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Showing 161 to 180 of 1634 Records
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2023 (8) TMI 1474
Classification of service - supply of tangible goods service to the Indian Railways - whether the appellant had transferred possession and effective control of the wagons to the Indian Railways under the terms of the Agreement? - HELD THAT:- There is no manner of doubt that in terms of Clause 4.1 of the Agreement, the right of possession and effective control of the wagons had been transferred by the appellant to the Railways as the wagons provided by the appellant merged and operated under the general pool of wagons of the Indian Railways. This fact also finds support from the Certificate dated 25.03.2015 issued by the Indian Railways.
The Commissioner was not justified in recording a finding that the appellant had provided supply of tangible goods service to the Indian Railways.
It is not possible to sustain the impugned order dated 29.05.2015 - appeal allowed.
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2023 (8) TMI 1473
Eligibility of depreciation on the right to collect annuity on the toll road constructed by it as an intangible asset u/s 32(1)(ii) - AO rejected the claim of the assessee on the ground that the company had no ownership rights or entitlements in the said Toll road; and therefore according to him, the assessee is not entitled for depreciation as per section 32. however allowed the amortization of expenditure incurred on the said road - HELD THAT:- Assessee an Infra Development Company that has constructed road on BOT basis on the land owned by the Central Government would be eligible for claim of depreciation in respect of its intangible right i.e. right to collect annuity u/s. 32(1)(ii) which is squarely covered by the Special Bench decision of Progressive Construction Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD] and also the decision of the Tribunal in assessee’s own case for AY 2010-11 wherein the Tribunal held that the assessee is eligible for depreciation on intangible assets which falls within the scope of section 32(1)(ii) of the Act - we direct AO to grant the assessee claim of depreciation @ 25% on the opening WDV on toll roads constructed as per the agreement with NHAI commencing on 15.09.2006. Decided in favour of assessee.
Correct head of income - Interest Income as “Income from Business” or “Income from Other Sources” - HELD THAT:- CIT(A), accepting the contention of the assessee that in the facts of the case, the assessee by virtue of agreement between the NHAI/lender banks had to deposit the receipts/annuity in the Escrow account and not in the current account and had to invest the amount only in “Permitted Investments”. Accordingly, the interest income have nexus with the business receipts/annuity. And therefore, the Ld. CIT(A) has allowed the claim of the assessee
We find that the Ld. CIT(A) have found that the assessee has deposited the “annuity” received from NHAI as fixed deposit in view of the “Permitted Investments” as per the agreement with NHAI/lenders. According to the Ld. CIT(A), the interest income has direct link with the business activity of the assessee. And therefore, according to him, the same need to be treated as “Income from business” ; and the Ld. CIT(A) also noted that the other activities for which the sums are deposited relate to operation and maintenance of the roadway and hence, the income earned was generated out of business activity.
Respectfully following the Tribunal decision in assesse’s own case for AY. 2010-11 [2016 (7) TMI 1539 - ITAT MUMBAI] we confirm the action of Ld CIT(A) and dismiss the ground of appeal of the revenue.
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2023 (8) TMI 1472
Scope for Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issue involved in this writ petition requires affidavit from the respondent for final adjudication.
List this matter for final hearing in the monthly list of December, 2023.
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2023 (8) TMI 1471
Application for tax deduction certificate u/s 197 - petitioner’s application seeking issuance of a certificate for deduction of tax at source at “nil” rate - Assessee received monetary compensation against 33,482 Employee Stock Options (ESOPs) from a group company of its previous employer a company incorporated in Singapore - HELD THAT:- We notice, albeit upon perusal of the impugned order that initially, the ESOPs granted to the petitioner numbered 1,27,552; this position obtained as on 01.11.2014.
It appears that because of disinvestment carried out in FPS, the value of the stock options held by the petitioner on the record date tumbled to 33,482, and, therefore, the aforementioned amount was paid, according to the petitioner, as compensation.
We would like the petitioner to place on record the details as to how the stock options fell from the initial number, i.e., from 1,27552 to 33,482. Learned counsel for the petitioner says that he will file an additional affidavit to explain the exact position.
The affidavit will be filed within the next 10 days; a copy of which will be furnished to Mr Prashant Meharchandani, learned senior standing counsel, who appears on behalf of the respondents/revenue.
List the matter on 06.10.2023.
