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2011 (5) TMI 1121
Issues Involved:
1. Eligibility to claim pensionary benefits under the Pension Scheme.
2. Compliance with essential conditions stipulated in the Regulations governing the Pension Scheme.
3. Requirement of individual notice for exercising the option for the Pension Scheme.
4. Adjustment and recovery of dues related to the Contributory Provident Fund (C.P.F.).
Detailed Analysis:
1. Eligibility to Claim Pensionary Benefits:
The core issue in the appeals is whether the respondents are eligible to claim pensionary benefits under the Pension Scheme despite non-compliance with the essential conditions stipulated in the Regulations. The respondents had either not exercised their option for the Pension Scheme within the specified time or, having opted, failed to comply with the terms and conditions, such as refunding the advance taken from the employer's contribution to the C.P.F.
2. Compliance with Essential Conditions:
The Supreme Court emphasized that the Regulations governing the Pension Scheme have the force of law. These Regulations require strict compliance, and any deviation renders actions illegal and invalid. The respondents, in all appeals, had availed of the retiral benefits under the C.P.F. and gratuity without any protest and made claims for pensionary benefits only after retirement with unreasonable delays. The Court reiterated that statutory Regulations are binding and effective as enactments of the competent legislature, and any breach of these Regulations would amount to a violation, rendering such actions or orders illegal and invalid.
3. Requirement of Individual Notice:
The respondents argued that they were not given the opportunity to exercise the option for the Pension Scheme due to the non-service of individual notices. The Court, however, held that there was no requirement in the Pension Scheme or Regulations for serving individual notices. The Court referenced the case of Union of India v. M.K. Sarkar, stating that when notice or knowledge of the Pension Scheme can be reasonably inferred from the conduct of the respondents and surrounding circumstances, it constitutes sufficient notice in the eyes of the law. The Court found that the respondents' argument for want of knowledge due to non-service of individual notices was not tenable.
4. Adjustment and Recovery of Dues:
The Court discussed the provisions related to the adjustment and recovery of dues under the C.P.F. Scheme. The Regulations stipulated that employees who opted for the Pension Scheme but failed to refund the advance taken from the employer's contribution to the C.P.F. within the specified period would be deemed to have opted to continue with the existing C.P.F. benefit. The respondents' failure to comply with these conditions disentitled them from claiming any benefits under the Pension Scheme.
Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's judgments and orders. The Court held that the respondents were not entitled to claim pensionary benefits under the Pension Scheme due to their non-compliance with the essential conditions stipulated in the Regulations. The Court emphasized the binding nature of statutory Regulations and the necessity for strict adherence to their terms.
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2011 (5) TMI 1120
Issues involved: Validity of penalty imposed u/s 271(1)(c) of the Income-tax Act, 1961 for assessment years 2004-05 and 2005-06.
The Appellate Tribunal ITAT Hyderabad, in the case involving the validity of the penalty imposed u/s 271(1)(c) of the Income-tax Act, 1961 for the assessment years 2004-05 and 2005-06, addressed the identical issue in both appeals by the assessee. The main contention was the disallowance of interest in the computation of income, with the assessee arguing that no penalty should be levied as all material facts were disclosed in the filed returns of income. The Revenue, however, contended that the assessee wrongly claimed deduction of interest for non-business purposes. The Tribunal noted that all material facts were disclosed by the assessee, and there was no evidence to suggest concealment of income or filing of inaccurate particulars. It was deemed a case of honest difference of opinion rather than deliberate misrepresentation, leading to the cancellation of the penalty under section 271(1)(c) for both assessment years.
In the detailed analysis, the Tribunal observed that the disallowance of deduction claimed by the assessee was based on disclosed material facts in the return of income. The withdrawals made were transparently recorded, and there was no indication that the disallowance of interest was an attempt to conceal income. The Tribunal emphasized that the disagreement between the assessee and the Revenue regarding the allowance of expenses did not amount to deliberate misrepresentation. It was concluded that the assessee's explanation had a valid basis, and the case did not warrant the imposition of a penalty u/s 271(1)(c) of the Act. Consequently, the penalty was canceled, and the appeals of the assessee for both assessment years were allowed by the Tribunal.
Separate Judgment: None
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2011 (5) TMI 1119
Issues Involved: Application for anticipatory bail u/s 438 of CrPC in connection with FIR u/s 406, 409, 420, 467, 468, 471, and 114 IPC.
