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Showing 61 to 80 of 1860 Records
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2018 (6) TMI 1802
Validity of Revision of assessment - service of pre-assessment notices on petitioner - petitioner submits that one opportunity may be granted to the petitioner to go before the Assessing Officer - HELD THAT:- This Court is of the view that one opportunity can be granted to the petitioner, however, subject to a condition.
The writ petitions stand disposed of with a direction to the petitioner to pay 15% of the tax demanded in each of the impugned orders within a period of three weeks from the date of receipt of a copy of this order. If the said condition is complied with, the petitioner is entitled to treat the impugned orders as show cause notices and submit their objections within a period of two weeks therefrom - Application disposed off.
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2018 (6) TMI 1801
Validity of assessment order - non-service of revision notices on the petitioner - paver finisher machine purchased by the petitioner - motor vehicle or not and is capable of plying on the road or not - HELD THAT:- This Court is of the view that the assessment should be redone by considering the petitioner's objections.
In the result, this writ petition is disposed of by directing the petitioner to treat the impugned order as a show cause notice and submit their objections within a period of fifteen days from the date of receipt of a copy of this order. On receipt of the objections, the respondent shall consider the same as well as the documents on brochures that the petitioner may produce and if necessary, the respondent can inspect the equipment and then after affording an effective opportunity of personal hearing, redo the assessment in accordance with law. Till the assessment is completed in terms of the above direction, no coercive action shall be initiated against the petitioner.
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2018 (6) TMI 1800
Short Term Capital Loss (on which STT was paid) set off against the Short Term Capital Gain (on which STT is not paid) - AO held that the assessee cannot set off the short term capital gain (Non STT paid) against the short term capital loss of STT related transaction because the STCG earned on account of Non STT paid chargeable to tax @30% whereas assessee opted to set off STT paid STCL liable to tax@10% under section 111A against the STCG earned on account of non STT paid which is chargeable to tax @30% under the Act - HELD THAT:- CIT(A) by following the decision in case of First State Investments (Hongkong) Ltd. [2009 (7) TMI 908 - ITAT MUMBAI], Fidelity Investment Trust Fidelity Overseas Fund [2009 (8) TMI 856 - ITAT MUMBAI] and ADIT v. Legg Mason Asia (Ex Japan) Analyst Fund [2013 (11) TMI 361 - ITAT MUMBAI] held that the assessee is entitled to set off STCL (STT paid) against STCG (non STT paid) transaction as computed during the year. Therefore, the assessing officer is directed to allow set off the STCG earned on (non STT) transaction. We have noted the ld. CIT(A) passed order by following the various orders of Tribunal, hence, we do not find any reasons to interfere with the order. No contrary decision was brought to our notice. Therefore, the ground of appeal raised by revenue is dismissed - Appeal filed by the revenue is dismissed.
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2018 (6) TMI 1799
Estimation of Income - Bogus purchases - CIT-A Restrict disallowance @ 12.5% of total purchase - HELD THAT:- So far as the genuineness of the transaction is concerned, we are satisfied upon the method and manner applied by the Ld. CIT(A) in coming to the conclusion on the basis of the content of the remand report, other evidences and specially on the bank statement of the suppliers which was, in fact, obtained by the AO himself and we thus declined to interfere with the same. The appeal preferred by the Revenue on this ground is dismissed.
As relying on GUJARAT AMBUJA EXPORT LTD VERSUS ASSTT COMMISSIONER OF INCOME TAX [2013 (9) TMI 198 - ITAT AHMEDABAD] we think it fit to modify the order passed by the Ld. CIT(A) by disallowing 5% from 12.5% as made. Appeal of assessee is partly allowed.
