Whether the petition of complaint on the face of it discloses commission of offence of theft or dishonest misappropriation of property or not?
HELD THAT:- Under Section 378 of the I.P.C., there must be intention to take any movable property out of possession of any person without that person's consent. That is the first requirement to attract the definition of theft. Secondly, such property must be moved in order to such taking. Even if the complaint petition is accepted as it is, it would reveal that the concerned petitioners have used the content of document Nos. 1 to 28, and the documents are admittedly lying where they ought to. The complainant is making out a case that the documents were removed for photocopying by the accused persons. No case has been made out in the petition of complaint that the information contained in the documents per se had any legally protectable feature fitting the characteristic of property. Theft has been complained of in relation to taking the property in the form of documents temporarily out of possession of the complainant.
The allegations in respect of one set of documents (i.e. serial Nos. 1 to 28 of the Schedule), the originals of which are still with their lawful custodians, do not constitute the offence of theft or dishonest misappropriation of property. But so far as the other set of documents is concerned, it cannot be held at this stage that no offence has been disclosed. From the petition of complaint, it is found that the complainant has specified the accused persons who have used these two sets. The movable properties, comprising of 54 documents which, it is alleged are subjects of the three substantive offences-theft, dishonest misappropriation of property and receiving stolen property are segregable.
So far allegations pertaining to the documents specified against serial Nos. 1 to 28, the petition of complaint does not disclose the ingredients of the three aforesaid offences. But as regards allegations concerning documents specified against serial Nos. 29 to 54 are concerned, the petitioners' case is not sustainable. The petition of complaint discloses the ingredients of the offences alleged to have been committed in respect of this set of documents.
Payment as“speed money” - Payment made to labourers at MPT - addition u/s 37(1) - assessee is a company engaged in the business of acting as clearing and forwarding agents mainly in the Mangalore Port Trust (MPT). - assessee has to pay the charges to MPT only towards wages payable to workers, who in turn pay the same to the workers. Apart from the payment made to Port authorities, the assessee also pays wages directly to workers - AO disallowed 20% of the expenditure - HELD THAT:- As decided in assessee's own case for A.Y. 2009-10 relying on KONKAN MARINE AGENCIES [2008 (7) TMI 362 - KARNATAKA HIGH COURT] considering the assessee's business and the prevailing practice in the trade, whereby payments had to be made by firms like the assessee in order to ensure that the work of handling goods was done within reasonable time and emergency operations of cargo handling were done beyond working hours, such payments were made either through labour or workers union. It could not be considered to be prohibited by law. The assessee could not be expected to take receipts from individual workers or make payment by way of cheques. The payment was made by the assessee for business purposes and the expenditure had been incurred in the ordinary course of business. Therefore, the deduction was allowable by way of business expenditure - Decided in favour of assessee.
Imposition of penalty - classification of sanitary items - HELD THAT:- The matter to be noted is that, this Court specifically directed the petitioner to appear on 28.02.2015 with all relevant documents. The petitioner also appeared and submitted all the documents. The natural justice in such circumstances could only be understood in terms of the direction of this Court, not beyond. It is no doubt that, the authorities are bound to verify the relevant materials produced by the petitioner.
The procedure adopted cannot be found fault with. If the petitioner has any grievance on the merit of the order, he is at liberty to challenge the same in appropriate proceedings - petition dismissed.
CENVAT Credit - Clearance of metallurgical coke to their sister unit without payment of duty - proportionate credit on inputs used in manufacture of metallurgical coke reversed by appellant - Rule 6(3) of Cenvat Credit Rules, 2004 - Held that:- It is evident that appellants have reversed the credit of ₹ 38,077/- attributable to the quantum of inputs used in the manufacture of metallurgical coke and also proportionate amount of input service of ₹ 4,09,487/- reversed vide S. No. 3403 and S. No. 5156 both dated 5.12.2011 in their cenvat account - Consequent to that amendment of cenvat credit rules with retrospective effect vide Finance Act, 2010, if the appellants reversed the proportionate credit, question of demanding equivalent to 10% of the value does not arise.
