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Showing 1 to 20 of 2062 Records
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2019 (1) TMI 2066
Deduction u/s. 80P(2)(a)(i) on interest income earned from banks other than cooperative banks - assessee is a cooperative society engaged in providing credit facilities to its members. Return was filed declaring NIL income after availing deduction u/s. 80P - AO observed that the assessee earned interest income from banks, which, in his opinion was not eligible for deduction u/s. 80P - HELD THAT:- As no change in the legal position prevailing on this issue after the passing of the order by the Pune Bench of the Tribunal in Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit [2015 (8) TMI 1085 - ITAT PUNE] and a host of other orders reiterating the similar view, respectfully following the precedent, we approve the impugned order in allowing deduction u/s. 80P on the interest income. Revenue appeal dismissed.
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2019 (1) TMI 2065
Disallowance of interest on Bonds issued to the shareholders of erstwhile company amalgamated with appellant company - HELD THAT:- Identical issue was involved in appellant's own case for earlier assessment years. The CIT(A)-1, Baroda in his order for AY. 1998-99 has held that such interest is not allowable as it was held to be not for the purpose of business and ld. CIT(A) followed the decision and disallowance was upheld. Decided against the assessee.
Disallowance being 5% of other expenses - HELD THAT:- AO has we find adopted a global approach in the matter and brought about the instances where the assessee was unable to substantiate its claim of the relevant expenditure being incurred only and exclusively for business purposes. No presumption it is trite, can hold, and it is only on a determination of the discrepancies in the assessee’s claim can be proceed to estimate the same by applying a percentage that he considers justified, also delineating the reason for the same, so that the appellate authority would while adjudicating on quantum, i.e., where required to do so, be aware of the same, and consider it on merits. Decided in favour of assessee.
Disallowance u/s. 43B in respect of employer’s contribution to PF before due date of return - HELD THAT:- Since CIT(A) has followed earlier year in assessee’s own case as held Employer's contribution of PF etc. paid within the year, though with a delay as claimed in the return of income and contributions paid even after the end of previous year but before the due date of return of income cannot be held as disallowable u/s. 43B, thus, we allow this ground of appeal.
Disallowing of PF damages U/S. 14B of the PF Act - HELD THAT:- CIT(A) has discussed that 40% of the disallowance has been considered as compensatory in nature and has been allowed by way of deduction in computation of total income. Following the same, 40% of sum is directed to be allowed as a deduction in computation of income and disallowance of the balance amount is upheld.
Disallowance being salary and wages of employees of Packart Press Unit - HELD THAT:- As only the expenses as stated incurred or in relation to which the liability has, in terms of underlying contract, stands accrued, shall be allowed as an expenditure in the assessment for the current year, and set aside the matter back to the file of the A.O. to decide the same after proper examination of the relevant facts, giving reasonable opportunity to the assessee to present its case before him, and decide as per law.
Disallowance made u/s. 40A(9) in respect of payment to Ambalal Sarabhai Foundation - HELD THAT:- We hold that payment made to Ambalal Sarabhai Foundation is outside the scope of provision of Section 40A(9) of Income Tax Act.
Disallowance of 50% of Foreign travel expenses - HELD THAT:- As we can see, one of the Director Dr. Anand Sarabhai visited USA for company related discussion with various customers to whom company is exporting its product vis Amphoteicin B and met various other parties for export and has submitted foreign tour details to the lower authorities. Therefore, we allow this ground of appeal.
Disallowance made for employees contribution - HELD THAT:- This issue is covered against the assessee by the judgment of GSRTC [2014 (1) TMI 502 - GUJARAT HIGH COURT] Therefore, respectfully following the Jurisdictional High Court, we dismiss this ground of appeal.
Addition of buying commission - HELD THAT:- An identical issue were involved in appellant’s own case for earlier year in CIT order for assessment year 1998-99 it has been mentioned that the issue decided in favour of the assessee.
