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Showing 1 to 20 of 1510 Records
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2015 (1) TMI 1520
Application for provisional release of goods - HELD THAT:- The Deputy Commissioner, Customs is authorized to deal with such like applications. An order on the application for provisional release will be passed within ten days of the petitioner appearing before the concerned authority.
Petition disposed off.
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2015 (1) TMI 1519
TDS u/s 194C - freight charges paid to truck owners/drivers - HELD THAT:- The relationship between FCI and the assessee was that of contractee and contractor where FCI is contractee and the assessee was contractor, that any payment to the assessee by FCI as contractee was liable for TDS u/s 194C(1) of the Act, that the payment of freight charges made by the assessee to the trucks owners/driver directly and for the specific journeys carried out against specific weights of goods carried.
Clearly the disputed freight charges were not paid by the assessee to any middle man or sub contractor who in turn engaged the trucks for carrying the goods.
We hold that the relationship between and the truck drivers was not in the nature of contractor and sub-contractor, and the transaction between them did not come came under the purview of sub-section (2) of Section 194C.
As under sub-section (1) of section 194C an individual is not liable for any TDS in respect of any payments made to contractors. Therefore, the assessee, being an individual was not liable for making TDS in respect of any payment made to the truck drivers under the head freight paid.
Thus, provisions of section 40(a)(ia)of the Act are not applicable in respect of the freight payments made by the assessee and the FAA had rightly deleted the addition made by the AO - Decided against the AO.
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2015 (1) TMI 1518
Maintainability of petition being filed even before the completion of the investigation - posting of comments on a public forum like the Facebook page of the Bengaluru Traffic Police constitutes an offense under Sections 353 and 506 of the Indian Penal Code (IPC) - HELD THAT:- The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage.
So far as the issue regarding the registration of FIR Under Section 353 Indian Penal Code is concerned, it has to be seen whether by posting a comment on the Facebook of the traffic police, the conviction under that Section could be maintainable.
The essential ingredients of the offence Under Section 353 Indian Penal Code are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the Appellants to commit such an offence. There is absolutely nothing on record to show that the Appellants either assaulted the Respondents or used criminal force to prevent the second Respondent from discharging his official duty. Taking the uncontroverted allegations, that the ingredients of the offence Under Section 353 Indian Penal Code are not made out.
In the instant case, the allegation is that the Appellants have abused the complainant and obstructed the second Respondent from discharging his public duties and spoiled the integrity of the second Respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work - From the facts and circumstances of the case, it appears that there was no intention on the part of the Appellants to cause alarm in the minds of the second Respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of Appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 Indian Penal Code.
The Appellants might have posted the comment online under the bona fide belief that it was within the permissible limits. Even going by the uncontroverted allegations in the FIR, none of the ingredients of the alleged offences are satisfied. In the facts and circumstances of the case, it would be unjust to allow the process of the court to be continued against the Appellants and consequently the order of the High Court is liable to be set aside.
Conclusion - i) The essential ingredients of offenses under Sections 353 and 506 IPC were not satisfied by the appellants' actions. ii) In exercising its jurisdiction under Section 482 CrPC, the Court quashed the FIR and proceedings, as they did not disclose any cognizable offense and amounted to an abuse of process.
The impugned order of the High Court in Criminal Petition is set aside and this appeal is allowed and the FIR registered against the Appellants is quashed.
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2015 (1) TMI 1517
Money Laundering - seeking grant of regular bail - illegal extortion on Coal Transportation - Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail? - HELD THAT:- It is quite vivid that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail.
The applicant would submit that since the applicant remained in jail for more than two years and maximum sentence which can be awarded is seven years, therefore, he should be released on bail. This submission also deserves to be rejected looking to gravity and seriousness of the offence and the role played by the applicant as there is chance of influencing or tampering with the witness and evidence. As such, he is not entitled to be released on bail on the count that he remained in custody for more than two years which is long incarceration.