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2018 (6) TMI 1798
TDS u/s 194I - Disallowance u/s 40(a)(ia) - assessee did not deduct any tax at source from such rental payment - HELD THAT:- The essence of this provision is that if the payer has not made deduction of tax at source, but the payee has furnished his return of income u/s 139 by including the amount received from the assessee-payer, then the assessee shall be deemed to have deducted and paid tax on the date of furnishing of return of income by the payee and as such no disallowance u/s 40(a)(ia) will be made. Though this proviso has been inserted by the Finance Act 2012 w.e.f. 1.4.2013 but several courts have held it to be retrospective.
In CIT vs. Ansal Landmark Township Private Limited [2015 (9) TMI 79 - DELHI HIGH COURT] has held that second proviso to section 40(a)(ia) is declaratory and curative in nature and has retrospective effect from 1.4.2005. On a conjoint reading of second proviso to section 40(a)(ia) and first proviso to section 201(1), it becomes graphically clear that if the payee has furnished his return of income under section 139 and has taken into account such sum paid by the payer for computing income in such return of income and has paid income tax thereon, then the payer cannot be treated as assessee in default. A fortiori, no disallowance under section 40(a)(ia) can be made in such circumstances.
Adverting to the facts of the instant case, it is seen that the assessee paid a sum to Bharat Petroleum Corporation Limited. There can be question of suspecting that the BPCL did not include such rental income from the assessee in its return of income. It is, therefore, held that the case of the assessee is covered by second proviso to section 40(a)(ia) and hence the disallowance made cannot be sustained. I, therefore, order to delete the disallowance. This ground is allowed.
Addition of cash handling expenses to certain persons - AO disallowed the same by holding that no evidence of incurring such expenses was furnished - CIT(A) echoed the disallowance - HELD THAT:- After considering the rival submissions and perusing the relevant material on record, it can be seen that the assessee paid cash handling charges to certain persons on monthly basis. Vouchers for such payments have been placed on record. Since such expenses were incurred during the course of business and were necessary for carrying on the business, in my considered opinion, the same should not have been disallowed, therefore, order to delete the addition.
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2018 (6) TMI 1797
Penalty u/s 271(1)(c) - addition u/s 40(a)(ia) - HELD THAT:- Deduction of TDS is a debatable and technical issue; therefore, at least penalty cannot be imposed. Admittedly, the provision of section 40(a)(ia) is a deeming section which creates legal fiction, therefore, the disallowance made simply invoking the provision will not attract penalty for concealment or furnishing of inaccurate particulars of income.
Hon'ble Apex Court in Hindustan Steel Ltd. vs State of Orissa [1969 (8) TMI 31 - SUPREME COURT] supports our view, wherein, it was held that ‘the authority competent to impose the penalty will be justify in refusing the penalty where there is a technical or venial breach of provision or where the breach flows from a bon-fide belief that offender is not liable to act in a manner prescribed by a statute’.
The case of the assessee further find support from the decision in the case of CIT vs AT & T Communications Services Pvt. Ltd. [2012 (2) TMI 8 - DELHI HIGH COURT] wherein it was held that invoking the provisions of section 40(a)(ia) for making the disallowance should not be a ground for levy of penalty. Identical ratio was laid down in New Horizon India Pvt. Ltd. vs DCIT [2010 (5) TMI 653 - ITAT DELHI] and in Ram Krishna S. Shetty [2014 (1) TMI 1072 - ITAT MUMBAI] and the decision from Hon'ble Apex Court in the case of Reliance Petro Products [2010 (3) TMI 80 - SUPREME COURT]. - Decided against revenue.
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2018 (6) TMI 1796
Valuation of taxable service - Commercial Training & Coaching Services - inclusion of value of the course material/book supplied separately by the appellant in the value of services - exemption under N/N. 12/2003-ST dated 20/06/2003 - HELD THAT:- The issue stands decided in their own case in M/S. FITTJEE LIMITED VERSUS CST, NEW DELHI [2017 (1) TMI 1602 - CESTAT, NEW DELHI], which further stands followed in their subsequent appeals, where it was held that there is no question of their availing any Cenvat credit on such books and study materials as there is no tax paid on any of them. We find the impugned order denying the benefit of Notification No.12/03-ST is not legally sustainable.
