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Showing 81 to 100 of 1510 Records
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2015 (1) TMI 1440
Reopening of assessment u/s 147 - unexplained share purchases - HELD THAT:- Earlier also for the same assessment year AO framed the assessment u/s 143(3)/147 of the Act vide assessment order dated 16.12.2005. The said assessment was framed after proper verification and scrutiny and no new material was brought on record to justify the action for issuing the notice u/s 148 again on 27.03.2009.
AO issued the notice only on the basis of information received from the DIT(Investigation), however, he did not consider this vital fact that the amount mentioned by him in the reasons recorded for reopening, in fact was the closing debit balance in the account of M/s R. K. Investments and was pertaining to the preceding assessment year 2001-02 and not the year under consideration - It is not clear as to how and in what manner the debit balance in the name of M/s R. K. Investments was treated as the escaped income of the assessee particularly when the amount was paid for purchasing the shares so it was not an entry provided by M/s R. K. Investments if it had been so then the amount was to be shown as credit in the name of M/s R. K. Investments and not the debit.
Reasons recorded by the AO for reopening the assessment u/s 148 of the Act was not valid. We, therefore, considering the totality of the facts of the present case and by keeping in view the ratio laid down by the Hon’ble Jurisdictional High Court in the case of M/s Signature Hotels Pvt. Ltd. Vs ITO [2011 (7) TMI 361 - DELHI HIGH COURT] set aside the impugned order by holding that the reopening u/s 147 of the Act by issuing the notice u/s 148 was not valid - Decided in favour of assessee.
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2015 (1) TMI 1439
Contempt petition - wilful disobedience of the order passed - appellant submitted that admittedly, the appellant was not a party to the order passed, there is neither a wilful disobedience nor non compliance of the order passed - HELD THAT:- Admittedly, the appellant was not a party to the order passed. There is no difficulty in appreciating the principle of law that a contempt would lie even against the person, who is not a party to the order alleged to have been violated. However, in the case on hand, the appellant has not violated the order passed. In other words, the order passed was based on a misrepresentation, for which, the appellant cannot be held responsible. He merely made an attempt to remedy the mistake committed on registering the complaint said to have been given by the first respondent. In other words, the appellant made an attempt to comply with the order passed though he was not a party to it. Such an attempt cannot be termed as wilful or deliberate and contravention of the said order.
In such view of the order, it can also be termed either as a civil or criminal contempt. He has not interfered with the flow of justice. Though it can be said that the approach of the appellant is over zealous, it cannot be termed as an act in violation of the order passed. The appellant may be wrong in his conclusion for which, the remedy for the first respondent lies elsewhere. The submission made by the learned Senior Counsel appearing for the first respondent on the non compliance of the provisions of the Original Side Rules has got no bearing on the contempt petition. But, the appellant has complied with the order passed. In any case, the said issue cannot be a ground to haul the appellant for a contempt.
The first respondent has not proved a wilful and deliberate violation of the order passed on the part of the appellant. The learned single Judge has also not given any specific findings on the same. Though certain procedural irregularities were pointed out, we are not concerned with this in these proceedings - the order passed in contempt petition is hereby set aside.
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2015 (1) TMI 1438
Assessment of trust - Carry forward and set off of deficit of earlier years - Whether as per the accounting norms, capital expenditure is not to be debited to income and expenditure account and hence no occasion arises when a deficit can be computed while allowing claim of application of income by way of capital expenditure as deduction? - HELD THAT:- Although the issue stands covered by the decision of this court in Institution of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] the fact is that revenue is aggrieved by it, however, Revenue did not challenge it in the higher forum in view of low tax effect. Be that as it may, no fault can be found with the order of the tribunal giving rise to the substantial question of law.
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2015 (1) TMI 1437
Exemption u/s.11 - assessee claims that the activities carried on by it do not fall within the definition of the term ‘charitable purpose’ u/s. 2(15) - Registration u/s 12A - HELD THAT:- We find that the Tribunal in [2014 (5) TMI 733 - ITAT MUMBAI ] has set aside the order of the DIT (Exemption) and restored the registration to the assessee granted u/s. 12A of the Act. Since the registration has been restored by the Tribunal, we do not find any reason why exemption should not be allowed to the assessee. We, set aside the findings of the Ld. CIT(A) and direct the AO to allow the exemption to the assessee. Appeal filed by the assessee is allowed.
