage from the judgment of Kartar Singh case, learned senior Counsel for Respondent Nos. 1 to 4 has placed strong reliance in justification of the order passed by the High Court in giving direction to the learned Magistrate regarding the bail application that would be filed by Respondent Nos. 1 to 4.
The matter is remanded to the learned Magistrate to consider the bail application afresh in accordance with law after giving an opportunity of hearing to the parties - appeal allowed by way of remand.
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2015 (3) TMI 1403
Grant of refund - seeking a direction to the Respondents to undertake assessment of the returns filed by the Petitioners - only grievance of the parties like the Petitioners is that the returns though furnished and submitted have not been scrutinised and verified in terms of the law - HELD THAT:- We clarify that we make no observation nor express any opinion specifically on the issue as to whether the refund could be granted to the Petitioners on the basis of their computation and calculation made in the returns or a separate procedure being evolved therefor. They will have to comply with the same including filling in the forms if necessary - We only desire that none of such applications as are noted by us and in the Petitions are kept pending by the department/Respondents. If the returns are furnished and submitted, then, they deserve to be scrutinised.
It is stated that pursuant to our oral direction, the Commissioner of Sales Tax is present in Court. He has instructed Mr. Sharma to state that all the returns and which are subject matter of the Petitions on today's board and equally those pending with the department would be taken up for scrutiny and verification periodically and as far as the Petitioners are concerned, the returns would be processed and the requisite orders would be passed within a period of 4 weeks from the date of receipt of copy of this order.
Petition disposed off.
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2015 (3) TMI 1402
Grant of Regular Bail - conspiracy - floating of bogus companies by appointing several persons as the Directors - offence punishable under Section 120-B, 420, 465, 467, 468, 471, 477-A of the Indian Penal Code - HELD THAT:- Indisputably, the case on hand is one of criminal conspiracy. Prima facie it appears that as a part of the conspiracy, which was hatched, a huge amount was transferred to Dubai and Hongkong on the strength of fake Bills of Entry. Each of the accused has played his own role in the alleged conspiracy. It appears that one of the main accused persons Sunil Dipak Kumar Agrawal has been ordered to be released on regular bail.
The applicant-accused is ordered to be released on bail registered with the DCB Police Station, Surat on executing a personal bond of ₹ 5,00,000/- with one surety of the like amount each to the satisfaction of the trial Court, and subject to the conditions imposed - application allowed.
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2015 (3) TMI 1401
Excess cash as generated from unaccounted sales - No explanation to difference in cash either during the survey proceeding or in course of assessment proceeding - HELD THAT:- There is no dispute to the fact that on physical verification excess cash was found at the time of survey. AO has treated excess cash as unexplained income of assessee by alleging assessee failed to explain the source of excess cash. However, it is the contention of assessee before ld. CIT(A) as well as before us that excess cash found at the time of survey belong to partners of HUF.
On perusal of the returns filed electronically by Giridharlal & Sons, HUF for the AYs. 2008-09 and 2009-10, it appears that not only the returns were filed prior o the date of survey, but, the HUF is also generating some amount of income. The balance sheet as on 31/03/08 also shows cash in hand of ₹ 70,000. Therefore, assessee’s claim that excess cash actually belong to HUF cannot be out rightly rejected. In the aforesaid view of the matter, considering the fact that assessee’s explanation with regard to excess cash is plausible, the addition made cannot be sustained. Accordingly, we delete the same.
Estimate gross profit on the alleged suppression of sale - HELD THAT:- No material has been brought to our notice by ld. DR to even remotely indicate assessee has indulged in suppression of sale. Drop in sales for the post survey period may be due to various reasons but without bringing any material on record to suggest suppression of sales, merely on assumptions and presumptions sales cannot be estimated by alleging suppression of sales by assessee. More so, when it is a fact on record that assessee regularly files its VAT returns disclosing sales turnover, which is in accordance with the books of account and authorities under the VAT Act have not pointed out any sales suppression.
At least nothing of the sort has been brought to our notice. As regards the decision of RAJNIK AND CO. [2001 (4) TMI 53 - ANDHRA PRADESH HIGH COURT] on careful examination of the same, we are of the view that it is not applicable to the facts of the present case as in the case decided by the Hon’ble High Court there were evidences on record to show that assessee has suppressed sales. Whereas, in the present case there is not even a single piece of evidence to show that assessee has suppressed its sales. In view of the aforesaid, we hold that addition made by estimating sales is not proper, hence, cannot be sustained. Accordingly, we delete the same.
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2015 (3) TMI 1400
Freezing of petitioner's Bank Accounts - Cheating - defacto complainant - police has complied with the mandatory requirements under Section 102 CrPC or not - HELD THAT:- A cursory look at sub Section (3) of Section 102 CrPC, no doubt, makes it clear that it is the duty of the police officer acting under subsection (1) shall forthwith the report the seizure to the magistrate having jurisdiction - The word “shall” used under Sub Section (3) of the Section 102 CrPC can be meant and interpreted to cast a mandatory duty on the police officer, to seize the property and to report to the Magistrate having jurisdiction. In the light of the decisions dealing with interpretation of statutes and Section, this Court is unable to accept the contention that non compliance of sub Section (3) of Section 102 CrPC, i.e., in not reporting the factum of the seizure to the learned Magistrate having jurisdiction, would entitle the accused to seek for defreezing of the bank accounts, when the investigation is in progress and with reference to the facts on hand, statements of bank accounts have to be collected from the HDFC Bank.