Appeal allowed - the matter is decided in favour of the assessee.
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2018 (6) TMI 1795
Denial of exemption u/s 11 - donation made to another trust - whether donations for charitable purposes made from sale proceeds of the capital asset is also application of income towards achievement of the objects of the Trust and render it eligible for exemption under Section 11 ? - HELD THAT:- We find that the issue before us, is squarely covered in favour of the assessee by the decision of a co-ordinate bench of this Tribunal in the case of Al Ameen Educational Society Vs. DIT (Exemptions) [2012 (11) TMI 346 - ITAT BANGALORE] wherein held that if the capital gains / sale proceeds of the capital asset is applied for charitable purposes in keeping with the objects of the assessee trust, not by acquiring a new asset but for other charitable purposes, then there is no reason why it should not be considered as application of income for charitable purpose, thereby enabling the assessee to be eligible for claiming exemption under Section 11 of the Act.
Following the aforesaid decision of Al Ameen Educational Society Vs. DIT (Exemptions) (supra), we uphold the decision of the learned CIT (Appeals), rendered at para 12 of the impugned order, that donations made form sale proceeds of the capital asset for charitable purpose in furtherance of the objects of the assessee trust, renders the assessee eligible for exemption under Section 11 of the Act. Consequently, the grounds raised by Revenue are dismissed.
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2018 (6) TMI 1794
Validity of assessment u/s 147 - search and seizure operation u/s 132 - documents seized in search action under section 132 of the Act on a third party - HELD THAT:- When the AO finally found that the material on the basis of which the proceedings for reassessment were initiated were not sufficient to assess the income and only made a protective assessment then such an exercise of the AO is not permissible to take a chance by resorting to the provisions of section 147/148 of the Act. In view of the above discussion, facts and circumstances of the case and the decision of Hon’ble Bombay High Court in the case of DHLF Venture Capital Fund [2013 (6) TMI 575 - BOMBAY HIGH COURT] we hold that the reopening of the assessment is not valid and consequently we quash the reopening and reassessment made by the AO.
Reopening of assessment u/s 147 OR assessment u/s 153C - Assessment order that after the initial assessment u/s 143(3) r.w.s. 153A the AO got the alleged incriminating material in the shape of diary and transactions recorded therein found and seized in the search and seizure operation in case of Rajendra Jain Group. Accordingly, the AO proceeded to reassess the income of the assessee u/s 147 of the Act. The entire decisions of the AO to reassess the income of the assessee is based on the seized material and statement of Shri Madan Mohan Gupta recorded u/s 132(4) of the Act for which the specific remedy is provided u/s 153C.
Assessment order that after the initial assessment u/s 143(3) r.w.s. 153A the AO got the alleged incriminating material in the shape of diary and transactions recorded therein found and seized in the search and seizure operation in case of Rajendra Jain Group. Accordingly, the AO proceeded to reassess the income of the assessee u/s 147 of the Act. The entire decisions of the AO to reassess the income of the assessee is based on the seized material and statement of Shri Madan Mohan Gupta recorded u/s 132(4) of the Act for which the specific remedy is provided u/s 153C.
Thus we hold that the reopening under section 147/148 of the Act is not valid when the proper course of action was only to initiate the proceedings under section 153C/153A - Decided against revenue.
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2018 (6) TMI 1793
TDS On payment of Leave Travel Concession - Demand u/s 201(1) and 201(1A) - Whether benefit of Leave Travel Concession is available to the Bank’s employee even in cases where the journey undertaken by an employee involves a foreign leg but the employee’s designated place is in India and he actually visits the place as designated? - HELD THAT:- As fairly conceded by assessee that the issue involved in these appeals is squarely covered against the assessee and in favour of the revenue by Tribunal order rendered in the case of some other branches of State Bank of India. DR of revenue supported the order of CIT(A). - Decided against assessee.