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2015 (1) TMI 1436
Disallowance u/s. 14A r.w. Rule 8D - HELD THAT:- The Hon’ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. Vs DCIT& Another [2010 (8) TMI 77 - BOMBAY HIGH COURT] has held that sub-section (2) of Sec. 14A does not enable the AO to apply the method prescribed by Rule 8D without determining in the first instance the correctness of the claim of the assessee in respect of expenditure incurred in relation to income which does not form part of the total income under the Act, that he can proceed to make a determination under the Rules. Taking a leaf out of these observations of the Hon’ble Jurisdictional High Court, we restore the issue to the file of the AO. The AO is directed to verify the correctness of the claim of the assessee and decide the issue afresh as per provisions of the law. Ground No. 1 is allowed for statistical purpose.
Denial of the deduction of suo-motu disallowance made by the assessee out of the total disallowance computed by the AO - HELD THAT:- As we restored the issue of computing the disallowance to the file of the AO, the AO is directed to decide this issue also afresh after computing the disallowance u/s. 14A r.w. Rule 8D. This ground is allowed for statistical purpose.
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2015 (1) TMI 1435
Appointing respondents 3, 4 and 5 be taken on the Board of Directors of the Company with immediate effect - grant of recognition to an association - main contention urged by the petitioners was that the 2nd respondent did not have any power under the Forward Contracts (Regulation) Act, 1952 to issue such an order - HELD THAT:- A reading of Section 6(1) of Forward Contracts (Regulation) Act shows that the grant of recognition to an association shall be subject to such conditions as may be prescribed or specified. In Ext.R3(b) notification dated 23/1/09 also, recognition granted to the petitioner Company has been made subject to the condition that "said exchange shall comply with such directions as may, from time to time be given by the Forward Markets Commission". Therefore, on the strength of the enabling provision contained in Section 6(1), while issuing Ext.R3(b) notification, the Central Government specified that the first petitioner shall comply with such directions as may be issued from time to time by the Commission.
Similarly, Section 14A(1) obliges the association to carry on business relating to forward contracts only under a certificate of registration and in accordance with the conditions specified therein. In Ext.R3(c) certificate of registration, various conditions have been specified and the first condition is that "the said association shall comply with such directions as may from time to time, be given by the Forward Markets Commission".
Therefore, both in Ext.R3(b) and in Ext.R3(c) and in Sections 6 and 14A of the Act, enabling provisions have been incorporated entitling the Forward Markets Commission to issue directions from time to time and the first petitioner Company is obliged to comply with such directions.
These statutory provisions and the scheme of the Act thus show that pervasive control has been conferred on the Central Government and the Forward Markets Commission and there is nothing in the Act which suggests that the Central Government or the Commission cannot direct induction of members to the Director Board of the 1st petitioner Company in the circumstances as pointed out in Ext.P15.
Thus, it was perfectly within the jurisdiction of the 1st respondent to have issued Ext.P15 - interim prayer sought for by the petitioners declined.
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2015 (1) TMI 1434
Power and duties Judicial Magistrate - Dishonor of cheque - learned Magistrate has refused to entertain the complaint and has ordered to return the same to the petitioner on the ground that in view of the Judgment of the Hon'ble Supreme Court of India in the matter of DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT], the learned Magistrate could not have heard the said complaint - HELD THAT:- The issue decided in the case of GEETA MARINE SERVICES PVT. LTD. VERSUS STATE AND ORS [2008 (9) TMI 1011 - HIGH COURT OF BOMBAY] where it was held that now the Apex Court is seized of matters involving the said issues and therefore if any modification is made by the Apex Court in the view taken by this Court naturally the learned Magistrates will have to abide by the law laid down by the Apex Court.
Thus, it is abundantly clear that the Magistrate has to follow the judgment of this Court unless and until it is set aside by the Apex Court.
Petition disposed off.