Conclusion - The applicant did not fulfill the twin conditions for bail under Section 45 of the PMLA. The arguments regarding delay in trial, medical conditions, and parity with co-accused were insufficient to warrant bail.
Bail application rejected.
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2015 (1) TMI 1516
Jurisdiction of Arbitral Tribunal to entertain the disputes - Unauthorized transactions and allegations of fraud - lifting of Corporate Veil - HELD THAT:- The AAT was of the view that the respondents had clearly established that they had made payment to the petitioner for the purpose of trading after they opened trading account with the petitioner. The transfer of securities to the petitioner and other director and employee of the petitioner was also pursuant to the opening of the trading account and was in pursuance of the respondents’ intention to trade with the petitioner. The AAT also holds that the petitioner has not denied the contention of the respondents that they gave instructions to the petitioner not to carry forward or roll over the trades and asked the petitioner to return the money which was admittedly not returned.
The AAT justified the lifting of corporate veil to ascertain the real state of affairs, particularly when the Tribunal found that there are serious allegations of fraud and serious misdemeanor against the petitioner. It relied upon the judgment of the Supreme Court in the case of Madan Mohan Rajgariha vs. Mahender R. Shah & Brothers [2003 (7) TMI 589 - SUPREME COURT] that even in the absence of a member constituent agreement, the claims of a stock broker against the client/constituent would be arbitrable in accordance with the bye-laws of the stock exchange. The AAT was of the view that since the transactions have taken place between the petitioner and the respondents, which can fully be attributable to the transactions between a trading member and a constituent and hence the bye-laws of NSE are applicable.
The contention primarily being no contracts or transactions were entered into by the petitioner under the bye-laws of the Exchange. The said submission need to be rejected in view of the conclusion arrived at by the Arbitral Tribunal as well as AAT - The filing of a counterclaim by the petitioner presupposes the understanding of the petitioner that the Arbitral Tribunal and the AAT has jurisdiction to arbitrate the claims and counterclaim of the parties. It is a different issue that the Arbitral Tribunal as well as AAT has rejected the counterclaim of the petitioner on the ground that the counterclaim concerns the Exchange and the petitioner and the reliefs are not within the jurisdiction of the Arbitral Tribunal.
The petitioner could not have challenged the very jurisdiction of the Arbitral Tribunal to which it has sought recourse. In fact, there is no challenge in the counterclaim filed before the Arbitral Tribunal or in the appeal before the AAT to the vires of the said circular. Hence, the contention of the learned counsel for the petitioner with regard to the jurisdiction of the Arbitral Tribunal to arbitrate the claims filed by the respondents need to be rejected.
Appeal dismissed.
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2015 (1) TMI 1515
Assessment ex parte u/s 144 - estimating the gross profit @ 8% of contract and hire receipts - HELD THAT:- AO passed the assessment order ex parte which shows that the proper opportunity of being heard was not afforded to the assessee and the ld. CIT(A) without bringing any cogent material in support of his decision confirmed the addition made by the AO.
In our opinion the impugned order passed by the ld. CIT(A) is not a speaking order. It is well settled that the order/judgment unsupported by reason is not a judgment in the eyes of law.
It is also true that the reasons are the link between the material on record and the conclusion thereafter by the Court/Appellate authority. In our view the CIT(A) should have properly considered the arguments of the assessee as well as findings given by the AO and thereafter he should have made independent findings either in favour or against the assessee. We are of the opinion that the Ld. CIT(A) had not passed a proper order in the eyes of law- See GUJARAT THEMIS BIOSYN LTD. VERSUS JOINT COMMISSIONER OF INCOME-TAX. [1999 (8) TMI 109 - ITAT AHMEDABAD-C] - Appeal of the assessee is allowed for statistical purposes.