Summary:
1. The Applicant filed for anticipatory bail u/s 438 CrPC regarding FIR u/s 406, 409, 420, 467, 468, 471, and 114 IPC.
2. Applicant's counsel argued for bail citing release of other accused and lack of evidence against the Applicant.
3. Counsel referred to judgments supporting the Applicant's innocence and lack of vicarious liability.
4. Prosecution argued against bail due to non-cooperation of the Applicant during investigation.
5. Court considered previous bail application and the Applicant's availability for interrogation.
6. Despite being a successive bail application, the court granted anticipatory bail to the Applicant with specific conditions.
7. The Applicant was ordered to execute a personal bond, remain present before the trial court, cooperate with the investigation, and deposit a specified amount.
8. The court allowed the IO to file an application for remand if deemed necessary.
Separate Judgement: None.
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2011 (5) TMI 1118
Issues involved: Disallowance of various expenses including telephone, miscellaneous, conveyance, motor car, depreciation on motor car, and traveling expenses for assessment years 2004-05, 2005-06, and 2006-07; Disallowance of interest on bank overdrafts u/s 14A of the Act.
Disallowed Expenses (Telephone, Miscellaneous, Conveyance, Motor Car, Depreciation, Traveling Expenses)
The appeals were against the CIT(A)'s orders disallowing various expenses for the assessee firm, an authorized dealer of Telco Vehicles/Spare Parts/Lubricants/Repairs & Services. The AO disallowed expenses like telephone, miscellaneous, conveyance, motor car, depreciation on motor car, and traveling expenses during scrutiny proceedings. The CIT(A) partially allowed some expenses but confirmed disallowances on others. The ITAT referred to a previous year's decision where similar disallowances were deleted due to lack of concrete evidence and upheld the assessee's appeal, deleting the disallowances for the current years as well.
Interest Disallowance on Bank Overdrafts u/s 14A
The AO disallowed interest expenses claimed by the assessee, as the investments were treated as capital assets generating exempt income. The CIT(A) upheld the disallowance but directed the AO to calculate the disallowance u/s 14A r.w. rule 8D. The ITAT referred to a High Court judgment stating that the AO must determine expenses related to income not forming part of total income. The matter was remitted back to the AO for fresh consideration in line with the High Court's ruling. Consequently, the appeals for AY 2004-05 and 2005-06 were allowed, and the appeal for AY 2006-07 was treated as allowed for statistical purposes.
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2011 (5) TMI 1117
Issues involved:
1. Disallowance u/s 14A of the Income Tax Act
2. Disallowance of unabsorbed engineering overheads
Issue 1: Disallowance u/s 14A of the Income Tax Act
The Assessing Officer disallowed a proportionate amount u/s 14A as the assessee had claimed dividend income as exempted income but did not disallow the management and administrative expenses. The Ld. Commissioner upheld the disallowance calculated by the Assessing Officer. However, the ITAT found that Rule 8D, used for the disallowance calculation, was not applicable for the assessment year in question based on a Mumbai High Court decision. The case was remitted back to the Assessing Officer for a fresh decision considering the reasonable disallowance.
Issue 2: Disallowance of unabsorbed engineering overheads
The Assessing Officer disallowed a portion of unabsorbed overhead on capital works expenditure, treating it as capital expenditure. The Ld. Commissioner upheld the disallowance, stating that proper details and documents supporting the claim were not provided by the assessee. The ITAT remitted the issue back to the Assessing Officer for a fresh decision, emphasizing the need for the assessee to provide necessary details and documents for consideration.
In conclusion, the appeal by the assessee was allowed for statistical purposes, with both issues being remitted back to the Assessing Officer for fresh consideration in light of the relevant legal principles and decisions.
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2011 (5) TMI 1116
Issues Involved:
1. Whether the High Court can extend the time fixed for payment of fine while exercising its revisional powers under Section 397 of the Cr.P.C. by invoking its inherent powers under Section 482 of the Cr.P.C.
2. Whether the invocation of powers under Section 482 for extending the time fixed under a judgment is permissible in light of the limitations prescribed by Section 362 of the Cr.P.C.