TDS u/s 195 - disallowance Export Commission u/s 40a(i) - PE in India - payment made to non-resident for the services rendered outside India - HELD THAT:- Merely because payments have been made from India, the same cannot be made liable to be taxed in India insofar as payment was made to non-resident for the services rendered outside India as was held in the case of Dr. Reddy’s Laboratory [1995 (12) TMI 93 - ITAT HYDERABAD-A] - Decided in favour of assessee.
Grant of licence and allotment of spectrum - National Telecom Policy-2012 - retrospectivity of the policy - Held that:- We assume for the sake of argument that the impugned decision of the Union of India is in fact contrary to the tenor of the policy statement dated 15.02.2012. Even then, in our view, the impugned action cannot be faulted because the policy statement insofar as it seeks to apply only for the allocation of spectrum in future would be contrary to the decision of this Court in 2G case and void to that extent.
An analysis of the scheme of Section 11 of the TRAI Act is necessary. Section 11(1)14 imposes two legal obligations on TRAI. Under Sub-section (a) TRAI is obliged to make recommendations with respect to eight matters enumerated therein either suo motu or on a request of the LICENSOR. Under Sub-section (b), TRAI is obliged to discharge various functions numbering nine specified thereunder - We do not propose to examine the submission of learned Solicitor General that the recommendation of TRAI dated 15.10.2014 relied upon by the LICENSEES are primary recommendations, are not final. Even assuming for the sake of arguments that the recommendations of TRAI are final, the Government of India is not bound by the same in view of the first proviso to Section 11(1) of TRAI Act. The obligation of the Government of India arising under the second proviso thereof to seek opinion of TRAI is only to ensure that there is a rational process of decision-making where the factors relevant are examined by an expert body before the Government takes a final decision on any one of the matters enumerated Under Section 11(1)(a).
The impugned decision of the Government, which in fact resulted in huge inflow of revenue in the auctions conducted during the pendency of this litigation, cannot be said to be a totally irrational or irrelevant consideration in the context of the spectrum management.
In the case in hand, the LICENSEES are not compelled to pay any specific tariffs fixed by the LICENSOR (Union of India), for availing the right to use the spectrum. If the price for securing allocation of spectrum is likely to go up because of the procedure of auctioning to have access to spectrum, it goes up because of the market forces. Because there are people who are willing to acquire such a right paying a higher price on the assessment that they would be able to carry on the business profitably even after paying higher amounts for acquisition of spectrum. The LICENSEES are corporate houses with enormous economic power, which enables them to secure adequate expert advice in the matter of financial planning. We cannot believe that they would make any investment without making a reasonable assessment of the possible return on such investment. There is no compulsion by the State in this regard.
This is clearly a matter of an economic policy entailing an intricate economic choice and the Court lacks necessary expertise to make such choice - Therefore, the submission of the LICENSEES is required to be rejected.
Income from attached assets to be assessed in the hands of the appellant - non granting deduction of liability towards interest expenditure claimed by the appellant - HELD THAT:- As M/S. GROWMORE LEASING & INV. LTD., M/S. GROWMORE RESEARCH & ASSETS MGT. LTD., VERSUS THE ACIT, CENTRAL CIRCLE-31, MUMBAI [2015 (3) TMI 1243 - ITAT MUMBAI] assessee pointed out that the CIT(A) has held that the issue of interest expenditure is pending before the Hon’ble Special Court. Say of the Counsel that the proceedings in which the said issue of interest was issued by the custodian have been already concluded which fact has already been recorded by the CIT(A) in the impugned order. We, therefore, direct the CIT(A) to consider this fact while deciding the issue afresh. CIT(A) may also direct for the taxing of income in the hands of the recipient (family members) in accordance with the method of accounting followed by them and as per the provisions of the law.
Levy of interest u/s. 234B and 234C - HELD THAT:- In Devine Holdings Pvt. Ltd. [2012 (4) TMI 100 - BOMBAY HIGH COURT] has held that provisions of section 234A, 234B and 234C were applicable to the notified person also. Therefore, upholding the order of the FAA to that extent, we hold that provisions of section 234 are applicable. As far as calculation part is concerned. we find merits in the submission made by the assessee. Therefore, we are restoring back the issue to the file of the AO for fresh adjudication who would decide the issue after considering the amount taxed deductible at source on the income assessed and after affording a reasonable opportunity of hearing to the assessee.