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2023 (8) TMI 1470
Jurisdiction of the Second Appellate Court - Claim of adverse possession over Government land - Bar of jurisdiction u/s 20 by the Kerala Land Conservancy Act, 1957 (Act) - Requirements and burden of proof for adverse possession - Whether the claimants have perfected their title over the property, subject matter of dispute, by adverse possession -
HELD THAT:- A perusal of the judgement impugned does not reflect any question of law, either substantial or "involving in the case" to have been framed by the Court in the Second Appeal. The Section 100, Code of Civil Procedure jurisdiction is not akin to the jurisdiction conferred Under Section 96 of Code of Civil Procedure wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal."
In view of the principles laid down in the above stated judgements, the impugned judgement must be faulted with for not complying with the well-established contours of Section 100, Code of Civil Procedure.
We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar.
The claimants via a claim of adverse possession seek to be declared the owners, by lapse of time of land belonging to the government. When faced with this situation, it is clear that the Court is required to consider this question "more seriously". The first part of burden of proof as discussed in Revamma [2007 (4) TMI 738 - SUPREME COURT] is undoubtedly met with since the subject land being Government land, was never in dispute. The burden of proof once shifted, it was for the claimants to prove their possession to be openly hostile to the rights of the government.
By way of evidence adduced, nothing, save in except testimonies of villagers, has been brought on record. A perusal of such evidence also shows no decisive statements being made and instead, on the basis of the estimated age of trees on such land, is the length of possession of the Respondents being calculated.
An estimation of age of the trees cannot be, by any stretch, termed as sufficient proof required to disturb the title that undisputedly rests with the Government as also testified by PW-1 and PW-2. Proper and concrete proof as required would need for the claimants to show some proof of possession, other than statements which may be vague. It is also clear from the discussion that merely a long period of possession, does not translate into the right of adverse possession. Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights.
It is a matter of record that proceedings of ejectment of the claimant stood initiated before the concerned Tehsildar in which claimant neither pleaded nor claimed title by way of adverse possession. To the contrary, the unauthorised occupation was not disputed, with the only plea being taken of having planted certain trees (rubber trees), put to use for rubber tapping.
It is for the first time in the written statement that the factum of passing the order under The Act was brought to the notice of the Civil Court which fact was neither refuted to nor explained by way of replication.
That apart, joint reading of the testimonies of PW1 (Brajeetha), PW3 (Cherian) and PW4 (Narayanan), do not in any manner establish the factum of the claimant having ever claimed the possession hostile to that of true owner i.e., the State.
Their testimonies only establish Plaintiffs/claimants' possession and having put the land to use for planting trees, though with a variation of period, i.e., about 15 to 40 years. Be that as it may, it has come on record with some variations that the rubber trees were planted just about 15 to 18 years prior to the date on which the depositions were recorded.
On oath, in a specific query put to PW 1 as to whether there is no record to establish suit the property to be in their possession from the year 1940 onwards, there is a categorical denial. Equally the witness denies having any proof of residing in the property, since 1940, adjacent to the property subject matter of the suit.
All that it is stated is that the property was being enjoyed, assuming the same to be theirs.
It is in this view of the matter, we find that the findings returned by the High Court holding the witnesses, more particularly PW1 to PW5 to have established the claimants' claims by way of adverse possession to be erroneous.
Thus, the appeal is allowed. The judgement of the High Court in S.A. 740 of 1995 dated 5th August,2009 is set aside, and the judgement rendered by the First Appellate Court in Appeal Suit No. 3 of 1991 dated 3rd April, 1995 is restored.
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2023 (8) TMI 1469
Disallowance of deduction claimed u/s 80G - expenditure incurred in Corporate Social Responsibility ("CSR") - According to the Revenue, when once such sum went to satisfy the requirement of section 135 of the Companies Act, the benefit gets exhausted and such an amount is no more available for the purpose of claiming deduction u/s 80G - HELD THAT:- Coming to the Income Tax Act, 1961, there is no express provision to support the contention of Revenue. On the other hand, section 80G(2)(iiihk) and (iiihl) of the Act expressly provide that such sums donated for Swatch Bharath Kosh and Clean Ganga Fund shall be the amounts other than the sums spent by the assessee in pursuance of CSR, meaning thereby the donations made towards Swatch Bharath Kosh and Clean Ganga Fund spent as a part of CSR are not qualified for deduction under section 80G of the Act. Out of so many entries under section 80G(2) of the Act, only donations in respect of two entries are restricted if such payments were towards the discharge of the CSR. The Legislature could have put a similar embargo in respect of the other entries also, but such a restriction is conspicuously absent for other entries. The irresistible conclusion that would flow from it is that it is not the legislative intention to bar the payments covered by section 80G(2) of the Act which were made pursuant to the CSR, and other than covered by section 80G(2)(iiihk) and (iiihl) of the Act. As stated above, clue can be had from the restrictions by way of section 80G(2)(iiihk) and (iiihl) of the Act.