Detailed Analysis:
Issue 1: Extension of Time for Payment of Fine Using Inherent Powers
The primary issue is whether the High Court can extend the time fixed for payment of fines while exercising its revisional powers under Section 397 of the Cr.P.C. by invoking its inherent powers under Section 482 of the Cr.P.C. The Criminal Revision Petitions in these cases were filed by accused persons challenging their conviction and sentence under Section 138 of the Negotiable Instruments Act. The High Court, while disposing of these Revisions, confirmed the convictions but modified the sentences to fines with default sentences, directing that the fines, once realized, be paid to the complainants as compensation under Section 357(1)(b) of the Cr.P.C. Firm dates were set for the payment of these fines, and failure to pay would result in coercive steps by the trial court to secure the presence of the accused for undergoing the default sentence.
The conflict arises from differing judgments by two Single Judges of the Kerala High Court: A.C. Anwar v. State of Kerala (2007(2) KLD 646) and Beena v. Balakrishnan Nair (2010 (2) KLT 1017). The former held that Section 362 does not bar the exercise of inherent powers under Section 482, while the latter ruled that inherent powers under Section 482 are controlled by express powers, including those under Section 362. The latter judgment emphasized that the High Court cannot review its final judgment except for clerical or arithmetical errors as per Section 362.
Issue 2: Permissibility of Invoking Section 482 in Light of Section 362
Section 362 of the Cr.P.C. states that no court shall alter or review its judgment or final order except to correct clerical or arithmetical errors. Section 482, however, saves the inherent powers of the High Court to make such orders as necessary to give effect to any order under the Code, prevent abuse of the process of any Court, or secure the ends of justice.
In Beena's case, the issue was whether the High Court could accept a post-revision composition between the accused and the complainant by invoking Section 482, which the Single Judge ruled against, stating it would amount to reviewing its judgment. However, the judge still facilitated justice by directing the complainant to file a statement before the Magistrate Court regarding the receipt of the fine amount, thereby regularizing the action.
Supreme Court Precedents:
Several Supreme Court judgments were considered, notably:
- Simrikhia v. Dolley Mukherjee (1990 (2) SCC 437): Inherent powers under Section 482 cannot override the bar of review under Section 362.
- Sooraj Devi v. Pyare Lal (1981 (1) SCC 500): Inherent powers cannot be used to do something expressly prohibited by the Code.
- Dr. Raghubir Saran v. State of Bihar (AIR 1964 SC 1): Inherent powers are to be exercised sparingly and only when no express power is available.
- Mary Angel v. State of T.N. (1999 (5) SCC 209): Section 482 stands independently and can be used to secure the ends of justice.
- Dinesh Dutt Joshi v. State of Rajasthan (2001) 8 SCC 570: Inherent power is to act ex debito justitiae to do real and substantial justice.
Conclusion:
The inherent powers under Section 482 are to be invoked sparingly and only in exceptional circumstances. They cannot be used to overreach statutory provisions like Section 362, which prohibits altering a judgment once signed. However, granting an extension of time for payment of fines does not amount to reviewing the substantive decision but rather facilitates justice by ensuring the complainant receives the compensation and the accused fulfills the obligation. Such extensions should be granted only once and in very exceptional circumstances, where the inability to pay was due to reasons beyond the accused's control, and it results in a complete and final settlement of issues between the parties.
Final Decision:
The High Court can extend the time for payment of fines under exceptional circumstances without offending Section 362, provided it does not alter the substantive decision of conviction and sentence. This power should be exercised only once in a case and not successively.
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2011 (5) TMI 1115
Powers of High Court in case of petition against International arbitration agreement - HELD THAT:- In terms of Clause 34.12 of the PSC entered into by 5 parties, the seat of arbitration was Kuala Lumpur, Malaysia. However, due to outbreak of epidemic SARS, the arbitral tribunal decided to hold its sittings first at Amsterdam and then at London and the parties did not object to this. In the proceedings held at London, the arbitral tribunal recorded the consent of the parties for shifting the juridical seat of arbitration to London. Therefore, mere change in the physical venue of the hearing from Kuala Lumpur to Amsterdam and London did not amount to change in the juridical seat of arbitration. This is expressly indicated in Section 53 of the English Arbitration Act, 1996.