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2015 (1) TMI 1433
Cessation of the liability - shown in parts by the assessee and not bringing the whole amount in to the net of taxation under section 41(1) - HELD THAT:- A perusal of the assessment order clearly shows that the assessee has shown the liability of ₹ 27,10,883/- as a liability in its accounts. The amount of ₹ 33,37,011/- clearly is the balance as on 01.04.2006. This is not an amount received by the assessee during the relevant assessment year. A perusal of the modification to the agreement dated 02.04.2001 vide letter dated 18.12.2006 clearly shows that M/s. Rudgormach, Russia has categorically directed the assessee to adjust the necessary expenses required for the marketing, promotional and liasioning work including commission on behalf of M/s. Rudgormach against the outstanding lying with the account. This clearly shows that there is no cessation of liability.
In the present case, the amount has any way not been written off. It remains as a liability in the books of the assessee. In these circumstances, we are of the view that the finding of the ld. CIT(Appeals) is on right footing and does not call for any interference. - Decided against revenue
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2015 (1) TMI 1432
Grant of Arbitral award - termination of contract by the State - HELD THAT:- The award was challenged under Section 34 of the Arbitration and Conciliation Act, 1996 before the Commercial Court, Ranchi. The Presiding Officer of the Commercial Court found no reason to interfere with the award.
The reviewing Court exercising its jurisdiction under Section 34 of the 1996 Act cannot undertake the exercise of re-appreciation of evidence except on very limited ground specified in the case of OIL & Natural Gas Corporation Ltd. versus Saw Pipes Ltd, [2003 (4) TMI 438 - SUPREME COURT] and further elaborated by a subsequent authority, Associate Builders Versus Delhi Development Authority [2014 (11) TMI 1114 - SUPREME COURT].
We do not find involvement of any grave violation of public policy by the Arbitral Tribunal in passing the award. The facts narrated in the award do not project any gross misuse of jurisdiction which could shock the conscience of the Court. What the appellant really wants from this Court exercising jurisdiction under Section 37 of the 1996 Act is to enter into re-appreciation of evidence. We also find that reasons were given by the Arbitral Tribunal for rejecting the counterclaim by the learned Arbitrator.
Appeal disposed off.
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2015 (1) TMI 1431
Notice u/s 143(2) not to the correct address - whether the Assessing Officer rightly assumed jurisdiction when he issued statutory noticed to the address as given in the PAN records (BKC Address) and not the address as per the return of income i.e., Prabhadevi address - HELD THAT:- During assessment proceedings, the appellant vide letter dated 28.11.2008 brought to the notice of the Assessing Officer that the notice u/s 143(2) dated 5.10.2007 was not served o the appellant and therefore, the proceedings u/s 143(2) were bad in law. In view of the appellant’s raising such objections during assessment proceedings, the provisions of section 292BB were not applicable and section 292BB could not have given validity to the illegality / irregularity of the notices.
In view of discussion made above, it is held that the Assessing Officer completed assessment u/s 143(3) of the Act without assuming valid jurisdiction u/s 143(2) of the Act. Appeal of the Revenue is dismissed.
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2015 (1) TMI 1430
TP Adjustment - adjustment in respect of the international transaction pertaining to the transaction of business support services - TPO did not accept TNMM method and applied internal CUP being the price/commission received by GESA from HLAG under 1993 agreement - HELD THAT:- Purchase price of the goods exported cannot be applied as CUP for sale price charged to the AE. Accordingly considering the price received by GESA as CUP is contrary to the transfer pricing regulation. We do not rule out the CUP as most appropriate method for determination of ALP of international transaction in question. However, the comparable uncontrolled price must be a proper uncontrolled price in compliance of provisions of transfer pricing.
There is one more fallacy in the TPO’s order regarding bifurcating the international transactions into two segments for determining the ALP. TPO accepted the price charged by the assessee in respect of services provided through subagency, but while computing the ALP it had ignored the CUP and took the price charged by the assessee as ALP. Further, the services provided by the assessee on its own were compared with CUP. Therefore, two separate ALP were determined by the TPO for the same service provided by the assessee to AE. Even if the CUP is adopted as most appropriate method ALP cannot be more than price received by GESA. Whereas the TPO has taken into consideration the price charged by the assessee with 10% mark-up. Hence, the computation of ALP is otherwise not based on correct uncontrolled price.