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2015 (1) TMI 1514
Challenge to judgment refusing to entertain the petition for winding up of the respondent company - HELD THAT:- The view taken by the learned Company Judge is just and proper. The suppression of fact in respect of filing of suit before the Competent Court cannot be taken as lightly. Therefore, the view taken by the learned Company Judge agreed upon. There are no infirmity in the order.
Therefore, the same is deserves to be dismissed and is dismissed accordingly.
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2015 (1) TMI 1513
Entitlement to compensation - HELD THAT:- In view of the judgment in THE CHIEF ENGINEER, THE EXECUTIVE ENGINEER, THE SPECIAL LAND ACQUISITION OFFICER VERSUS TIPPANNA, HANMANTH, TIMMAMMA, NAGAWWA, NASIRODDIN, MD. PATEL S/O BABASAB, SUMITRA, SMT. RATNABAI, SMT. DYAVAMMA, ERANNA, BHEEMANNA, SMT. KAMALABAI, SMT. ROSHANBEE, THE SPECIAL LAND ACQUISITION OFFICER, BALARAJ, RAJAPPA AND OTHER [2015 (1) TMI 1512 - KARNATAKA HIGH COURT], the appeals filed by the Government are partly allowed. The cross objections filed by the claimants are dismissed. Accordingly, the order passed by the Reference Court stands modified.
The applications filed for stay in all the appeals do not survive for consideration and hence, they are disposed of.
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2015 (1) TMI 1512
Enhancement of compensation - Dispute with regard to the character of the lands - claimants have not proved the source of irrigation - HELD THAT:- It is for this Court to find out whether the learned Judge has awarded a just compensation or not. The claimants have relied on Ex.P15 namely LAC No.4/2006 pertaining to the notification of the year 1997 in which compensation of Rs.2,40,000/- per acre has been awarded. The lands in question in LAC No.4/2006 were situated in Gulbarga taluk and district and it was the black soil and was a fertile irrigation land. Another judgment referred to by the claimants i.e. MFA No.30605/2008 pertains to UKP, in which the compensation awarded was Rs.3,36,000/- per acre for the notification of the year 2003. When these two notifications which were the subject matter in the above judgments are taken into account, there has to be reconsideration.
In this regard, the compensation is recalculated on the basis of Ex.P15 in LAC No.4/2006 in which the compensation of Rs.2,40,000/- per acre was awarded for the notification of the year 1997. For the gap of 9 years between 1997 notification and 2006 notification, escalation of 8% is to be considered. If it is calculated, it comes to Rs.4,12,800/-. If escalation is taken at 10%, it comes to Rs.4,56,000/-. If the judgment in MFA No.30605/2008 is taken into account, the compensation comes to Rs.4,16,000/-. In view of this dichotomy, it is decided to select it at 8%. Accordingly, the same is calculated for the purpose of awarding compensation. Hence, it is just and reasonable to award Rs.4,15,000/- per acre along with statutory benefits. Accordingly, the same is awarded.
The judgment and award passed by the Reference Court stands modified. The cross objections filed by the claimant for enhancement of compensation is dismissed. Appeals filed by the Government and the beneficiary are partly allowed.
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2015 (1) TMI 1511
Seeking appointment of an Arbitrator to go into the disputes and differences that have arisen between the Petitioner and the Respondents under the Share Purchase Agreement - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- A perusal of the relevant clauses of the Agreements providing for Arbitration and the facts set out herein adequately satisfies the Court that disputes and differences between the Petitioner and the Respondents have arisen which require resolution by a process of Arbitration as contemplated in the Agreements between the parties. The Petitioner had appointed its Arbitrator (Mr. Justice S.H. Kapadia, a former Chief Justice of India) and despite notice, the Respondents have failed to make the requisite appointment. The said lapse/failure would confer jurisdiction Under Section 11(6) of the Arbitration Act to appoint an Arbitrator on behalf of the Respondents.