In our opinion, the learned Single Judge of Gujarat High Court had rightly followed the conclusion recorded by the three-Judge Bench in Bhatia International v. Bulk Trading SA [2002 (3) TMI 824 - SUPREME COURT] and held that the District Court, Vadodara did not have the jurisdiction to entertain the petition filed u/s 9 of the Act because the parties had agreed that the law governing the arbitration will be English law and the provisions of Part-I of the Indian Arbitration Act would apply to international commercial arbitrations held outside India, unless the parties by agreement express or implied, exclude all or any of its provisions.
In the present case also, the parties had agreed that notwithstanding Article 33.1, the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act. As a corollary to the above conclusion, we hold that the Delhi HC did not have the jurisdiction to entertain the petition filed by the Respondents under Section 9 of the Act and the mere fact that the Appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the jurisdiction to entertain the petition filed by the Respondents.
In the result, the appeal is allowed. The impugned order is set aside and the petition filed by the Respondents under Section 9 of the Act is dismissed.
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2011 (5) TMI 1114
The Delhi High Court dismissed the appeals raised by the appellant as similar issues had been raised in earlier assessment orders for the same respondent/assessee, which had already been dismissed by the Court.
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2011 (5) TMI 1113
Issues Involved: Disallowance of excise duty claim u/s 148 of the Income Tax Act, 1961 for Assessment Year 2003-04.
Issue 1: Disallowance of Excise Duty Claim
The appellant, a private limited company, filed a return of income declaring a total loss. The Assessing Officer disallowed the excise duty claim of Rs. 12,96,995 paid in relation to processing charges from Steel Authority of India. The appellant contended that the claim was not allowed based on a Supreme Court decision, which was not applicable in their case as it was the first assessment and not a reassessment. The CIT(A) upheld the disallowance, stating that the return had been accepted and processed u/s 143(1), and no revised return had been filed within the time limit. The CIT(A) emphasized that the reopening of assessment is for the benefit of revenue and does not allow for additional claims. The appellant appealed, arguing that new claims could be made in the first assessment u/s 147. The Tribunal found that the excise duty claim was disallowed based on the Supreme Court judgment in Sun Engineering Works Pvt. Ltd., which prohibits fresh claims in reassessment proceedings. The Tribunal dismissed the appeal, affirming the disallowance of the excise duty claim.
Issue 2: Additional Grounds Raised
The appellant raised additional grounds challenging the consideration of conversion charges, the accounting system followed, and the application of the judgment in the case of Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd. The appellant also sought a reduction in conversion charges by excluding excise duty from the total income. The Tribunal considered these additional grounds but ultimately dismissed the appeal, upholding the disallowance of the excise duty claim.
This judgment by the Appellate Tribunal ITAT Mumbai addressed the disallowance of an excise duty claim by a private limited company for the Assessment Year 2003-04. The Tribunal analyzed the applicability of the Supreme Court judgment in Sun Engineering Works Pvt. Ltd. regarding fresh claims in reassessment proceedings and concluded that the claim could not be entertained. The Tribunal dismissed the appeal, affirming the disallowance of the excise duty claim and emphasizing the limitations on making new claims in the assessment process.
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2011 (5) TMI 1112
Issues involved:
The judgment involves issues related to the deduction of employees' contribution under section 36(1)(va) of the IT Act and the determination of fair market value of property as on 1-4-1981 for computing capital gains for Assessment Years 2002-03 and 2003-04.
Issue 1: Deduction of Employees' Contribution
- The revenue contended that the CIT(A) erred in allowing the deduction of employees' contribution within the grace period as per provident fund and employees' state insurance laws.
- The judgment cited decisions of Madras High Court and Shree Ganapathy Mills Company Ltd. supporting that payments within the grace period should be considered paid within the due date as defined in section 36(1)(va) of the Act.
- Despite the Calcutta High Court's judgment favoring the department, the tribunal upheld the CIT(A)'s decision based on the rule of interpretation favoring the subject in case of conflicting statutory interpretations among different High Courts.
Issue 2: Determination of Fair Market Value for Capital Gains
- The assessee sought to substitute the fair market value of property as on 1-4-1981 for the cost of acquisition to compute capital gains.
- The Assessing Officer argued that the assessee had already exercised the option in favor of the original cost of acquisition and was barred from changing it to fair market value.
- The CIT(A) held that the assessee was entitled to adopt the fair market value as on 1-4-1981 under section 55(2)(b) and directed the Assessing Officer to compute capital gains accordingly.