We hold that inasmuch as the assessee satisfied the conditions of section 80G of the Act, the assessee is entitled to claim deduction under section 80G of the Act in respect of such donations which formed part of the spend towards CSR. Accordingly, we hold Ground No.2 in favour of the assessee.
TDS short credit - As submitted that after passing of the rectification order dated 03/09/2022, allowing the TDS credit, an amount relates to Rail Tel Corporation of India was not addressed. We, therefore, direct the AO to verify this issue and grant TDS credit in respect of Rail Tel Corporation of India also in accordance with law.
Adjustment to the book profits u/s 115JB and interest under section 234C are pending with the learned Assessing Officer and a direction may be given to the learned Assessing Officer to dispose of that application expeditiously. Since the assessee sought rectification and such a request is pending before the learned AO, AO will verify the record and dispose of such an application as expeditiously as possible.
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2023 (8) TMI 1468
Weighted deduction u/s 35(2AB) - expenditure incurred on scientific research in in-house research and development facility - Department restricted the assessee’s claim of weighted deduction to the extent of expenditure which was approved by the prescribed authority i.e. DSIR in Form 3CL - scope of amendment to section 35(2AB)
HELD THAT:- As w.e.f. 1-4-2016, the requirement of law underwent a change to the effect that on entering into agreement with DSIR in Form no.3CK, the assessee was required to submit information of its expenditure incurred inhouse research and development facility on land, building, capital and revenue expenditure, every year to the prescribed authority in Annexure-2 of Form no.3CK and prescribed authority was required to quantify the expenditure eligible for weighted deduction in Part-B of the Form No.3CL.
What derives from the above, therefore, is that consequent to amendment to section35(2AB) by the Finance Act, 2015 w.e.f. 1.4.2016, requirement of law was that the prescribed authority had to quantify the quantum of eligible expenditure incurred on in-house research and development facility by the assessee. But prior to that there was no such requirement inlaw and the prescribed authority was the only required to grant approval to the in-house research & development activity.
The impugned assessment year before are Asst.Year 2014-15 & 2015-16. Since these assessments are prior to 1.4.2016, the amendment to section 35(2AB)) are not applicable to the same and in terms of un-amended provisions of section 35(2AB) of the Act, since we have held above that the prescribed authority was not required in law to quantify the amount of expenditure incurred on in-house research and development facility, such quantification, if any done by the prescribed authority in Form No.3CL was not required to be taken cognizance of by the Revenue authorities and the assessee is entitled to claim weighted deduction on all expenditure incurred by it, on in-house research & development facility.
Revenue has erred in restricting the claim of weighted deduction under section 35(2AB) of the Act to the extent approved by the prescribed authority i.e. DSIR - we direct the AO to allow full benefit of claim of weighted deduction to the assessee to the extent claimed in the P&L accounts - Decided in favour of assessee.
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2023 (8) TMI 1467
Validity of reassessment proceedings - notice issued beyond four years - pre-requisite under the First Proviso to section 147 - reason to believe or suspect - AO received certain information from Investigation Wing regarding acceptance of alleged bogus unsecured loans by the assessee - failure on the part of the assessee to disclose the material facts fully and truly or not? - HELD THAT:- AO on the basis of examination of Balance Sheet of M/s. Mangal Murti Impex Pvt Ltd has come to the conclusion that the income in the hands of the assessee has escaped assessment. However the reasons which have been recorded by the AO for reopening of the assessment do not disclose that the assessee had failed to disclose fully and truly all material facts necessary for the purpose of assessment.