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2018 (6) TMI 1792
Levy of penalty u/s 271D - assessee failed to establish the compelling reason or genuine business constraint or reasonable cause for having connection in respect of each and every journal entry with its group concern - genuineness of the transaction made through journal entries - HELD THAT:- As the co-ordinate bench in assessee’s group case in DCIT v. National Standard India Ltd. [2018 (7) TMI 1828 - ITAT MUMBAI] while referring the decision of Hon’ble jurisdictional High Court in CIT v. Ajitnath Hi-Tech Builders Pvt. Ltd.[2018 (2) TMI 603 - BOMBAY HIGH COURT] held that the journal entries passed prior to 12.06.2012, the date on which Bombay High Court in case of CIT v. Trumph International Finance (I) Ltd. was pronounced. Therefore, prior to 12.06.2012 it can be safely concluded, wherein the assessee under the bonafide belief, passed journal entry, could not be subject to penalties under section 271D & 271E.
Considering the decision in case of CIT v Ajitnath Hi-Tech Builders Pvt. Ltd.(supra) and Tribunal’s orders in assessee’s group case in National Standard India [2018 (7) TMI 1828 - ITAT MUMBAI] and M/s Aashthavinayak Estate Company Ltd. [2018 (5) TMI 1745 - ITAT MUMBAI] we do not find any reason to interfere with the finding of ld. Commissioner (Appeals). Appeal filed by Revenue is dismissed.
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2018 (6) TMI 1791
Penalties u/s 271D and 271E - Accepting & repayment in cash loan/ deposit/ transactions made through journal entries in excess of ₹20,000/- - violation of the provisions of section 269SS & 269T - HELD THAT:- In view of the judgement of LODHA BUILDERS PVT LTD AND OTHERS VERSUS ASSTT COMMISSIONER OF INCOME TAX [2014 (8) TMI 872 - ITAT MUMBAI] and Triumph International Finance (I) Ltd [2012 (6) TMI 358 - BOMBAY HIGH COURT] wherein it is held that where loan / deposit has been repaid by day to day accounts of the parties through journal entries, it must be held that the assessee has committed default for the contravention of provisions of section 269SS or 269T as the case may be. But the Hon’ble Bombay High Court has clarified the position with effect from 12.06.2012 date when the judgement was pronounced and prior the date of decision of Hon’ble Bombay High Court in the case of Triumph International Finance (I) Ltd (supra) there was a reasonable cause for the assessee to receive deposit of loan or repayment of the same through journal entries. Accordingly, the assessee’s case is squarely falls under a reasonable cause under section 273B of the Act and therefore, in our view, penalties levied by the addl. CIT under section 271D and 271E of the Act has rightly been deleted by CIT(A). Hence, we confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
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2018 (6) TMI 1790
Maintainability of application - initiation of CIRP - Corporate Debtor failed to pay Annual listing fee - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- On perusal of the Form - 5 under Adjudicating Authority Rules filed by the Petitioner, this Bench has noticed that the Petitioner itself has mentioned in the petition that the default date as 1.4.2014, when this Bench has put it to the Petitioner Counsel as to whether this debt has been acknowledged or part payment has been made by this Corporate Debtor at any point of time after 1.4.2014, since this Counsel has stated that the Corporate Debtor has neither acknowledged nor made any part payment after 1.4.2014, this Bench is of the view that this Petition is hit by the Limitation Act, 1963 as envisaged under Section 238A of the I&B Code.
For the limitation period of three years reckoning from 1.4.2014 is over by the time this company Petition has been filed by the petitioner, i.e., on 8.12.2018 this Bench hereby holds that this Petition is hit by Section 238A of the Insolvency & Bankruptcy Code - Petition dismissed.