- The tribunal agreed that the assessee had reserved the right to exercise the option in favor of fair market value once ascertained, and allowed the benefit of claiming the fair market value for computing capital gains.
- However, the tribunal accepted the plea to examine the claim on merits by the Assessing Officer, restoring the issue of fair market value to be decided after giving due opportunity to the assessee.
Separate Judgment by Judges:
No separate judgment was delivered by the judges in this case.
This summary highlights the key issues and detailed judgments related to the deduction of employees' contribution and the determination of fair market value for computing capital gains in the mentioned assessment years.
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2011 (5) TMI 1111
Issues involved: Appeal against order of CIT(A) regarding assessment year 2006-07 u/s 143(3) of the IT Act, 1961.
Issue 1: Computation of cost of acquisition including interest on borrowed capital
The limited issue raised pertains to the computation of the cost of acquisition of assets by including interest on borrowed capital and part of the cost of acquisition. The appellant sold a property and declared long term capital gains. The Assessing Officer disagreed with the indexed cost of acquisition calculated by the assessee, considering it not in line with section 48 of the Act. The CIT(A) held that the total cost of the property, including interest paid on installments, constitutes the cost of acquisition. The indexed cost of acquisition was computed correctly at Rs. 66,81,747. The Revenue challenged the inclusion of interest paid on delayed payments as part of the indexed cost of acquisition. The Tribunal upheld the CIT(A)'s decision, stating that interest paid on delayed payments should be included in the cost of acquisition and indexed separately payment wise.
Issue 2: Interpretation of relevant sections of the Income Tax Act
The Tribunal referred to sections 48 and 55 of the Income Tax Act for guidance on the computation of capital gains and cost of acquisition. Section 48 outlines the deductions to be made from the consideration received for a capital asset transfer, including the cost of acquisition and improvement. Section 55 defines the "cost of improvement" and "cost of acquisition" for the purpose of sections 48 and 49. The Tribunal emphasized that the cost of acquisition includes the purchase price and any interest paid on borrowed capital for property acquisition. It clarified that interest paid on delayed payments should be considered part of the cost of acquisition and indexed separately. The Tribunal highlighted the distinction between cost of acquisition and cost of improvement as per the provisions of the Act.
Conclusion:
The Tribunal dismissed the Revenue's appeal against the working of the indexed cost of acquisition, affirming the inclusion of interest paid on delayed payments in the cost of acquisition. It upheld the CIT(A)'s decision that interest paid on installments forms part of the cost of acquisition and should be indexed separately. The Tribunal's decision was based on the interpretation of relevant sections of the Income Tax Act, emphasizing the definition and treatment of cost of acquisition and improvement in capital gains computation.
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2011 (5) TMI 1110
Issues involved: Appeal against the order of the CIT (Appeals) in ITA No.26/CIT (A)/LTU/09-10 dated 30.8.2010 for the A.Y. 1996-97.
Ground No.2 - Impugned reassessment barred by limitation:
The assessee challenged the assessment as barred by limitation u/s. 153(2A) of the Act. The CIT (Appeals) held that the reassessment order was not barred by limitation as the ITAT did not set aside the entire assessment for a de novo examination but only directed the AO to look into certain aspects. The Tribunal's decision was not a fresh assessment order, hence not barred by limitation u/s. 153(2A). The ld. AR contended that the Tribunal's order was received by the CIT well before the time limit for reassessment, making the reassessment order passed on 15.12.2009 barred by limitation.
Ground No.3 & 4 - Depreciation on leased assets:
The original assessment order determined the total income with differences in depreciation on pollution control equipment and interest advanced to Madhya Pradesh State Electricity Board. The CIT(A) partly allowed the appeal, and the matter was sent back to the AO by the ITAT for reexamination. The AO passed an assessment order complying with the Tribunal's decision. The assessee argued that the order was passed beyond the time limit provided u/s. 153(2A) and hence not maintainable. The Revenue contended that the order was within the time limit u/s. 153(3) as the Tribunal had passed the order with certain directions.
Conclusion:
The Tribunal held that the order passed by the AO was beyond the period of limitation u/s. 153(2A) of the Act, making it barred by limitation. As the issue of limitation was decided against the Revenue, the Tribunal allowed the appeal of the assessee without delving into the merits of the case.
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2011 (5) TMI 1109
Issues involved: Cross appeals filed by Department and assessee against order of ld. Commissioner of Income-tax (Appeals)-Durgapur regarding addition of undisclosed sales and unsupported expenditure claimed on account of subscription and donation.