The facts stated in the present applications showing the involvement of the second Respondent and the decision of this Court in CHLORO CONTROLS (I) P. LTD. VERSUS SEVERN TRENT WATER PURIFICATION INC. & ORS. [2014 (1) TMI 830 - SUPREME COURT] would justify appointment of an Arbitrator on behalf of both the Respondents and permit the process of Arbitration to be conducted by lifting the corporate veil to ascertain the role of the second Respondent in the transactions in question as claimed by the Petitioner.
Shri Justice A.K. Patnaik, a former judge of this Court, is appointed to act as the arbitrator on behalf of both the Respondents. The two learned Arbitrators will now proceed to appoint a third Arbitrator i.e. Umpire and thereafter the arbitration proceedings will commence and conclude as expeditiously as possible - petition allowed.
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2015 (1) TMI 1510
Capital gains on sale of hospital land and building - taxable as short-term capital gains in the hands of the appellant-firm or in the hands of the two partners - real ownership - Immovable property as introduced by the partners towards their capital contribution - HELD THAT:- Tribunal in K. D. Pandey [1977 (4) TMI 35 - ALLAHABAD HIGH COURT] held that there was no effective transfer of the building from the assessee to the partnership firm and that he continued to be the owner of the hotel building and that the entire value thereof should be included in his net wealth. The matter was further carried to the Hon'ble Allahabad High Court by the assessee [1977 (4) TMI 35 - ALLAHABAD HIGH COURT] wherein as Lordship referred to Sec. 14 of the Indian Partnership Act, 1932, Sec. 5 of the Transfer of Property Act, 1882 and Sec. 17(1)(b) of the Registration Act, 1908 and held that the partner can bring his immovable property into the stock or capital of the firm otherwise than by means of a registered instrument of conveyance. And as as soon as a partner intends that his separate properties should become partnership properties and they are treated as such, then by virtue of the provisions of the Contract Act and the Partnership Act, the properties become the properties of the firm and that this result is not prohibited by any provision in the Transfer of Property Act or the Indian Registration Act.
Whether the assessee firm can get the benefit of Sec. 54EC, even though an investment in respect of capital gain is made by the two partners individually in the notified securities i.e. bonds issued by the Rural Electrification Corporation Ltd. (RECL) - the assessee firm has been dissolved on 02-04-2008 and before the dissolution the professional assets i.e. hospital building and land were sold out - On perusal of the language used in Sec. 54EC, it is provided that the assessee has to make the investment within a period of six months in the notified securities after the date of transferred of capital asset. The words used in Sec. 54EC are - “the assessee has invested the whole or any part of capital gains in the long-term specified asset”.
As we have held that the property which was sold out, it was property of the assessee firm and hence, the capital gain is taxable in the hands of the assessee firm. At the same time even though the bonds are purchased on the names of the two partners, it can be said that irrespective of the way, how the sale consideration was credited to the bank accounts of two partners, but the benefit of Sec. 54EC cannot be deprived to the assessee firm.
As admittedly, even on the dissolution of the firm the assessee as a partner has a right to get back their capital as per the final valuation done on the date of dissolution or otherwise. In fact, for taking said view we get the support from the decision in the case of DIT (International Taxation) Vs. Mrs. Jennifer Bhide [2011 (9) TMI 161 - KARNATAKA HIGH COURT].
In the present case, there is another angle to look into. Admittedly the assessee firm has claimed the depreciation on the hospital building and hence, Sec. 50 is applicable. In terms of Sec. 50 whatever Capital Gain is worked out on the depreciable asset then the same is treated as Short Term Capital Gain.
Whether the assessee firm can claim the benefit of Sec. 54EC which is specified for the benefit of Long Term Capital Gain? This issue is decided in favour of the assessee by case of CIT Vs. ACe Builders (P) Ltd. [2005 (3) TMI 36 - BOMBAY HIGH COURT] We, accordingly, hold that even though the assessee firm has claimed the depreciation on the hospital building but benefit of Sec. 54EC can be given following the legal principles laid down by the Hon'ble Bombay High Court in the case of ACe Builders (P) Ltd. (supra). We, accordingly, direct the Assessing Officer to give the benefit of Sec. 54EC to the assessee firm subject to ceiling of Rs. 50 Lacs as per proviso to Sec. 54EC of the Act. In the result, Ground No. 4 is allowed.