We may clarify that the international transaction in question should be considered as one and price received by the assessee in total has to be compared with the ALP. The assessee received the price for providing the service as per the agency agreement. Therefore, the service provided by the assessee to the AE are closely interlinked and price of one part is dependent on the price of the other part. Therefore, the entire services provided by the assessee has to be treated as one international transaction for the purpose of determining the ALP.
Depreciation on computer hardware - assessee claimed depreciation @ 60% on computer including printer, scanner and electronic token display system all part of block of asset of computer - AO held that the peripherals item do not fall under the definition of computer and allowed depreciation only @ 15% - HELD THAT:- Allowability of depreciation @ 60% on the computer accessories and peripherals is no more res-integra. In the case of BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] we allow the claim of depreciation on printer, scanner, electronic token display system @ 60%.
Depreciation on software - HELD THAT:- We allow the claim of 60% of depreciation on software.
Proportionate disallowance of depreciation on computer and software, based on the number of employees of the assessee - HELD THAT:- It is clear from the directions of the DRP that the proportionate disallowance of depreciation was directed only in respect of software cost allocated by AE and not on any other asset. Therefore, the AO has not followed the directions correctly while passing the impugned order whereby he disallowed the proportionate depreciation on the entire computer block of asset.
Proportionate disallowance based on the number of employees is concerned, we are of the view that the personal computers in any establishment/organization are not restricted to the number of employees at any given point of time. The strength of the employees may vary depending upon the capacity at which the company is working. Further, keeping extra computer for meeting any emergent situation of non-functional computer or under repair computer is not an unusual practice. Therefore, when the number of computer is not disputed then software installed on the existing computer cannot be treated as excess or not for business use of the assessee. Hence, we do not find any logic or substance in the directions of the DRP in restricting the depreciation of software licence to the extent of number of employees working with the assessee. Accordingly, the orders of the authorities below qua this issue are set aside and claim of the assessee is allowed in full.
Interest u/s 234D - AR has submitted that there is a calculation mistake in computing interest under section 234D - HELD THAT:- We direct the AO to verify the alleged working mistake in computation of interest under section 234D.
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2015 (1) TMI 1429
Addition u/s. 41(1) - cessation of liability on account of sundry creditors and advance from customers - HELD THAT:- In the present case, it is an admitted fact that assessee was showing the impugned liabilities year after year in its balance sheets which were accepted by the Department and there was no new liability during the year under consideration. The assessee was also making the payments whenever funds were available with it but due to want of funds amount could not be repaid after 31st March 2005.
In the instant case, the assessee reflected the liabilities in its books of account when those were incurred, those liabilities were accepted as genuine by the Department in the earlier years, assessee did not write off liabilities to its profit and loss account and there was no cessation of liability.
Therefore the provisions of Sec. 41(1) were not applicable because the liabilities ceases only when the assessee equivocally expresses its intention not to honour of the liability as and when demanded. In the present case, nothing was brought on record to substantiate that the assessee expressed its intention not to honour the liability when the creditors demanded the same, rather the assessee had continued to acknowledge its liability which who evident from its audited balance sheets furnished along with returns of income for the earlier years which were accepted as genuine by the Department. No valid ground to interfere with the findings of Ld. CIT(A). Accordingly, we do not see any merit in the appeal of Department.
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2015 (1) TMI 1428
Sporting frauds - Match fixing and betting - Regulation 6.2.4 of the IPL Regulations - Exclusion from its operation events like IPL and Champions' League twenty-20.
HELD THAT:- Amendment to Rule 6.2.4 whereby the words ‘excluding events like IPL or Champions League Twenty 20’, were added to the said rule is hereby declared void and ineffective.
The Committee shall, before taking a final view on the quantum of punishment to be awarded, issue notice to all those likely to be affected and provide to them a hearing in the matter. The order passed by the Committee shall be final and binding upon BCCI and the parties concerned subject to the right of the aggrieved party seeking redress in appropriate judicial proceedings in accordance with law - The three-member Committee constituted in terms of Para (II) above, shall also examine the role of Mr. Sundar Raman with or without further investigation, into his activities, and if found guilty, impose a suitable punishment upon him on behalf of BCCI.