Issue 1 - Undisclosed Sales:
The assessee was engaged in trading machinery items and made sales outside books of accounts. Assessing Officer treated the sales as income, as all business-related expenditure was already debited. Ld. CIT(A) confirmed undisclosed sales but considered 25% of unaccounted sales as assessee's undisclosed income, deleting the balance amount. Assessee argued that 25% profit estimation was excessive, citing past results. Department supported CIT(A)'s decision. Tribunal upheld CIT(A)'s order, noting unaccounted sales and reasonable profit estimation without separate addition for initial investments.
Issue 2 - Unsupported Expenditure:
Department disputed &8377; 9,522 claimed by assessee for subscription and donation. Tribunal referred to the necessity of contributions for local festivals as per Hon'ble Kolkata High Court's decision in CIT vs. Bata India Limited. Following the High Court's ruling, Tribunal rejected Department's appeal on this ground.
The appeals of both the Department and the assessee were dismissed, with the Tribunal upholding the orders of the ld. Commissioner of Income-tax (Appeals)-Durgapur.
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2011 (5) TMI 1108
Issues involved: Interpretation of expenses as deferred revenue expenditure u/s 260A of the Income Tax Act, 1961.
Issue 1: Differential expenses on account of trade fair and exhibition, advertising and publicity, and sales promotion
The appellant, a marketing company, claimed expenses for organizing a trade fair, advertising, and sales promotion for the assessment year 2003-04. The Assessing Officer treated these expenses as deferred revenue expenditure, estimating benefits over two years. The Commissioner of Income Tax (Appeals) affirmed this decision. However, the Tribunal allowed the appeal, stating that the expenses were revenue in nature and should be fully allowed in the year of incurring. The Tribunal found no evidence to support the benefit accruing over two years. The Tribunal cited relevant case laws to support the decision that the expenses were revenue in nature and should be allowed in full in the year of incurring. The High Court upheld the Tribunal's decision, dismissing the appeal by the revenue as devoid of merit.
Conclusion: The High Court upheld the Tribunal's decision that the expenses incurred by the appellant were revenue in nature and should be fully allowed in the year of incurring, dismissing the appeal by the revenue.
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2011 (5) TMI 1107
Issues involved: Appeal against order of CIT(A) for Assessment Year 2007-08 regarding rejection of revised claim of depreciation and failure to consider it during assessment proceedings.
Issue 1: Rejection of revised claim of depreciation
The Assessing Officer (AO) noticed that the assessee debited an amount for provision of deferred tax, which was not added back in computation of income for book profits u/s 115JB. The assessee agreed to the addition, resulting in determination of book profits. However, the assessee raised an appeal before CIT(A) stating that the revised claim for depreciation was not considered by the AO. The revised depreciation claim was higher than the original claim. The CIT(A) observed that the AO did not discuss this issue in the assessment order and hence, rejected the claim. The appellant argued that the revised claim was necessitated due to adjustments in finalizing books for AY 2009-10. The CIT(A) cited the decision in Goetz (India) Ltd. case, stating that revised claims must be made through a revised return, not during assessment proceedings. The appellant appealed against this decision before ITAT Ahmedabad.
Issue 2: Dismissal of additional ground in appeal
No additional ground was raised before ITAT. The ITAT dismissed the additional ground for statistical purposes.
Conclusion:
ITAT Ahmedabad allowed the appeal, directing CIT(A) to reconsider the issue of revised depreciation claim in accordance with law and provide sufficient opportunity to both parties. The dismissal of the additional ground was upheld.
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2011 (5) TMI 1106
Issues Involved:
1. Maintainability of the writ petition by a foreign company under Article 226 of the Constitution of India.
2. Jurisdiction of the Court to hear the writ petition in the Original Side.
3. Validity of the conciliation proceeding under the Industrial Disputes Act, 1947.
Summary:
1. Maintainability of the Writ Petition by a Foreign Company:
The petitioner, a foreign banking company, challenged the legal validity of a conciliation proceeding initiated under the Industrial Disputes Act, 1947. The respondent no. 4 raised a preliminary objection, arguing that a foreign company cannot maintain a writ petition under Article 226 of the Constitution of India. The Court held that there is no specific bar in the Constitution preventing a corporation incorporated outside the country from maintaining a petition under Article 226. The basic requirement is that the legal right of the complainant should be breached by any person or authority fitting the description of "State" under Article 12. The Court rejected the preliminary objection, stating that a foreign company can invoke the Constitutional Writ Jurisdiction to enforce their legal rights, though not based on rights preserved for citizens only.