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2015 (1) TMI 1509
Capital gains on sale of hospital land and building - taxable as short-term capital gains in the hands of the appellant-firm or in the hands of the two partners - determination of real ownership - immovable property is introduced by the partners towards their capital contribution - CIT(A) held that the capital gains on sale of hospital land and building was taxable as short-term capital gains in the hands of the appellant-firm - HELD THAT:- We find that the identical issue has come for the consideration before the Hon'ble High Court of Allahabad in the case of K.D. Pandey [1977 (4) TMI 35 - ALLAHABAD HIGH COURT] wherein held that the partner can bring his immovable property into the stock or capital of the firm otherwise than by means of a registered instrument of conveyance. Tribunal was not justified in holding that the business assets consisting of the Grand Hotel could be transferred to the partnership only by a registered deed and that in the absence of such deed the building remained the individual property of partner. Tribunal was not justified in holding that the entire value of the building was assessable in the hands of the assessee, individual. We, accordingly, confirm the order of the learned CIT(A) on this issue and ground Nos. 1 and 2 are dismissed.
Benefit of sec 54EC - There is no dispute on the legal position that the investment made by two partners on their individual names in the notified RECL bonds is otherwise eligible investment for getting the exemption from the taxable capital gain u/s 54EC of the Act as applicable to asst. yr. 2008-09. As per facts on record, the assessee-firm has been dissolved on 2nd April, 2008 and before the dissolution the professional assets i.e. hospital building and land were sold out.
Admittedly the assessee-firm has claimed the depreciation on the hospital building and hence, s. 50 is applicable. In terms of s. 50 whatever capital gain is worked out on the depreciable asset then the same is treated as short-term capital gain.
Whether the assessee-firm can claim the benefit of sec 54EC which is specified for the benefit of long-term capital gain? - This issue is decided in favour of the assessee by case of CIT vs. ACE Builders (P) Ltd. [2005 (3) TMI 36 - BOMBAY HIGH COURT] We, accordingly, hold that even though the assessee-firm has claimed the depreciation on the hospital building but benefit of s. 54EC can be given following the legal principles laid down (supra). We, direct the AO to give the benefit of s. 54EC to the assessee-firm subject to ceiling of Rs. 50 lacs as per proviso to s. 54EC of the Act. In the result, ground No. 4 is allowed.
Addition made by the AO, on a protective basis, towards long-term capital gain on account of the assessee's 50 per cent share in sale of land and building - It was the contention of both the assessees that the hospital building and land which were otherwise the properties of the firm were claimed as having the individual ownership of those two partners and accordingly, both the assessees (partners) declared the long-term capital gain in their individual returns and also claimed the benefit by making the investment in the notified bonds under s. 54EC and also s. 54 of the Act. While completing the assessments of these two partners, the AO made the addition of capital gain on protective basis.
CIT(A) deleted the addition as he upheld the addition in the hands of the firm on substantive basis. We have held that the capital gain is taxable in the hands of the firm upholding the order of the learned CIT(A) on substantive basis. Hence, the Revenue's appeals become infructuous and do not survive and hence, both the appeals of the Revenue are dismissed.
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2015 (1) TMI 1508
Denial of Abatement N/N. 1/2006-S.T., dated 1-3-2006 - inclusion of value of free supply - it was held by CESTAT that 'the exemption/abatement Notifications cannot be challenged as ultra vires the charging provisions of service tax legislation.'
HELD THAT:- Appeal admitted.
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2015 (1) TMI 1507
Validity of title acquired through court auction - Claim of title by prescription based on continuous possession - Suit filled for declaration as regards ownership of the Appellants, eviction of Respondents and demolition of the structure - Appellants claimed ownership based on a court auction purchase.