On the facts and circumstances of this case, instead of directing the petitioner/accused to seek for a direction against the employer to credit of subsistence allowance, which is now stated to be lying in the District Treasury, Thiruvannamalai, this Court, in exercise of powers under Section 482 of CrPC, deems it fit to suo motu implead the Director of the Agriculture Department, Ezhilagam, Chennai, as a party respondent to this revision case, only for the purpose of enabling him to credit the subsistence allowance to which the petitioner is entitled as a Government Servant.
A direction is issued to the Manager, HDFC Bank, Thiruvannamalai Branch, to defreeze the salary account only to the limited extent of permitting the Director, Agriculture Department, Chennai, to deposit the subsistence allowances due and payable to the petitioner, within a period of two weeks from the date of receipt of a copy of this order - Criminal Revision Case is disposed of.
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2015 (3) TMI 1399
Sanction of scheme of Amalgamation - registration as NBFC - Transferee Company undertakes to register with RBI - HELD THAT:- A perusal of the papers would indicate that on consideration of the scheme the competent authorities though have raised observation regarding one aspect relating to the provisions made in the scheme, but it is not as being contrary to any law, but only for securing RBI clearance, which is undertaken. Further, despite publication of the filing of these petitions, no person interested in the affairs of the petitioner companies or their members have raised any objection to the sanction of scheme by this Court.
The Transferee company would remain liable for compliance of the law under various enactments including the Income Tax Act on the scheme becoming operational. The scheme in Clause-9 provides to protect the interests of the staff workmen and employees of the Transferor companies - petition allowed.
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2015 (3) TMI 1398
Rectification of mistake u/s 254 - A.R submitted that the said disallowance is not warranted since the own funds available with the assessee exceeds the borrowed funds - A.R submitted that the assessee is having the view that the availability of own funds and other non-interest bearing funds vis-a-vis the investment should be examined as on the date of Balance Sheet and not as on the date of making investment - HELD THAT:- We find merit in the miscellaneous petitions of the assessee and accordingly, we are of the view that the errors pointed out by the assessee require rectification.
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2015 (3) TMI 1397
Deduction u/s 10A - HELD THAT:- Admit appeal for following question of law -
“If the Tribunal fell into error in the circumstances of the case in continuing the benefit of Section 10A to assessee for Assessment Year 2005- 06 on the ground that enhanced claim way of including 18 units as independently entitled to the benefit so made, was not tenable.”
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2015 (3) TMI 1396
Permission to reduce the capital and the Securities Premium Account as resolved by the Extraordinary General Meeting - HELD THAT:- Presently, in view of the decision to reduce the share holdings such of those public minority share holders who have not objected to receiving their share money would be paid and such of public minority shareholders who have opted to retain their holdings shall be continued as shareholders of the petitioner company. Hence, the object of the reduction of share holding is achieved by the decision taken by the petitioner company.
The petition is allowed and reduction of capital as resolved at the Extraordinary General Meeting held on 13.01.2015 which reads as hereunder is confirmed - Form of minutes under Section 103(1) of the Act as set out below is approved.
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2015 (3) TMI 1395
Disallowance of payment made by the firm to the spouse of the deceased partner - CIT(A) erred in confirming the action of the Assessing Officer in not allowing the claim of the appellant - HELD THAT:- As decided in own case [2012 (12) TMI 86 - ITAT MUMBAI] as held it is clearly a gratuitous payment made by the assessee firm which was not an allowable business expenditure u/s 37(1) –Decided in favor of revenue
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2015 (3) TMI 1394
Penalty u/s 271(1)(c) - addition of difference between revenue expenditure claimed and depreciation allowed - HELD THAT:- Where penalty has been imposed by A.O. in view of the difference of opinion between assessee and the A.O. Assessee treated the expenditure as revenue expenditure whereas, the A.O. treated the purchase of software as capital asset. All the particulars were before the A.O. from which only he could arrive at a conclusion that assessee had debited the expenditure in the P & L account.
It is not a case where there was any wrong furnishing of particulars of income or concealment of income. In view of above, we do not find any infirmity in the order of Ld. CIT(A). Appeal filed by revenue is dismissed.
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2015 (3) TMI 1393
Disallowance of miscellaneous income arising out of scrap sale as deduction from pre-production capital expenditure - HELD THAT:- The interest income earned on the excess borrowed fund was assessed as income of the assessee. However in this case before us, the assessee has generated scrap while relocating and erecting its machinery. Obviously the revenue derived from the sale of such scrap will go to reduce the erection cost which is to be capitalized. It is pertinent to note that the scrap generated is not from the production activity of the assessee but from relocation and erection of the machinery belonging to the assessee. Therefore the miscellaneous income arising out of scrap sale from such activity should be reduced from the pre-production capital expenditure incurred by the assessee. Thus this ground raised by the assessee is allowed in its favour.