Addition on account of declaration made u/s. 132(4) - HELD THAT:- We direct the AO to determine the total income of the assessee either on the basis of estimation or on the basis of declaration made by the assessee. We delete the addition made by AO and confirmed by FAA - decided in favour of the assessee.
Addition on account of unexplained credit - HELD THAT:- AO had mentioned that the assessee had mentioned about explanation regarding ₹ 3.44 lacs on 30. 11. 2006. Once he had received the letter it was his duty to consider all annextures of the letters. The assessee,before the FAA specifically mentioned the relevant documents were not considered. In these circumstances we are of the opinion that,in the interest of justice,matter should be restored back to FAA for fresh adjudication.He is directed to afford a reasonable opportunity to the assessee and to consider all the documents to be furnished by the assessee with regard to the disputed amount of ₹ 3.44 lacs.
Levy of interest u/s. 234A, 234B and 234C - HELD THAT:- Levy of interest is consequential in nature ground decided against the assessee and direct the AO re-compute the interest liability after reducing tax liability at source and decide the issue as per provisions of law.
TDS u/s 194H - payment of commission on credit cards to various banks - Held that:- CIT (Appeals) examined the facts and by following the decision in the case of Ahmedabad Stamp Vendors Association vs UOI [2002 (6) TMI 32 - GUJARAT HIGH COURT] and Tata Tele Services Ltd. vs DCIT (TDS) 2013 (1) TMI 480 - ITAT BANGALORE], wherein, it was held that there is no requirement of making TDS on the commission retained by Card Companies, opined that the provisions of section 40(a)(ia) r.w.s 194H of the Act are not applicable, deleted the addition. We find no infirmity in the conclusion of the ld. Commissioner of Income Tax (Appeals) under the facts available on record - Decided in favour of assessee.
Inspection of copies of the Optical Mark Reader (OMR) answer sheets, question paper and answer keys - Right to Information Act, 2005 - Infringement of Copyright Act or not?.
Held that:- Under the RTI Act no information sought can be refused unless the same falls in one of the Clauses of Section 8(1) thereof - The respondent No. 1 University has pegged its case under Clause (j) of sub Section (1) of Section 8 which exempts from disclosure of information which relates to personal information and the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual.
In our opinion the issue whether the question papers/answer sheets/answer keys fall in the said exemption is no longer res integra in terms of the judgments in Shaunak H. Satya [2012 (6) TMI 661 - SUPREME COURT OF INDIA] holding that furnishing of information by an examining body, in response to a query under the RTI Act may not be termed as an infringement of copyright.
No other relief personal to the petitioner can be granted in the present case.
The respondent No. 1 University directed to review its policy/rules/regulations qua question papers, answer key and OMR answer sheets of the student concerned - Appeal allowed.
Unexplained cash credits as in-genuine gift received from brother - CIT-A deleted the addition - Held that:- The source of gift was maturity proceeds of tax free GOI relief bonds 1999 and 2001 respectively in which Mr. Zulfikar K. Momin had invested and against lien of which, M/s. Opal Stone Industries, the proprietorship concern of the assessee had taken revolving credit facilities of ₹ 4,00,00,000/- from ICICI Bank and loan of ₹ 80,00,000/- from Development Credit Bank.
Consequent to lien, these bonds were transferred in the name of ICICI Bank and Development Credit Bank. On maturity the proceeds of these bonds were directly credited in the loan account of the assessee with ICICI Bank and Development Credit Bank and adjusted against the outstanding loans. Mr. Zulfikar K. Momin gifted the above/equivalent amount to the assessee. The Ld. CIT(A), relying upon the various case laws, observed that the ₹ 3,18,41,394/- made u/s 68 of the Act by the AO was not sustainable. Before us, ld. D.R. could not successfully point out any infirmity in the well reasoned order of the Ld. CIT(A). - Decided against revenue.