HELD THAT:- The law is that even if the decree under which the property was sold in auction is ultimately set aside or modified, the sale will remain unaffected. There is however a distinction in the case of a decree holder-purchaser and a stranger-auction purchaser. A stranger-auction purchaser is placed on a different pedestal. He is a bonafide purchaser since he looks only to the decree and the order in auction, and he must be protected. This is also the legislative policy. The Courts must strive to give effect to the legislative policy and uphold the right of a stranger purchaser at the auction held by the Court.
Both the Courts below have noted the fact that the Appellants have asserted their right on the basis of the court auction but have failed to give a legal effect to the title asserted by the Appellants. Since the Appellants have purchased the property through a Court auction and that it is the policy of legislature, as emphasized by the Apex Court in the case of Janatha Textiles & Ors. V/s. Tax Recovery Officer & Anr [2008 (5) TMI 12 - SUPREME COURT] to protect and to give effect to the Court auction, the Courts below ought to have considered the issue seriously. It will be against the legislative policy and the mandate of the Apex Court to deprive the Appellants the benefit of their right accrued through a Court auction.
The High Court found that the lower courts erred in not upholding the appellants' title acquired through the court auction and set aside their judgments.
Prescription based on registration and Article 528 - The Courts below have found that except for stray sentence that Appellants were in possession for 30 years the claim is not elaborated. It is difficult to find fault with the reasoning of the learned Trial Judge. Merely by way of scattered sentences in plaint a case of prescription cannot be pleaded. It is not for the Court to Suo moto take cognizance of possible arguments, but the facts must be pieced together in a proposition to be asserted.
Article 526 of the Code - Neither in the plaint nor in the Courts below an argument based on Article 526 of the Portuguese Civil Code is advanced. This cannot be considered as a pure question of law and it is not permissible to raise for the first time in the second appeal. In view of this position, finding of the Courts below that the Appellants have failed to established the right by prescription cannot be disturbed. Though the additional substantial question of law has been allowed to be incorporated in the appeal memo in view of interest of justice and completeness of proceedings, it has to be seen whether this argument was made in specific terms before the Courts below.
The High Court concluded that the appellants acquired a valid title to the property through the court auction and were entitled to relief based on this ground. The judgments and decrees of the lower courts were quashed and set aside, and the suit was decreed in favor of the appellants in terms of the prayer clauses a, b, c, and d of the plaint. No costs were awarded.
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2015 (1) TMI 1506
Bogus purchases - notice came back unserved from the suppliers after several years of the purchases - HELD THAT:- Assessee has exported the purchases made and the exports have not been disputed. The purchase bills also contained the stamped by Sales Tax Check posts.
Revenue is not disputing the quantitative details of opening and closing stock, purchases and sales payments have been made through bank. Hence, merely because notice came back unserved from the suppliers after several years of the purchases made assessee’s purchases cannot be disallowed. Accordingly, we set aside the order of Authorities below and decided the issue in favour of assessee.
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2015 (1) TMI 1505
Charge memo issued to CIT(A) - disciplinary actions on allegations of mala fide against an officer exercising quasi-judicial powers - as alleged CIT (Appeals), had allowed certain appeals without properly appreciating the facts or going through the records - as decided by HC [2014 (8) TMI 1243 - DELHI HIGH COURT] Mere erroneous decisions on account of a mistake of law or facts, cannot be the basis of commencing proceedings for misconduct - HELD THAT:- SLP dismissed.
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2015 (1) TMI 1504
Computation of book profit - ‘lease equalization charges’ - Tribunal held that the adjustment made by the Assessing Authority by adding the amount of lease equalization charges to compute the Book Profits under Section 115JA was not permissible since the said amount was not covered within any of the clauses to Explanation below Section 115JA(2) including clause (b)
Whether the Appellate Authorities were correct in reversing the finding of the Assessing Officer that a sum ‘lease equalization account’ is in the nature of a reserve and the same had to be added back when computing the Book Profits as per Explanation u/s 115JA(2) of the Act.?