The constitution of the Committee or its deliberations shall not affect the ensuing elections which the BCCI shall hold within six weeks from the date of this order in accordance with the prevalent rules and regulations subject to the condition that no one who has any commercial interest in the BCCI events (including Mr. N. Srinivasan) shall be eligible for contesting the elections for any post whatsoever - The Committee shall be free to fix their fees which shall be paid by the BCCI who shall, in addition, bear all incidental expenses such as travel, hotel, transport and secretarial services, necessary for the Committee to conclude its proceedings. The fees will be paid by the BCCI to the members at such intervals and in such manner as the Committee may decide. The venue of the proceedings shall be at the discretion of the Committee.
These appeals shall stand disposed of in the above terms with the direction that the relevant record received from Justice Mudgal Committee shall be forwarded to the Chairman of the newly appointed Committee without any delay.
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2015 (1) TMI 1427
Rectification u/s 254 (2) - no satisfaction was recorded in respect of quantum and penalty which resulted in an error apparent on record warranting rectification - HELD THAT:- The evidence of satisfaction being recorded is communication dated 21st August, 2000 addressed by the AO of the person searched to the AO of the petitioner. The petitioner also does not dispute communication dated 21st August, 2000 which is being relied upon by the revenue was a part of the record but submit that the same was considered by the Tribunal before passing the order dated 29th December, 2010. No fault in the impugned order concluding that there was an error apparent on record in the order dated 29th December, 2010 as it does not deal with/or consider the communication dated 21st August, 2000 and deal with the revenue's contention that satisfaction in terms of section 158BD of the Act was recorded.
A similar situation arose before the Supreme Court in HONDA SIEL POWER PRODUCTS LTD [2007 (11) TMI 8 - SUPREME COURT] and SAURASHTRA KUTCH STOCK EXCHANGE LTD [2008 (9) TMI 11 - SUPREME COURT] Tribunal had in exercise of its powers under section 254 (2) of the Act had recalled its earlier order as it had by mistake not considered a binding decision of the jurisdictional High Court. This recall by the Tribunal was upheld by the Apex Court on the fundamental principle of law that no prejudice should be caused to either of the parties appearing before the Tribunal by its decision based on a mistake apparent from the record. The Apex Court negatived the contention that such recall of an order would amount to review of its earlier orders. The Supreme Court held that mistake is a valid reason to recall an order. In the circumstances,the objections of the petitioner that the impugned order recalling the order dated 29th December 2010 is without jurisdiction is not sustainable.
We find that the impugned order after correctly holding that there is an error apparent from the record recalling its earlier order dated 10th December 2010 proceeded further to make observations on the scope of the satisfaction dated 21st August 2000. In fact the concluding paragraph of the impugned order seeks to suggest that the issue of jurisdiction is decided and it is only on merits that the appeal is being placed before the regular bench of the Tribunal. This is impermissible as it would foreclose an issue which is to be heard and decided by the bench rehearing the appeal. Thus the impugned order is unsustainable to the extent it decides and/or makes observations on the satisfaction note dated 21st August 2000 is the context of jurisdiction.
Tribunal would certainly be entitled to recall an order u/s 254 (2) of the Act as it suffers from mistakes apparent from record, while recalling the order and placing it before a regular bench to adjudicate/decide the merits of the appeal it was not entitled/justified to observe on the merits of adjudication. Once an order is recalled and the appeal is to be placed before a regular bench for fresh consideration in a manner of speaking it restores status quo ante. At the hearing of the appeal all the issues are bound to be urged by the petitioner and considered by the Tribunal hearing the appeal. In this case, the impugned order while recalling the order dated 29th December, 2010 places the appeal before a regular bench to be decided on merits yet concludes that jurisdictional requirement to proceed against the petitioner is satisfied. The aforesaid decision and observations on the jurisdictional issue in the impugned order is unsustainable.
While we uphold the impugned order to the extent it holds that there is an error apparent on the record in the order dated 29th December, 2010 in not having considered the letter dated 21st August, 2000, we do not uphold the other observations made by the Tribunal in the impugned order with regard to the exact nature, scope, effect and consequences of the communication dated 21st August, 2000. The regular Bench of the Tribunal to whom the revenue's appeals both on quantum and penalty are restored for hearing would not be influenced in any manner by the observations made in the impugned order on the merits of the controversy.