2. Jurisdiction of the Court to Hear the Writ Petition in the Original Side:
The respondent no. 4 also objected to the jurisdiction of the Court to hear the writ petition in the Original Side, arguing that all respondents have their offices outside the Ordinary Original Civil Jurisdiction of the Court. The Court noted that if a writ petition is wrongly filed in the Original Side, it does not lead to its automatic dismissal. The practice is to direct conversion of the writ petition as an appellate side matter. The Court referred to previous judgments supporting this view and rejected the preliminary objection, stating that the cause of action arose from notices received within the Ordinary Original Civil Jurisdiction of the Court.
3. Validity of the Conciliation Proceeding:
On the merits, the petitioner argued that the respondent no. 4 is not a "workman" u/s 2(s) of the Industrial Disputes Act, 1947, and raised jurisdictional issues over the Conciliation Officer's authority. The Court found that whether a person is a workman is a question of fact, and the Writ Court would not ordinarily enter into such a factual inquiry. The Industrial Disputes Act is a self-contained code with procedures for determining issues arising from industrial disputes. The Court held that there was no ex facie illegality in issuing the notices and that the petitioner would have ample opportunity to argue their case before the appropriate forum under the Act. The Court also addressed the validity of the conciliation proceeding, noting that the earlier proceeding was closed under special circumstances, and the respondent no. 4 was given liberty to raise the dispute afresh. The Court found no illegality in proceeding with the same dispute afresh and dismissed the writ petition.
Conclusion:
The writ petition was dismissed, and all interim orders were dissolved. The Court directed the appropriate authority under the Industrial Disputes Act to take further steps expeditiously. The Court granted a stay of operation of the judgment for three weeks.
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2011 (5) TMI 1105
Issues involved: Dismissal of special leave petitions by Delhi High Court, tenant's failure to vacate premises, filing of frivolous objections, contempt petitions by landlord, alleged sub-tenant's actions, stay of warrant of possession by Additional District Judge, judicial misconduct.
Judgment Details:
The Supreme Court dismissed special leave petitions against the Delhi High Court's judgment rejecting the tenant's second appeal for eviction. The tenant was granted six months to vacate the premises but failed to do so, leading to contempt petitions by the landlord. The Court expressed concern over prolonged litigations between landlords and tenants, emphasizing the need to prevent such malpractices effectively.
After the tenant's failure to comply with the Court's order, contempt petitions were filed. The Court noted that the tenant attempted to circumvent the order by involving alleged sub-tenants, leading to a fresh round of litigation. The Court found such conduct contemptuous and unacceptable, highlighting the need for peaceful possession handover as per the tenancy agreement.
The Court issued notices and directed the alleged contemnors to be present, including the Additional District Judge who stayed the warrant of possession against the Court's order. The Court criticized the judicial misconduct, quashed the stay order, and directed the Chief Justice of Delhi High Court to take disciplinary action against the Judge.
Upon confirmation of possession handover to the landlord, the contempt notice against the contemnors was discharged. The landlord was advised to file separate proceedings for unpaid dues by the tenant. The Court directed copies of the order to be sent to all High Courts for information and appropriate action.
In conclusion, the contempt petitions were disposed of, emphasizing the importance of upholding court orders and preventing judicial misconduct for the integrity of the judiciary.
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2011 (5) TMI 1104
Issues involved: Delay in refiling, appeal u/s 260A of the Income Tax Act, 1961, penalty imposed u/s 271(1)(c) of the Income Tax Act, 1961, legality of penalty imposed by the Assessing Officer under Section 271(1)(c) of the Act, addition made by treating alleged gifts received as not genuine and bonafide transaction.
Delay in refiling: The delay in refiling was condoned by the court.
Appeal u/s 260A of the Income Tax Act, 1961: The appellant filed an appeal u/s 260A of the Income Tax Act, 1961 against the order passed by the Income Tax Appellate Tribunal, Delhi Bench "B", New Delhi, regarding the penalty imposed u/s 271(1)(c) of the Act for the assessment year 1999-2000.