HELD THAT:- The ‘lease equalization charges’ is not one of the amounts which is covered under any of the clauses to Explanation to Section 115JA(2). It cannot be treated as a reserve. As the name suggest, this ‘lease equalization charges’ is nothing but the difference between the statutory depreciation on rentals and the recovery of cost of capital. Therefore, merely because the said amount entered in the P&L account, in effect, makes no difference. At any rate, it cannot be treated as a reserve. Therefore, both the Appellate Authorities were justified in directing deletion of the said amount. Decided in favour of the assessee.
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2015 (1) TMI 1503
Requirement on the part of bank for demarcation of property before the execution of the sale deed - bids invited on “as is whereas basis” - HELD THAT:- The condition “as is whereas basis” does not mean that property may not be in existence at all. It only means whatever the condition of the property on the spot is same shall be sold in the same condition. However, if property is not at all in existence on the spot or is not identifiable/can be located on the spot, then neither sale deed can be executed of the non existing property nor purchaser can be handed over possession thereof. Not only this, Bank itself has made several requests to the Collector to demarcate the property auctioned, therefore, Bank ought to have persuaded the Collector to undertake the demarcation proceedings at the earliest. Petitioner should not be allowed to suffer adversely for the lapses on the part of the Revenue Authorities or the Bank.
Present petition was preferred in the year 2008 and vide order dated 23.10.2008 Bank was directed not to create any third party interest meanwhile.
Keeping in mind the principle of equity, a mandamus can be issued in favour of the petitioner against the Bank to get the property demarcated preferably within eight weeks from today and to execute the sale deed of the auctioned property within next four weeks having received the balance of the consideration alongwith interest @ 10% p.a from the petitioner w.e.f 1 May, 2008 till the date of actual payment by the petitioner.
Petitioner is directed to deposit balance amount with the Bank alongwith interest @ 10% p.a w.e.f 1 May, 2008 within four weeks from today positively - Petition allowed.
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2015 (1) TMI 1502
Change-over of CPF to Pension Scheme - Request of the Appellants to switch-over to the Pension Scheme pursuant to the O.M. dated 1.5.1987, had been turned down - applicability of the O.M. dated 01.05.1987 to the employees of NWDA - whether reliance placed by the Tribunal upon the decision in S.L. Verma's case [2006 (11) TMI 722 - SUPREME COURT] was correct?
HELD THAT:- Based on the provisions in O.M. proposal for framing of DCRG Rules for employees of NWDA was processed by the officers on deputation from pensionable departments with help from officers/employees. The officer and employees were fully involved and they cannot claim that they were totally ignorant of the orders. The changeover of employees cannot be suo-motto made applicable for NWDA employees. The Petitioners have failed to prove arbitrary action of the Respondents and hence SUDHIR CHANDRA SARKAR VERSUS TATA IRON & STEEL [1984 (3) TMI 418 - SUPREME COURT], and ACCOUNTANT GENERAL, BIHAR AND ANOTHER VERSUS N. BAKSHI [1961 (11) TMI 69 - SUPREME COURT], has no application.
It can be concluded that NWDA had framed its Regulation the CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. As NWDA is an autonomous body under the Ministry of Water Resources, it has framed it own bye-laws governing the employees. It has been time and again reiterated that the Court must adopt an attitude of total non-interference or minimal interference in the matter of interpretation of Rules framed by autonomous institutions.
Parity between the employees of NWDA and Central Government employees - HELD THAT:- NWDA cannot be treated as an instrumentality of the State Under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In ZEE TELEFILMS LTD & ANR VERSUS UOI. & ORS [2005 (2) TMI 773 - SUPREME COURT], it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government Under Sub-rule (6)(iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable.