In fact we notice that during the first round reassessment, the assessing officer has called for the details pertaining to the loan transactions and that the assessee has submitted the loan details including the loan confirmation, Bank statement, and the return of income of M/s. Mangal Murti Impex Pvt Ltd.
There is merit in the argument that there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment. We in this regard notice that the reasons recorded do not allege any failure on part of the assessee to disclose material facts which is the basis on which the reopening is done. In the reasons recorded, AO has elaborated only about the survey proceedings of JPV Group and the enquiry done with regard to the loan transactions of JPV group with certain non-genuine parties including M/s. Mangal Murti Impex Pvt Ltd. The Assessing Officer has not mentioned about any new material that has been brought on record with regard to the loan transaction basis which assessee's case is reopened.
A mere recording that "I have reason to believe that the income chargeable to tax above Rs 1 Lakh has escaped assessment for the A.Y. 2011-12 in the case of the said assessee within the meaning of section 147 of the Income Tax Act, 1961" does not mean that the restriction imposed by the proviso to Section 147 of the Act is fulfilled by the Assessing Officer.
Thus in the absence of any allegation of any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment in the notice for reassessment issued after the expiry of four years from the end of the relevant assessment year under section 148 of the Act, is barred by limitation prescribed in proviso to section 147 of the Act, without jurisdiction - Decide in favour of assessee.
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2023 (8) TMI 1466
Condonation of delay in filing the appeal - delay of 38 days beyond the expiry of limitation - application u/s 7 has been dismissed as non-maintainable - HELD THAT:- The present is a case where it cannot be held that the application filed for restoration was in a wrong forum which could not be decided for the defect of jurisdiction or of like nature. Conditions as contemplated u/s 14 are not attracted to extend the benefit u/s 14 to the Appellant.
The judgement of Hon’ble Supreme Court in Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr. [2021 (3) TMI 1183 - SUPREME COURT] was a case where the benefit was extended u/s 14 of the Limitation Act with regard to period during which writ petition was pending challenging the proceedings under SARFAESI Act. Hon’ble Supreme Court in the said judgement has taken the view that the benefit of the proceedings could have been extended for the purpose - It was held that since SARFAESI proceedings which were stayed by the High Court which proceedings by the Cooperative Bank were without jurisdiction due to which the Financial Creditor was unable to proceed further under the SARFAESI Act - The facts of the case Sesh Nath Singh & Anr. are entirely different and are not attracted in the present case.
The Appellant has placed reliance on another judgement of the Hon’ble Supreme Court in M/s Laxmi Srinivasa R and P Boiled Ricel Mill Vs. The State of Andhra Pradesh & Anr. [2022 (12) TMI 822 - SUPREME COURT] In the case before the Supreme Court, the writ petition was filed in High Court and thereafter proceedings were initiated and the appeal was filed before the Appellate Tribunal for exclusion of the period. The Hon’ble Supreme Court directed the Appellate Authority to examine the appeal on merits - The above case was again the case where benefit of section 14 was allowed due to the proceedings of writ petition, which was held has not maintainable. The facts of the said case are also entirely different.
Appellant is not entitled to the benefit of Section 14 of the Limitation Act - the jurisdiction to condone the delay is limited to only 15 days - the prayer to condone the delay of 38 days beyond the expiry of limitation cannot be accepted.
The application for condonation of delay is rejected.
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2023 (8) TMI 1465
Validity of final assessment order passed u/s 147 r/w sec 144B - addition based on witness statement recorded u/s 131 - lack of opportunity to cross-examine a witness - HELD THAT:- On perusal of the aforesaid impugned assessment order we find that the AO has passed the appellable assessment order by recording reasons in detail and find that the assessing officer could not be faulted since he has tried his level best to facilitate the cross-examination of the said witness and in addition the assessing officer has also recorded that he has completed the assessment on the basis of records available to him and it is not a case that while passing the aforesaid impugned assessment order the assessing officer has relied simply and only on the statement of the aforesaid witness.
This writ Court is not a fact finding authority and cannot act as an appellate authority to reappreciate the evidence and come to a different conclusion and this is not a case of patent violation of principle of natural justice - WP dismissed.