When the original order dated 29th December, 2010 was passed the petitioner was allowed to make submissions under rule 27 of the Income Tax Rules in the absence of having filed a separate appeal. The benefit of the above direction of the Tribunal would be extended to the petitioner at the hearing of the appeal by the regular Bench of the Tribunal hearing the revenue's appeal consequent to the recall of the earlier order dated 10th December, 2010. This is particularly so as the revenue had consented when the appeals were originally heard to the petitioner making its submissions under Rule 27 of the Income Tax Rules in the absence of having filed a substantial appeal.
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2015 (1) TMI 1426
Reopening of assessment u/s 147 - unexplained share purchases - addition based on sworn statement of Mukesh Choksi [accommodation entry provider] - as alleged by assessee for non providing any fair and reasonable opportunity of being heard to the petitioner - denial of an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount - HELD THAT:- Without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order. The entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner.
There was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India. See MR. ASHOK MITTAL VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX AND ANOTHER [2014 (4) TMI 208 - DELHI HIGH COURT] - Decided in favour of assessee.
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2015 (1) TMI 1425
Maintainability of appeal - By the first order the stay application was dismissed for want of non-prosecution and, by the second order, the appeal was dismissed for not complying with the order of the Tribunal dated 30th August, 2013 - HELD THAT:- Admittedly, the order dated 30th August, 2013 was an ex parte order. Since certain directions were indicated in that order, which was not known to the petitioner, therefore, the question of its compliance on or before the next date of hearing could not arise.
The Tribunal was harsh in dismissing the appeal on a technicality - matter remanded to the Tribunal for deciding the appeal on merit after hearing the parties - appeal allowed by way of remand.
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2015 (1) TMI 1424
Bribe - demand of illegal gratification - Burden to prove - Offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - whether the concurrent findings on the charge under Section 13(1)(d) of the Act, recorded by the High Court against the appellant is legal and valid and whether the judgment and order of conviction and sentence under Section 13(2) of the Act, imposed upon the appellant by the High Court, warrants interference by this Court?
HELD THAT:- It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus, the burden to prove the accusation against the appellant for the offence punishable under Section 13(1)(d) of the Act with regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution - In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the appellant under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise.
The High Court on re-appreciation of evidence on record has held that the demand alleged to have been made by the appellant from the complainant PW2, was not proved and that part of the conviction and sentence was rightly set aside in the impugned judgment. However, the High Court has erroneously affirmed the conviction for the alleged offence under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act.
On a careful perusal of the entire evidence on record along with the statement of the prosecution witnesses, we have to hold that the prosecution has failed to satisfy us beyond all reasonable doubt that the charge levelled against the appellant is proved.
Since, the charge against the appellant is not proved, the conviction and sentence imposed upon the accused-appellant by the High Court under Section 13(1)(d) read with Section 13(2) of the Act is set aside - The jail authorities are directed to release the appellant forthwith, if he is not required to be detained in any other case - Appeal allowed.
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2015 (1) TMI 1423
Registration u/s 12A - charitable activity u/s 2(15) - CIT (Appeals) denied the registration because no activities have yet started - HELD THAT:- The aims and objects of the assessee trust clearly show that the assessee trust came into existence for providing medical assistance to the poor patients and to promote research work on medical side and to hold conference, etc., to create awareness and educating the doctors especially Pediatricians about the respiratory disorders/ disease of children which are on a rise these days. The aims and objects of the assessee and explanation given before the learned Commissioner of Income Tax clearly support the contention of learned counsel for assessee that the assessee trust is created for charitable purpose only.
Copy of registration granted under section 12AA in respect of Society of AROI-2001, Department of Radiotherapy, PGI, Chandigarh-PB-59 and order of Commissioner of Income Tax, Chandigarh granting registration under section 12AA of charitable Hematology Education & Research Trust of Chandigarh-PB-68. When the learned Commissioner of Income Tax had granted registration under section 12AA to these societies, the learned Commissioner of Income Tax should not distinguish the case of the assessee from the similarly situated assesses. Thus assessee trust existed for charitable purpose only and had done some activities in achieving its aims and objects also. Therefore, the assessee trust is eligible for registration under section 12AA
CIT(E) has not disputed in the impugned order as to the nature of the aims and objects of the society which are covered under the definition of charitable purposes as defined u/s 2(15) of the Income Tax Act. Further as discussed above, it cannot be said that the appellant society is not doing the activities in pursuance of its main objects or that the aims and objects of the society are not genuine. no justification on the part of the Ld. CIT (E) for rejecting the application of the appellant – society for registration u/s 12A - Decided in favour of assessee.