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2018 (6) TMI 1789
Nature of expenditure - payment of the net present value by an assessee engaged in mining for use of forest land for mining purpose - revenue or capital expenditure - AO reasoned that since it was a one-time payment for the assessee to continue its business operations or undertake mining operations in the relevant area for the first time, it had to be regarded as a capital expenditure and could not be deducted from the income as a revenue expenditure - HELD THAT:- Both the Commissioner (Appeals) and the Appellate Tribunal have referred to a judgment of Bikaner Gypsums Ltd. [1990 (10) TMI 2 - SUPREME COURT] as observed that since the assessee was entitled to carry on mining operations and such payment had been made for the removal of the difficulty in the assessee carrying on its business in accordance with its licence, the expenditure had to be regarded as a revenue expenditure and could not be treated as a capital expense.
This is not a case where the assessee, upon payment of the NPV, obtained a fresh right to undertake any business. That right of the assessee was covered by the licence previously granted in its favour by the State of Odisha. The NPV payment is a kind of a compensation for using forest land for non-forest purpose pursuant to an order of the Supreme Court. The payment of the NPV in this case, like in the case of Bikaner Gypsums Ltd. , has to be regarded as a revenue expenditure in accordance with the ratio in the Bikaner Gypsums Ltd. case, since it was a one-time payment made to remove an obstacle from the path of the assessee carrying on its business operations.
For the reasons aforesaid, the concurrent findings of the Commissioner (Appeals) and the Appellate Tribunal based on a long-standing judgment of the Supreme Court does not call for any interference. - Decided against revenue.
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2018 (6) TMI 1788
Dishonor of Cheque - insufficiency of funds - absence of any allegations in the complaint with details as to how the petitioner is authorized in day-to-day affairs of the company - vicarious liability u/s 141 of NI Act - HELD THAT:- Though the petitioner is one of the Directors of the company, merely because he has transferred a sum of ₹ 1,00,000/- from his account to the account of the complainant, it is difficult to hold that the petitioner is actively participating in day-to-day affairs of the business of company. Mere payment by the petitioner being one of the Directors is not sufficient to fasten liability under Section 141 of the Act - While dealing with the vicarious liability of the Directors of the company, the Apex Court in SUNIL BHARTI MITTAL VERSUS CENTRAL BUREAU OF INVESTIGATION [2015 (9) TMI 1339 - SUPREME COURT] is of the view that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation.
The averments made in paragraph No.5 of the complaint are not sufficient to fasten the liability against the petitioner and in the absence of such details, the complaint against the petitioner, who is arrayed as A2, for the offence under Section 138 of the Act and under Section 420 IPC is not maintainable and consequently, the proceedings against the petitioner are liable to be quashed - Petition allowed.
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2018 (6) TMI 1787
Deduction u/s.80P(2)(d) - nexus between the interest/dividend income earned from the co-op. societies and the interest expenditure incurred by the assessee on borrowed funds - HELD THAT:- We find that there is not direct specific or definite expenditure factually incurred to earn income of dividend and or intent from investments with other co-operative societies eligible for deduction u/s.80P(2)(d) of the Act, hence, the action of the AO in assuming expenditure alleged to have incurred or deemed to have incurred for earning dividend, without bring any evidence or record to prove the nexus between expenditure disallowed and dividend/interest income earned from investment with other co-operative societies in wholly arbitrary imaginary, hence, not sustainable in law
It is seen that the assessee has been statutorily investing its surplus fund from the year 1992 with other co-operative societies including co-operative banks. On such investment, the assessee is receiving interest and dividend which has been claimed as deduction u/s.80P(2)(d) of the Act. It is evident that there is no direct nexus between such expenses and interest and dividend. The prorate allocation of interest expenditure resulting its part disallowance of deduction has been done without examined the issue in details. Therefore, in absence of any expenses directly or indirectly co-related to such income, the part disallowance of deduction is not satisfied. In view of this matter, we do not find any fault in the order of CIT(A), hence, same is upheld.