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2023 (8) TMI 1464
Money Laundering - Seeking grant of bail - illegal delivery of various items inside the premises of Tihar Jail - bail application has been opposed by the ED predominantly on the ground that the petitioner had been working for main accused Sukesh Chandrashekhar and her co-accused wife Leena Maria Paul - HELD THAT:- It is a settled proposition that at the stage of bail, the court is only required to see the prima facie case and is not allowed to meticulously examine or appreciate the evidence or test the probative value of the witnesses. The court is required to maintain a delicate balance between the judgment of acquittal and conviction and an order granting bail before the commencement of the crime.
Even in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] it has been inter alia that the court at the stage of considering the application for grant of bail, is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act. Thus, the court at this stage can grant the bail on the principle of broad probabilities. The court at this stage is required to examine the material in a broad manner and evaluate whether it can reasonably be said that the guilt of the accused can be proved. The court is only required to reach on a prima facie view based on a reasonable and prudent view without meticulous examination of the material collected during the investigation.
In the present case, the accused petitioner was a young girl of around 25-26 years of age. It is an admitted case that she was employed by Leena Maria Paul as Salon Sales Manager in Nail Artistry Salon. The possibility of a young girl with an immature mind falling to the tricks of alleged accused Sukesh Chandrashekhar cannot be ruled out at this stage - Persons of such tender age sometimes in the anxiety of getting easy money may deviate. The facts of each case are peculiar in nature. The present case involves act of a young girl who joined private service and finally ended up to allegedly committing serious offence. The allegation of the petitioner in the present case requires to be tested on evidence and in particular 'mens rea'. There is also no material on record to suggest that the petitioner will commit offence of similar nature, if released on bail.
Taking into account the totality of the facts and circumstances and in particular of the fact that the petitioner is a young girl of 25-26 years is entitled to be admitted to bail. Accordingly, the petitioner is admitted to bail on her furnishing personal bond in the sum of Rs. 50,000/-with one surety of the like amount to the satisfaction of the trial court, subject to the fulfilment of conditions imposed - bail application allowed.
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2023 (8) TMI 1463
Rejection of second bail application filed by the appellant under Section 439 Cr.P.C. - appellant was involved in the explosives or not - It is contended that incriminating no tower material was found in the mobile recovered from the appellant and the car location also did not connect with the other co-accused - HELD THAT:- Looking to the fact that prima facie there is evidence against the accused; that he was earlier also arrested for the offence under UAPA Act in the year 2015; that there is disclosure statement of other co-accused with regard to his presence in the meetings; that he himself has given information under Section 27 of Evidence Act; that mobile phones have been recovered from the appellant which had connectivity with the other co-accused; that there is a specific bar under proviso to Section 43D(5) of UAPA Act, we are not inclined to entertain the present criminal appeal.
Appeal dismissed.
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2023 (8) TMI 1462
Assessment against dead person - HELD THAT:- It is a settled position of law that assessing officer cannot frame the assessment on dead person - As decided in M/s. Maloo Construction Pvt. Ltd. [2022 (1) TMI 781 - ITAT SURAT] continuation of the legal proceeding under the Income Tax Act, in the name of dead person or company, is without authority of law.
Thus, we note that assessment cannot be made on the person/company who has died/dissolved and this issue is no longer res integra. For this reliance can be placed on the judgment of the Hon’ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd. [2019 (7) TMI 1449 - SUPREME COURT] Therefore, we quash the assessment order passed by the assessing officer against dead person. Assessee appeal allowed.
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2023 (8) TMI 1461
Addition u/s 68 - unsecured loan taken by the assessee - scope of amendments brought in Section 68 - Assessee submitted when the transaction were through banking channel and there was no cash entries in the accounts of the investors there was no reason to disbelieve the unsecured creditors - HELD THAT:- As in the case in hand the material evidence produced by the assessee has been duly examined by CIT(A) and there is no dispute with regard to identity of the parties, the amounts were paid by them through banking channels. They themselves did not receive any amount cash in the immediate vicinity of the transactions.
The 2022 amendment in Section 68 of the Act takes effect from 1st April, 2023 and will accordingly apply in relation to the assessment year 2023-24 and subsequent assessment years. The amendment is the illustration of application of ‘Mischief Rule’ in interpretation of statutes. Memorandum explaining the amendment makes it crystal clear that amendment is proposed to remove doubts created by certain judicial rulings about the onus of proof of source of source. The principle may have been there in certain judgments in favor of Revenue, but now once this amendment has specifically made applicable the principles with effect from AY 2023-24, the Bench cannot apply retrospectively.