Addition u/s 40(a)(ia) - TDS defaults - assessee not deposited the TDS before the due date as was prescribed u/s 40(a)(ia) - as per assessee he deposited the TDS before the due date of filing of return - Held that:- Since the challans representing the deposit of TDS were not produced before the lower authorities, hence, subject to the verification of the deposit of the TDS by the AO, we direct that the assessee's claim be allowed towards payment to the extent it exhibits payment of corresponding TDS by the due date of furnishing the return for the relevant year. So far the second part of the ground in relation to admission of additional evidence is concerned, since we have restored the matter to the file of the AO, this issue is disposed of accordingly with a direction that the assessee will be given proper opportunity by the AO to show/furnish evidence that the TDS was deposited before due date of filing and thereafter the AO to decide the issue in accordance with our above observations.
Addition on account of foreign travel expenses - allowable business expenses - Held that:- The details of the expenditure were duly furnished during the assessment proceedings as well as appellate proceedings before the CIT(A) such as the name of person visited, name of the country, period of visit, detailed break-up of expenses etc. The detail of the customers and the country-wise business generated was also filed. It was also explained that the gifts and entertainment expenses were incurred for maintaining harmonious and cordial business relationship and personal rapport. The Ld. CIT(A), considering the overall facts and circumstances of the case, observed that since the details of the some of the expenditure was not fully verifiable and some personal element could not be ruled out, he therefore made an adhoc disallowance of ₹ 1 lakh out of foreign travelling expenses. No infirmity in the well reasoned order of the Ld. CIT(A) on this issue
Rectification of mistake - Held that:- Mistake has crept in para 42 at page 20 of the Order in as much as ‘In the result, both the appeals of the assessee are partly allowed’, instead of appeal of the assessee is partly allowed and appeal of the Revenue is dismissed. The same shall read as ‘In the result, appeal of the assessee is partly allowed and appeal of the Revenue is dismissed, instead of ‘In the result, both the appeals of the assessee are partly allowed’.
Deduction u/s 80-IB(10) - condition for time limit within which the project had to be completed - assessee having completed the building after 31st March, 2008 - assessee was a builder and had undertaken project at Chinchwad - The land on which the assessee had constructed the project was initially purchased by a Co-operative Housing Society wherein some of the partners of the assessee firm and their family members were the members - pro-rata deduction - single unified project - whether the construction carried out by the assessee in Sector No.1 and Sector No.7 were independent housing projects, against which the assessee could separately claim the deduction under section 80-IB(10) of the Act, where the projects had fulfilled the conditions laid down in the said section?
Held that:- We hold that while deciding the claim of the assessee relating to assessment year 2006-07, the provisions of the Act as applicable for this assessment year are to be applied harmoniously and consequently the claim of the assessee is to be looked into in line with the amended provisions of section 80-IB(10) of the Act, which have been made applicable for the construction of the housing project, which had commenced development and construction after the 1st day of October, 1998 but before 1st day of October, 2004, then such housing projects in order to avail the aforesaid deduction, had to be completed on or before 31st day of March, 2008. We uphold the order of CIT(A) in this regard.
We hold that the provisions of section 80-IB(10)(a)(i) are clearly applicable to the facts of the case and the assessee had to complete its project on or before 31st March, 2008 in order to avail the deduction under section 80-IB(10) of the Act.
Each of the project developed by the assessee was independent project itself and consequently if the individual project satisfies the conditions of section 80-IB(10) of the Act, then the said project is entitled to the claim of deduction. The housing project in Sector No.1 comprising of five buildings was completed on 28.03.2008, against which the assessee had received part completion certificate and since the project has been completed prior to 31.08.2008 i.e. within stipulated period under section 80-IB(10)(a)(i) of the Act, the assessee is entitled to the claim of deduction under the said section in respect of the profits from the said housing project in Sector No.1. We uphold the order of the CIT(A) in this regard and dismiss the grounds of appeal raised by the Revenue on both the issues.
Coming to the second housing project in Sector No.7. Admittedly, the assessee in assessment year 2006-07 has completed only 2 buildings i.e. Q-1, Q-2 and some flats in assessment year 2007-08. The building comprised in P-1 to P-6 and the row houses have not been constructed by the assessee till the date of survey and upto 31.03.2008.
The Hon’ble Madras High Court in Viswas Promoters Pvt. Ltd. vs. ACIT, [2012 (11) TMI 1117 - MADRAS HIGH COURT]have laid down that within a composite housing project, where there are eligible and intelligible units, the assessee can claim deduction in respect of eligible units in the project and even within the block, the assessee is entitled to claim proportionate relief against the units satisfying the extent of built-up area.