Claim of deduction u/s. 80P(2)(d) of the Act on the interest income earned from Co-operative banks - HELD THAT:- It is undisputed fact that the assessee is a Credit Co-operative Society and received advances and loans from its members, on which interest was being received and paid. We find that the Surat Bench of the Tribunal (camp at Surat), on the similar issue, in assessee’s own case[2017 (4) TMI 1545 - ITAT SURAT]for the A.Y. 2009-10 held the issue in favour of the assessee by dismissing the appeal filed by the Revenue. We find that there is no direct nexus between expenditure related to part disallowance, hence, findings of CIT(A) are upheld. It is further apparent that the assessee is entitled to deduction u/s.80P(2)(d) in respect of the interest income earned from Co-operative Societies are eligible for deduction. Therefore, we do not find any infirmity in the order of ld.CIT(A) - Decided against revenue.
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2018 (6) TMI 1786
Contravention of provisions of Section 4 of Competition Act, 2002 - Informant has proposed the relevant market to be the market for 'organization of private professional league cricket in India' - HELD THAT:- Undoubtedly, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. This is so in the present case. Thus, in view of the facts of the present case, the Commission is convinced that BCCI prima facie enjoys a dominant position in the relevant market for organization of professional domestic cricket leagues/events in India.
As per the information, after the initial denial in April, 2009 by BCCI, the Informant approached ICC seeking revision of its decision regarding ICL. However, ICC gave evasive reply. It neither granted the approval sought for nor did it place any sanctions on BCCI in relation to its anti-competitive conduct. Thus, the Commission observes that though the exclusionary actions of BCCI started prior to May 2009, i.e. prior to the enforcement of Section 4 of the Act, such conduct seem to have continued thereafter - the Commission notes that the evidence on record shows that BCCI blacklisted the Informant from participating in the bids for allocation of broadcast rights for IPL. The Minutes of ICC Board Meeting held in January, 2013, which have been relied upon by the Informant, has a categorical noting that the President of BCCI viz. Shri N. Srinivasan had specifically raised a concern regarding award of broadcast rights to companies within Essel Group which had remained in litigation with BCCI, ICC and ECB.
The Commission is of the view that apart from restraining the organisation of a competitive league (i.e. ICL) by the Informant, the BCCI appears to have excluded the Informant in the downstream market by disallowing it to bid for the media rights for IPL. Such denial prima facie appears to be in contravention of the provisions of Section 4(2)(c) of the Act. As stated earlier, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. BCCI seems to have taken advantage of such a situation.
The Commission finds that a prima facie case of abuse of dominant position within the meaning of Section 4(2)(c) has been made out against the Opposite Party. This case needs to be sent for investigation to the Director General (the 'DG') under the provisions of Section 26(1) of the Act. The DG is directed to carry out a detailed investigation into the matter and submit a report to the Commission, within 60 days - Application disposed off.
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2018 (6) TMI 1785
Taxability of Capital gain - Profit on sale of vessels of the division tonnage - taxability as per provisions of section 50(1) & 50(2) or not? - Special provision for computation of capital gains in case of depreciable assets - HELD THAT:- As in one of the situation, the value of such transfer is more than the value of block of assets, the excess is chargeable to tax under the head ‘capital gains’. In the given case, the excess i.e. profit is reduced from the block of assets and Block continue to have assets value and both situations highlighted in section 50(1) & 50(2) are not attracted. Therefore, as per Income Tax Act, this transaction has not generated any capital gains.
Income has to be determined strictly as per the provisions of I.T. Act and not as per Companies Act/Book profit. Only in specific situation book profit is considered for only determining the taxable income u/s 115JB. In no other situation, the book profit is considered to bring an income which is not as per the provisions of I.T. Act. Just because a separate income is disclosed by the assessee, it does not mean that it should be brought to tax over looking the actual provisions of income tax. Therefore, the profit on sale of vessels of the division tonnage is not taxable as the provisions of section 50(1) & 50(2) are not attracted. Therefore, the addition made by the AO is deleted.