If this evidence was insufficient to the satisfaction of AO then the burden was on AO to have at least brought on record some evidence during the remand proceedings to show that the parties transacting with assessee were not genuine. The burden when discharged by the assessee by substantial evidence the onus shifted on AO to discredit the same with some evidence, direct or circumstantial, and not just bald assertions on his own belief and dissatisfaction. The grounds raised have no substance. Appeal of Revenue is dismissed.
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2023 (8) TMI 1460
Prayer for a direction to the respondents to furnish the reason for denying permission to the petitioner to travel outside India and provide copies of order/circular (including Look Out Circular)/instructions issued against the Petitioner by the Respondents - HELD THAT:- In view of the observations made by this Court in PAWANJOT KAUR SAWHNEY VERSUS BUREAU OF IMMIGRATION & ANR. [2022 (12) TMI 1513 - DELHI HIGH COURT] and a perusal of the sealed cover report submitted by Respondent No. 3/SFIO, it is noted that the allegations against the Petitioner are under investigation and at a crucial stage. As per the guidelines laid down by the Ministry of Home Affairs to enable a court to quash an LOC, there should be no risk in the economic interest of the country and the person should not be a flight risk which would in turn jeopardise the bilateral relations of India with any other country.
It is well settled that economic offences constitute a class apart and need to be visited with a different approach. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
It is trite law that judicial review is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
The Petitioner does not have roots in the country. The allegation against the Petitioner is that she is actively involved in siphoning off a substantial amount of about Rs. 208 crores and the investigation against the Petitioner, as is revealed from the sealed cover, is at a crucial stage. The apprehension of the SFIO that if the Petitioner is now permitted to go out of the country it would not be possible to get her in the country, cannot be said based on nil evidence or that this apprehension is unjustified.
This court is, therefore, not inclined to quash the LOC dated 13.06.2022 and allow the petitioner to travel abroad - Petition dismissed.
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2023 (8) TMI 1459
Issuance of Look out Circular - petitioner is not declared as a proclaimed offender by any Indian court nor is evading/has evaded any court proceeding pending trial in India - HELD THAT:- The issuance of LOCs in respect Indian Citizens and foreigners was governed by an Office Memorandum No. 25016/31/2010-Imm dt.27.10.2010, which permits Look Out Circulars to be opened essentially against persons involved in cognizable offences who are evading arrest and their appearance in trial courts despite coercive measures with the likelihood that they would leave the country to evade trial or arrest. The intention of issuing an LOC was to act as a coercive measure to make a person surrender to the Court of Law or investigating agency.
The validity and legality of LOC's therefore, heavily depends on the prevailing circumstances governing the date on which such an LOC request is being made.
Based on the materials placed on record in the instant case, this Court is of the opinion that no exceptional case of adverse effects on India's economic interest exist - In the present case, there is no LOC against the Petitioner. The LOC was issued against the petitioner who, along with his company M/s AR Intl (Hong Kong) Limited, had already been adjudged Bankrupt by the Hon'ble High Court of Hong Kong. Additionally, the company's creditors, during a General Body meeting held on 22.03.2019 had appointed joint and several Trustees to take over and manage the estate of the bankrupt with immediate effect, being a process in which the Respondent bank had already partaken.
The issuance of LOC, despite the respondent bank already participating in the securing of the rights via winding up process on M/s AR Intl (Hong Kong) Limited which took place in Hong Kong and the subsequent declaration of discharge of the petitioner thereof, is excessive and without any due merit. It is amply evident that the petitioner has no criminal case mentioned against him by the respondent in India. All civil, criminal and recovery proceedings were undertaken by the Respondent Bank against the petitioner in Hong Kong, which have all reached their logical ends - LOC is a major impediment for a person who wants to travel abroad. There are plethora of judgments which states that no person can be deprived of his right to go abroad other than for very compelling reasons.
The right to travel abroad is a basic human right and a part of Article 21 of the Constitution of India and no person can be deprived of this right without following the due process of law. Any State action must satisfy the requirements of Articles 14, 19 & 21 of the Constitution of India and must be reasonable and non arbitrary. The Courts in such cases will have it well within their mandate under Article 226 to intervene in the said decisions of the Look Out Circular Issuing authorities to prevent such unreasonableness and perversity and in ensuring adequate conformity to both the form and substance of the standards set in the Official Memorandums from which the power to issue LOCs are derived.