We hold that the assessee is entitled to pro-rata deduction in respect of residential units in the housing project No.7, which have complied with the conditions and were eligible for the deduction under section 80-IB(10) of the Act. The said deduction is allowable to the assessee only in respect of units construction of which has been completed upto 31st March, 2008. Accordingly, we direct the Assessing Officer to verify the claim of the assessee in this regard in assessment years 2006-07 and 2007-08 and if the assessee has fulfilled the aforesaid conditions under section 80-IB(10) of the Act, pro-rata deduction under the said section could be allowed to the assessee in relation to the buildings / flats completed in Sector No.7. Consequently, the ground of appeal raised by the assessee is partly allowed.
Transfer of mining lease - the transfer of the mining lease was declared null and void and mining lease was cancelled - Held that:- Rule 15 provides for regulation of transfer of mining lease. A perusal of the Rule will clearly indicate that the transfer is not prohibited. It is only regulated by Rule 15 to the extent that the licensee is prohibited from transfer of mining lease except with the previous consent in writing of the competent authority. Clauses (a) & (b) of Sub-Rule (1) of Rule-15 provide for the transfers, which are not permissible except with the consent in writing of the competent authority.
The transfer by any means such as provided in Rule 15(1)(a) & (b) is permissible with the previous consent in writing of the competent authority. The transfer of interest under sub-rule (1)(a) and the transfer of control under sub-rule 1(b) is also permissible provided it is with the previous consent in writing of the competent authority.
It is of common knowledge that the corporate entities frequently undergoes changes in share-holding patterns. The Company Law permits it, and that the entire corporate world moves on such permissible transactions. The shares of the Company are bought and sold every day on the Stock Exchanges, which may result into change in the control of the management of the Company. The changes, however, do not affect the contracts under which the Company has to transact its business, including the acquisition of assets, licenses, permits, concessions and leases - In case the argument of learned Additional Advocate General is accepted, the change in the share-holding pattern would amount to cancellation of all such contracts, leading to a complete chaos in the corporate world.
Addition u/s 14A - Held that:- In our considered opinion, the investments made by the assessee are in Growth Oriented Funds where no dividend is declared. However, we find that whenever there is maturity of these funds, the amount is subject to tax under the head ‘Capital Gain’. Considering all we decline to interfere with the findings of the Ld. CIT(A). - Decided against revenue
TDS u/s 195 - payments to non-residents under the heads training fee,service fee and royalty payment - PE in India - scope of amendment of act - Held that:- TDS u/s 195 - payments to non-residents under the heads training fee,service fee and royalty payment - PE in India - Held that:-The payments in question are covered by the provisions of section 9, that the non residents had no PE in India, that the assessee was not liable to deduct tax at source for these payments. We are of the opinion that his order does not suffer from any legal infirmity. Here, we would also like to mention that the issue of taxability of these three payments had arisen because of the retrospective amendment to section.
The assessee had managed its affairs as per the provisions of existing law and at the time of filing of return, it had not to deduct the tax. The settled principle of jurisprudence stipulates that impossible acts cannot be expected to be performed by an assessee. If at the time of filing of its return the assessee is not required to deducted tax as per the existing provisions and later on because of the retrospective amendment or judgment of a court liability to deduct Tax at Source arises, the assessee cannot be held responsible for not deducting of tax at the time of filing of return. - Decided against revenue
TDS u/s 194J - transaction charges paid by the assessee to the stock exchange - fee for technical services - Held that:- As decided in assessee's own case for AY 2008-09 assessee proceeded on the footing that section 194J was not applicable to the payment of transaction charges and accordingly during the period from 1995 to 2005 neither the assessee has deducted tax at source nor the Revenue has raised any objection. The Hon'ble High Court further observed that in these circumstances if both the parties for nearly a decade proceeded on the footing that section 194J is not attracted, then in the assessment year in question, no fault can be found with the assessee in not deducting tax at source under section 194J of the Act and consequently, no action could be taken under section 40(a)(ia) of the Act.