Penalty imposed u/s 271(1)(c) of the Income Tax Act, 1961: The Assessing Officer initiated penalty proceedings u/s 271(1)(c) of the Act against the assessee for introducing unexplained money as gifts. The penalty was upheld by the appellate authorities based on the finding that the gifts were not genuine and the assessee failed to provide an acceptable explanation.
Legality of penalty imposed by the Assessing Officer under Section 271(1)(c) of the Act: The issue in this appeal revolved around the legality of the penalty imposed by the Assessing Officer under Section 271(1)(c) of the Act, which was upheld by the appellate authorities due to the addition made on account of alleged bogus gifts received by the assessee.
Addition made by treating alleged gifts received as not genuine and bonafide transaction: The Assessing Officer added an amount to the assessee's income on the basis of alleged bogus gifts received, which were deemed not genuine. The Tribunal upheld this addition and penalty, stating that the assessee failed to provide a satisfactory explanation for the gifts.
Conclusion: The Tribunal found no merit in the appeals, dismissing them as no substantial question of law arose in the case. The court upheld the penalty imposed by the Assessing Officer under Section 271(1)(c) of the Income Tax Act, 1961, on the grounds that the gifts were not genuine and the assessee had introduced unexplained money as gifts.
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2011 (5) TMI 1103
Issues involved: Cross appeals filed by Revenue and assessee against orders of Commissioner of Income Tax(Appeals) regarding admission of additional evidence without confronting Assessing Officer.
Summary:
The Appellate Tribunal ITAT Chennai considered cross appeals filed by the Revenue and the assessee against the orders of the Commissioner of Income Tax(Appeals). The Revenue contended that the Commissioner violated Rule-46A of the Income Tax Rules, 1962 by admitting additional evidence without confronting it to the Assessing Officer. The Revenue requested the matters to be sent back to the Assessing Officer for re-adjudication after considering the additional evidence. The assessee, while having received partial relief from the Commissioner, agreed to the matters being restored back to the Assessing Officer for re-adjudication. The Tribunal, after considering the submissions and materials on record, agreed with the Revenue's contention and set aside the orders of the Commissioner in all the appeals, directing the matters to be restored back to the Assessing Officer for fresh consideration on all issues. Consequently, all appeals filed by both the Revenue and the assessee were allowed for statistical purposes. The order was pronounced in the presence of the parties on 05/05/2011.
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2011 (5) TMI 1102
Issues involved: The judgment involves the issue of granting interest u/s 244A of the Income Tax Act on delayed refunds and the applicability of the decision in the case of Sandvik Asia Ltd. vs. CIT (280 ITR 643).
Int. Tax Appeal No. 04/Mum/2010 (A.Y. 1999-2000):
The assessee contended that interest u/s 244A should be granted on the refund amount due to the delay in giving effect to appellate orders. The Assessing Officer (A.O.) calculated interest on the refund amount but did not grant interest on certain refunded sums. The CIT(A) directed the A.O. to grant interest u/s 244A up to the date of refund issuance. The Tribunal referred to the decision in the case of Sandvik Asia Ltd. v. CIT and held that the assessee is entitled to interest on the delayed refund amount. The Tribunal emphasized that whenever there is a delay in refunding the amount due to the assessee, the department must pay compensation by way of interest. Consequently, the order of the CIT(A) was set aside, and the A.O. was directed to pay interest u/s 244A to the assessee as per law.
Int. Tax Appeal No. 05/Mum/2010 (A.Y. 2000-01):
The grounds raised by the assessee in this appeal were found to be identical to those in the previous appeal for A.Y. 1999-2000. Following the decision in the earlier appeal, the Tribunal allowed the grounds raised by the assessee in this case as well. Consequently, both appeals filed by the assessee were allowed.
In conclusion, the Appellate Tribunal ITAT Mumbai, in the cited judgment, addressed the issue of granting interest u/s 244A of the Income Tax Act on delayed refunds. The Tribunal referred to the decision in the case of Sandvik Asia Ltd. v. CIT and emphasized that the department must pay compensation by way of interest for any delay in refunding amounts lawfully due to the assessee. The Tribunal set aside the CIT(A)'s order and directed the Assessing Officer to pay interest to the assessee as per law in both appeals filed for A.Y. 1999-2000 and A.Y. 2000-01.
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