The writ petition is allowed.
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2023 (8) TMI 1458
Grant of blanket exemption from personal appearance u/s 205 of the Code of Criminal Procedure, 1973 - Seeking grant of bail - money laundering - proceeds of crime - materials procured by the petitioner from the proceeds of the crime of illegal possession and sale of Monitor Lizard hemipenises - whether a case for exemption from personal appearance is made out? - HELD THAT:- The blanket exemption as prayed by the petitioner cannot be granted under Section 205 of the Code of Criminal Procedure, 1973. However, if for sufficient and cogent reasons, the petitioner is unable to appear before the Trial Court, he can always make an application through his advocate for grant of exemption from personal appearance.
SLP disposed off.
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2023 (8) TMI 1457
Maintainability of application under Section 7 of IBC - application barred by limitation which is prescribed under Article 137 of the Limitation Act, 1961 or not - Appellant made various payments up to February, 2017 but also on 07.03.2019 sent a proposal for one time settlement of term loan which tantamounts to acknowledgement - it was held by NCLAT that 'There is hardly any substance in the present appeal for the purpose of interfering in the order of admission on the ground of limitation.'
HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2023 (8) TMI 1456
Rectification of mistake u/s 154 - Addition u/s.36(1)(va) r.w.s. 43B - Delayed deposit of employee’s share of contributions towards ESI/PF - HELD THAT:- On a careful perusal of the statutory provision r.w. settled position of law as had been expounded in various judicial pronouncements, we find that it is only in a case where an order passed by the A.O is found to be suffering from a mistake which is glaring, patent, apparent and obvious from record that a recourse can be sought for rectification of the same u/s.154 of the Act. Our aforesaid view is supported by the landmark judgment of T.S. Balaram ITO [1971 (8) TMI 3 - SUPREME COURT] as held that power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record".
Considering the limited scope of Section 154 of the Act, we are of the considered view that as the issue involved in the present appeal, i.e. disallowance u/s.36(1)(va) of the Act of the assessee’s claim for deduction of the delayed deposit of employees share of contribution towards ESI/PF at the relevant time was not free from doubts and debate, therefore, the same could not have been brought within the realm of rectification u/s.154.
Our aforesaid conviction is all the more fortified by the fact that as the assessee has assailed the order passed by the A.O u/s.154 of the Act, inter alia, on the ground that prior to the judgment of Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT] there were two school of thoughts on the issue in hand, i.e. as to whether or not the delayed deposit of the employees share of contribution towards ESI/PF was allowable as deduction u/s.43B of the Act, therefore, for the said reason no disallowance of the same could have been made u/s.143(1) of the Act. The aforesaid contention of the Ld. AR takes the case of the assessee beyond the scope and ken of Section 154 of the Act. Decided against assessee.
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2023 (8) TMI 1455
Addition u/s 68 - assessee has failed to furnished any satisfactory explanation of the source of cash deposited during demonetization period - CIT(A) deleted addition - HELD THAT:- Since the assessee company, as per the AO is in the business of real estate, then the keeping cash on sites of construction and keeping main cash books in the central office is a normal practice to be adopted by such company therefore ignoring main cash book is a vital omission on the part of AO which was resulted into difference in the amount of cash deposit and cash balance only based on site cash books ignoring the main cash book.
CIT(A) has relied on the judgment of Kulwant Rai [2007 (2) TMI 185 - DELHI HIGH COURT] and Jaya Aggarwal [2018 (3) TMI 1358 - DELHI HIGH COURT] observed that when the assessee has shown cash withdrawals during pre demonetization period more than the cash deposited during demonetization then the source cannot be disputed merely on the assumption that such withdrawn amount may have spent by the assessee for some other purpose without any adverse positive material showing such facts.
Hon’ble jurisdictional High Court held that in absence of any material in support of the view that withdrawals were spent for some other purpose, the conclusion of Tribunal has to be held has right in treating the cash withdrawals from the bank as source of cash found.
Thus, as we have noted above, the AO has ignored main cash book while disputing the source of cash and making addition and the ld. CIT(A) considered entire facts and circumstances in the right prospective, no valid reason to interfere with the findings arrived by the ld. CIT(A) - Decided against revenue.
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