Return of income for the year under consideration was filed on 14/08/2009 and this decision of the Hon'ble Court was pronounced on 21/10/2011. Thus, the assessee had already filed the return of income and the time period for deducting tax at source was also lapsed. Considering these peculiar facts. in our considered opinion no disallowance on this account should be made for the year under consideration. - decided in favour of assessee.
Disallowance of deduction u/s 36(1)(viia) - assessee is a co-operative society registered under Maharashtra Cooperative Societies Act and is engaged in the business of banking - provision for bad and doubtful debts made by any scheduled bank/co-operative bank - Held that:- The provisions of clause (vii) deal with ‘bad debts’, whereas, provisions of clause (viia) deals with ‘provision for bad and doubtful debts’. The distinction which the assessee has tried to create by dividing the provisions of clause (viia) into two parts is merely self-drawn. Both the parts of clause (viia) are joined with conjunction “and”. Therefore, both the limbs of clause (viia) have to be read together and not as alternate. The Hon’ble Supreme Court of India in the case of Catholic Syrian Bank Ltd. vs. CIT ( [2012 (2) TMI 262 - SUPREME COURT OF INDIA] has categorically held that the provisions of section 36(1)(vii) deals with general deduction available to a bank and even non-banking business. The provisions of section 36(1)(vii) operate in their own field and are not restricted by the limitation of section 36(1)(viia) of the Act.
Accrual of income - Interest on NPA - assessee bank has been consistently following the practice of crediting interest accrued on NPA accounts to Overdue Interest Reserve as per the guidelines issued by Reserve Bank of India - interest actually recovered on such accounts is credited to Profit & Loss Account and due tax is paid thereon - Held that:- The issue raised in the present appeal is identical to one already decided by the Co-ordinate Bench in the case of ACIT vs. Ratanchand Shah Sahakari Bank Ltd. (2014 (12) TMI 345 - ITAT PUNE) what to talk of interest, even the principle amount itself had become doubtful to recover - In this scenario it was legitimate move to infer that interest income thereupon has not “accrued”- thus, there was no infirmity with the decision of the CIT(A) in holding that the interest income relatable on NPA advances did not accrue to the assessee – Decided against revenue.
Disallowance of amortization of premium paid on Govt. - Securities held under HTM category - Held that:- We observe that this issue has already been decided in assessee’s own case in assessment year 2009-10. There has been no change in facts and circumstances of the case in impugned assessment year. DR has not been able to refute the findings of the Tribunal in immediately preceding assessment year. Thus, the addition towards disallowance of amortization of premium on Govt. Securities held under HTM category is deleted.
The Supreme Court of India in 2015 (5) TMI 1167 - SC granted leave after condoning delay. Anil R. Dave and R.K. Agrawal were the judges. Guru Krishna Kumar represented the petitioner, and N.K. Poddar represented the respondent.
Non registering the applicant Trust u/s 12 AA - Charitable activity u/s 2(15) - new formality of registration was not completed at relevant point of time - Held that:- We find that society was registered with the Registrar of society vide Registration No. 629 dt. 08/07/1996. This fact has been mentioned by the Commissioner in the first Para of his order.
In any case there is no requirement u/s 12AA that society should be registered. Simply because new formality of registration was not completed at relevant point of time cannot be a ground for not granting registration under section 12AA. It is settled position of law that at the time of registration the Commissioner is required to only examine the objects of the society which in the present case is to render education. Therefore in our opinion the registration is wrongly denied. Accordingly he set aside the order of Commissioner and grants registration to the society. - Decided in favour of assessee.
Income on sub -lease of land and maintenance income - assessment as busniss income - Held that:- As relying on assessee's own case CIT(A) was correct in holding that income on sub -lease of land and maintenance income under the head "business income" and allowing various business expenses claimed by the assessee in absence of any business activity.
Addition in respect of interest on borrowed capital utilized for construction of property - CIT-A deleted the addition - Held that:- CIT(A), by following his own order for the A.Y. 2008-09, on the similar issue, has deleted the addition made by the AO. The said decision of the Ld.CIT(A) has been confirmed by the Tribunal. The Tribunal, in the said order, has held that if interest has been paid by an assessee for acquiring or construction assets that are used for earning taxable income then his claim for interest expenditure has to be allowed. - Revenue appeal dismissed.
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