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2015 (1) TMI 1422
TDS u/s 194C or 194J - payment made to cable operators/DTH operators for channel placement - assessee is engaged in the business of distribution of television channels - CIT(A) held that the payment for placement of channel falls u/s 194C for the purpose of deduction of tax and not u/s 194J - HELD THAT:- The issue is covered in favour of the assessee by the decisions of this Tribunal in the case of ACIT Vs. UTV Entertainment Television Ltd. [2014 (12) TMI 716 - ITAT MUMBAI] and ACIT Vs. M/s. NGC Networks (I) Pvt. Ltd. [2014 (11) TMI 484 - ITAT MUMBAI] wherein the Tribunal has held that the fee for placement of channel does not fall u/s 194J but the same falls u/s 194C. Hence the CIT(A) has rightly held that the TDS in respect of the payment has to be deducted u/s 194C.
TDS u/s 194J or 194C in respect of dubbing charges - HELD THAT:- Identical issue was considered and decided by this Tribunal in the case of ACIT Vs. Manish Dutt [2012 (7) TMI 186 - ITAT MUMBAI] wherein it was held that the payment made for dubbing work falls under section 194C and not u/s 194I. The Tribunal again in case of UTV Entertainment Television Limited [2014 (12) TMI 716 - ITAT MUMBAI] had decided a similar issue as held that assessee had thus carried out the work of dubbing by engaging services and the same was of the nature of getting work done through a sub-contractor. The findings of the CIT(A) in this regard are not in challenge before us. In such circumstances we are of the view that the provisions of section 194C were applicable
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2015 (1) TMI 1421
Reopening of assessment u/s 147 - Benefit u/s 54F - Tribunal held that only the expenses incurred to make the residential house habitable is entitled to benefit u/s 54F but not any additions made to the newly acquired building - HELD THAT:- Assessing authority, before issuing notice u/s 148 was satisfied that the assessee, while computing indexed cost of acquisition has taken the value as on 01.04.1981 as ₹ 280/- per sq.ft., but as per the Government notification, the value is at ₹ 45 per sq. ft. Therefore, he came to the conclusion that the assessee has taken higher value while working out indexation and therefore, he recorded an opinion that the income chargeable to tax has escaped assessment under Section 147 of the Act.
Merely because, he addressed a letter to the Sub-Registrar asking him to furnish the particulars would not lead to the conclusion that on the day he issued notice, he had no material to show that the assessee has over valued the asset. Rightly, the authorities have rejected the said contention and the proceedings initiated is valid and legal and do not suffer from any. legal infirmity. Therefore, the first substantial question of law is answered in favour of the revenue and against the assessee.
Benefit u/s 54F - it is not in dispute that the property purchased by the assessee was habitable but had lacked certain amenities. The assessee has spent nearly about ₹ 18 lakhs towards removal of mosaic flooring and laying of marble flooring, alteration of the kitchen, putting up compound wall, protecting the property with grill work and attending to other repairs.
Section 54F of the Act provides that if the cost of the new asset, which is to be taken into consideration while determining the capital gain, the words used is "cost of new asset" and not "the consideration for acquisition of the new asset". In law, it is permissible for an assessee to acquire a vacant site and put up a construction thereon and the cost of the new asset would be cost of land plus (+) cost of construction.
On the same analogy, even though he purchased a new asset, which is habitable but which requires additions, alterations, modifications and improvements and if money is spent on those aspects, it becomes the cost of the new asset and therefore, he would be entitled to the benefit of deduction in determining the capital gains. The approach of the authorities that once a habitable asset is acquired, any additions or improvements made on that habitable asset is not eligible for deduction, is contrary to the statutory provisions. The said reasoning is unsustainable.The impugned order passed by the Tribunal as well as the Lower authorities require to be set-aside and it is to be held that in arriving at cost of the new asset, ₹ 18 lakhs spent by the assessee for modification, alterations and improvements of the asset acquired is to be taken note of. Thus, the second substantial question of law is answered in favour of the assessee
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