Even if it is presumed that NWDA is "State" Under Article 12 of the Constitution, the Appellants have failed to prove that they are at par with their counterparts, with whom they claim parity. As held by this Court in UNION TERRITORY CHANDIGARH VERSUS KRISHAN BHANDARI [1996 (10) TMI 528 - SUPREME COURT], the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State Under Article 12. Thus, the employees of NWDA cannot be said to be 'Central Government Employees' as stated in the O.M. for its applicability.
Thus, by reason that the employees are governed by NWDA CPF Rules, 1982, the O.M. dated 01.05.1987 is not applicable to the Appellant-employees. Further, as they have not established that they are Central Government employees, at par with their counterparts, their claim of parity with Central Government Employees is also defeated.
There are no merit in these appeals which are accordingly dismissed.
Seeking direction/s to the Respondents to introduce and implement CCS Pension Scheme, 1972 to all the employees of the Navodaya Vidyalaya Samiti - HELD THAT:- The cut-off date is a domain of the employer and so the introduction of new scheme of pension will be done considering all the relevant factors including financial viability of the same. No interference is warranted unless there is gross injustice is perpetrated. The Appellants have failed to prove any arbitrariness and discrimination with respect to the New Pension Scheme.
The writ petitions and the appeal are also dismissed.
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2015 (1) TMI 1501
Deduction u/s 80IC - recomputation of profits - assessee was purchasing gas stove bodies at much below the market price and the sister concern had also borne the expenses of freight - addition to taxable profits made by AO by applying the provisions of section 80IA(10) - as argued the assessee firm has not earned any extra profits by making transactions with the sister concern - HELD THAT:- CIT(A) has correctly adjudicated the issue particularly because of the higher GP rate was accepted by Revenue in the earlier years. We find that Ld. CIT(A) was justified because she had restricted the disallowance by applying 9.29% GP rate returned by the sister concern known as M./s Shivam Enterprises. Therefore, we find nothing wrong with the order of Ld. CIT(A) and we confirm the same and hence ground No.1 of the Revenue as well as of the assessee is rejected.
Deduction u/s 80IC on account of royalty - as mainly submitted that royalty was paid @ Rs. 2/- per gas stove in the immediately preceding year which was accepted by the Revenue in the assessment framed u/s 143(3) - as per CIT(A) addition made by the Ld. A.O. is found to be without any cogent basis - HELD THAT:- CIT(A) had correctly adjudicated the issue particularly in the light of the fact that lower royalty was accepted in the earlier years . Further, the assessee had paid the huge commission of Rs. 2,23,27,903/- to M/s BPCl, therefore, we find nothing wrong with the order of Ld. CIT(A) and we confirm the same.
Deduction u/s 80IC - Addition on account of non debiting of the partner’s remuneration provided in the Partnership deed - As argued debiting of such remuneration will only result into reduction of manufacturing profits and no taxability will arise - HELD THAT:- As decided in I.T.O. NAHAN VERSUS M/S GNG ENTERPRISES [2014 (11) TMI 1280 - ITAT CHANDIGARH] before allowing deduction u/s 80IC the income has to be computed as per the provisions of Sections 32 to 43 of the Act. Deduction could have been allowed only after computing the income under a particular head. In this case the income in the hands of the a firm was computed in terms of Sec 28 to 43D and Sec 40(b) in respect of allowance of interest and salary falls between these two provisions and therefore full effect has to be given to this provisions also.
As later on it was decided not to pay salary and interest to the partners. This does not seems to be correct because before the Assessing officer it was admitted that remuneration and interest has not been paid as per the partnership deed. Further there is no evidence for the same and in any case this will not make a difference - tHUS for making deduction under chapter VIA the profits has to be computed specifically as per a particular provision of a particular head of income because of the definition of gross total income u/s 80B(5).
In view of the above clear position the deduction u/s 80IC was allowable only after reducing the interest and remuneration payable to the partners. we set aside the order of Ld. CIT(A) and restore that of the Assessing office - Decided against assessee.
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