Disallowance of prior period expenses - HELD THAT:- In mercantile system of accounting, only the expenditure that has crystallized during the relevant assessment year is to be treated as allowable deduction. In this case, it is apparent that the payment made by the assessee had crystallized as expenditure during the relevant assessment year. Therefore, the assessee has rightly claimed the same as allowable deduction. In these circumstances, we hereby direct the AO to allow the claim of the assessee as allowable deduction. It is ordered accordingly.
Disallowance of expenses towards prepayment premium and interest recompense - HELD THAT:- As relying on GUJARAT STATE FERTILIZERS & CHEMICALS LTD. [2013 (7) TMI 701 - GUJARAT HIGH COURT] and GUJARAT GUARDIAN LIMITED [2009 (1) TMI 13 - HIGH COURT DELHI] we hereby direct the Ld. Assessing Officer to delete the additions made on account of disallowance being the payment towards interest recompense on CDR scheme. Thus this issue is also held in assessee’s favour.
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2015 (3) TMI 1392
Cancellation of registration certificate with retrospective effect - HELD THAT:- In similar circumstances in the case of M/S. VIJAY SHREE METALS VERSUS THE ASSISTANT COMMISSIONER (CT) BROADWAY ASSESSMENT CIRCLE CHENNAI-101 [2015 (3) TMI 1216 - MADRAS HIGH COURT] it has been held that the registration certificates are to be activated.
The respondent is directed to restore the registration certificate of the petitioner forthwith on production of a copy of this order - petition allowed.
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2015 (3) TMI 1391
Liability on the part of the respondent/auction purchaser of the machinery to clear the customs duty payable to the appellant - HELD THAT:- The High Court has specifically observed that it would not go into the question as regards the liability of the loanee vis-à-vis the State Financial Corporation and have also noted the commitment of the State Financial Corporation in the Sale Confirmation Letter that from the proceeds of the machinery, the dues payable to the appellant shall be paid.
Appeal dismissed.
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2015 (3) TMI 1390
Maintainability of petition - territorial jurisdiction to examine the present petition - infringement of legal rights or not - HELD THAT:- Hon’ble Apex Court under identical circumstances in RAJENDRAN CHINGARAVELU VERSUS RK. MISHRA, ADDITIONAL COMMISSIONER OF INCOME-TAX [2009 (11) TMI 341 - SUPREME COURT] while examining as to whether receipt of communication or location of the office would cloth such High Court the jurisdiction to examine the writ petition on merits has held in the ease of OIL & NATURAL GAS COMMISSION VERSUS UTPAL KUMAR BASU [1994 (6) TMI 193 - SUPREME COURT] that mere location of the Registered office or receipt of communication would not give rise for cause of action. Hence, this Court is of the considered view that present writ petition before this Court would not be maintainable since no part of the cause of action has arisen within the territorial jurisdiction of this Court.
The consignment belonging to the petitioner has been received at Delhi from Australia and on same being cleared at Air Cargo Complex, Delhi petitioner has taken delivery of the said consignment at Delhi and transported it to Uttarakhand. As such, no part of the cause of action either wholly or in part has arisen within the territorial jurisdiction of this Court so as to enable this Court to examine as to whether the petitioner’s alleged legal right had been infringed - the irresistible conclusion that will have to be drawn by this Court is, this Court has no territorial jurisdiction to examine the writ petition on merits since no part of cause of action has arisen within the territorial jurisdiction of this Court.
Writ petition is hereby dismissed as not maintainable before this Court.
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2015 (3) TMI 1389
Area Based Exemption - Payment of Education Cess and Secondary and Higher Education Cess - the cess can be paid through basic excise duty credit or not - N/N. 56/02-C.E. - HELD THAT:- On going through the registry’s records, it is seen that the regular matters listed on 24-6-2013 had been shifted to 25-6-2013 as a result of which it appears that the matter was listed on 25-6-2013 but the notice for the same was not issued - there was bona fide reason for non-appearance of the appellant on 25-6-2013.
The appeal is recalled and these appeals are restored to their original number.
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2015 (3) TMI 1388
Refund of excess duty paid - duty paid under protest - no show cause notice has been issued to the appellant - demands stayed by the stay order - HELD THAT:- Admittedly, for the period in dispute for filing of refund claim where duty was paid under protest, no show cause notice has been issued to the appellant. Therefore, issue of valuation does not arise. Therefore, this Bench is having a jurisdiction to entertain the appeal filed by the appellant.
Admittedly, for the subsequent period although demands have been confirmed by way of adjudication against the appellant and same has been stayed by the stay order mentioned. In these circumstances, when there is no amount pending against the appellant for recovery, appellant is entitled for the refund claim.
Appeal allowed - decided in favor of appellant.
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