Deduction u/s 80IA - deduction denied with regard to Karaikal Port, for which the CIT(A) in AY 2010-11 rejected the claim of assessee due to non submission of certificate - HELD THAT:- Since the assessee has submitted a certificate from the port authority certifying that they have entered into an agreement with the assessee for O&M of the port in AY 2009-10 itself, we set aside the order of CIT(A) and direct the AO to allow deduction u/s 80IA to Karaikal port also.
Disallowance u/ 14A r.w.r. 8D - HELD THAT:- It is clear that we have to include those investments which has generated income and exclude those investments, which have not generated income. AO had taken the total investment instead of those investments, which have generated income. Accordingly, we direct the AO to calculate the disallowance of interest with prescribed formula.
The main reason is that as per section 14A, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income, which is exempt from tax. The relevance is the expenditure in relation to income. The quantification has to be undertaken in relation to the exempt income. The investment which has not generated exempt income should be excluded from the calculation of ratio to determine the disallowance.
Similarly, for the administrative expenses, 0.5% of average investments from which the exempt income is received should be considered instead of average of the total investments - considering the above discussion, we direct AO to recalculate the disallowance as per rule 8D(iii) as per the above guidance. Accordingly, ground raised by assessee is allowed for statistical purposes.
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2018 (6) TMI 1784
Seeking grant of Bail - position or power to bring pressure on the Investigating Officer or the witnesses or not - presumption of guilt - filing of the charge sheet would amount to change of circumstances or not - HELD THAT:- There is nothing in the entire charge sheet to indicate that the petitioner was in a position or power to bring pressure on the Investigating Officer or the witnesses. The records reveal that the petitioner was a Graduate and was assisting his father in running his Industry. No-doubt, there is enough material to show that the father of the petitioner is a local M.L.A. But merely on that ground, it cannot be assumed that the petitioner was in a influential position and that he was making use of the power and position of his father to misdirect the investigation or to screen himself from the legal punishment. There is no presumption that the son of a M.L.A. is in a position to wield power and influence on all and sundry. Just as, a son cannot be made liable for the sins of his father, the status and position of a father cannot act as a disability against a son to seek bail. Therefore, it was not proper on the part of the learned Sessions Judge to deny bail to the petitioner on the purported ground that the petitioner was in a position to use power and influence, in case, he was released on bail.
The records indicate that the charge under section 307 Indian Penal Code came to be inserted at a later stage after recording the statement of the injured witness. There is inordinate delay in recording the statement of CW-2. Though the medical records indicate that CW-2 was in a fit condition to give his statement on 26.02.2018, his statement came to be recorded only on 03.03.2018. The statement made by CW-2 imputing allegation that the petitioner forced him to fall to his feet and on account of his refusal to heed to the demand of the petitioner, he was slapped and assaulted by the accused does not find place in the complaint lodged by CW-1 at the earliest point of time. All these circumstances indicate that a deliberate attempt has been made to improve the case of the prosecution from stage to stage to bolster up the charges, solely with a view to deny bail to the petitioner.
None of the parties had any intention or motive to harm or injure CW-2. Neither the petitioner nor any of the accused were armed with deadly weapons. There are no allegations against the petitioner that he used any weapon to cause injuries on CW-2. Accused No. 7 is already enlarged on bail by orders of this Court in the Petition. Therefore, having regard to all these facts and circumstances, the petitioner requires to be admitted to bail subject to conditions.
The criminal petition is allowed.
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2018 (6) TMI 1783
TP Adjustment - substantial question of law or fact - Maintainability of appeal in High court - whether tribunal was right in holding that RPT filters should be 15% and not 25%, taken by the TPO? - HELD THAT:- This Court in a recent judgment in M/s. Softbrands India Pvt. Ltd [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellants, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable. No substantial question of law arises in the present case also
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9911796707