Festival allowance, Misc. expenses, Telephone expenses, Vehicle expenses etc, 40% of Provident Fund damages, selling expenses, prior period expenses allowed by CIT(A)
Allowance of balance written off - HELD THAT:-Assessee explained the said amounts to have been paid to customers in terms of tenders issued by them, so that the write-off of the said amount, on it being found not recoverable, is only a nature of business loss. Similarly, the petty cash amount at depot also represents an allowable business loss.
Payment made to ONGC being claim for difference in price - HELD THAT:- As decided in Saurashtra Cement & Chemical Industries [1994 (10) TMI 30 - GUJARAT HIGH COURT] merely because the assessee was negotiating with the ONGC alongwith other members of the association for softer terms and for charging simple interest instead of compound interest would not mean that this liability was in any manner contingent. The assessee when debited such amount in the profit and loss account towards interest liability, the same was therefore rightly granted by the assessing officer. Commissioner therefore committed legal error in disturbing such order of AO. Decided against revenue.
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2019 (1) TMI 2064
TP Adjustment - advertisement and marketing expenditure (AMP) incurred can be treated as an international transaction or not? - HELD THAT:- Entire issues are covered by the Order of ITAT, Delhi Bench in the case of assessee for A.Y. 2007-2008 [2018 (12) TMI 1264 - ITAT DELHI] in which it was held that merely because there is an incidental benefit to A.E. Sony Company, it cannot be stated that AMP expenses incurred by the assessee was for promoting the brand Sony Japan. The issues have been decided in favour of assessee on identical facts. Merely because department has filed M.A. in the case of M/s. Sony Ericson Mobile Communication India Private Limited, is no ground to take a contrary view at this stage. Appeal of Assessee is allowed.
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2019 (1) TMI 2063
TP adjustment at entity level - adjustment should be restricted to international transactions - main contention of AR is that the adjustment to ALP should be computed only by taking the international transactions carried out with the AE and not at entity level which admittedly includes non AE transactions also - HELD THAT:- We hold that the objective of computing the ALP is to determine the income arising from an international transaction and accordingly, the adjustment that is required to be made is to be limited to the international transactions with the AEs only and not to the entity / segmental level transactions. This proposition if not accepted would also result in absurdity wherein the total value of international transactions would be much less than the adjustment made to ALP.
As relying on Tara Jewels Exports Private Limited [2015 (12) TMI 1130 - BOMBAY HIGH COURT] we direct the TPO to recomputed the ALP of the international transactions of the assessee by considering only the transactions with AE.
Non-grant of credit for tax deducted at source - As this matter is a subject matter of verification by the ld AO, we direct the ld AO to verify this factual aspect and grant TDS credit accordingly.
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2019 (1) TMI 2062
Addition u/s 68 on account of Barter transaction - Issue of shares for consideration other than cash - HELD THAT:- As decided in M/s Anand Enterprises Ltd. [2018 (9) TMI 1779 - ITAT KOLKATA] this is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties. Moreover, in the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash. Hence we hold that provision of section 68 of the Act are not applicable in the instant case - Decided in favour of assessee.
Disallowance u/s 14A r.w.r. 8D (2) (iii) taking into account those investments which yielded exempted income - We note that in the case of REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] has held that it is only the investments which yields dividend during the previous year that has to be considered while adopting the average value of investments for the purpose of Rule 8D(2)(ii) & (iii) of the Rules. The aforesaid view of the Tribunal has since been affirmed as correct by the Hon’ble Calcutta High Court in REI. AGRO LTD. [2014 (4) TMI 713 - CALCUTTA HIGH COURT] in the appeal against the order of the Tribunal in the case of REI Agro Ltd. (supra).
Besides, no disallowance u/s 14A, when shares which yielded tax free income are held as stock in trade, as held in the case of CIT Vs. GKK Capital Markets (P) Ltd. [2017 (2) TMI 628 - CALCUTTA HIGH COURT] Therefore, the AO is directed to compute the disallowance u/s 14, read with rule 8D, as per the principles laid down. Decided against revenue.
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2019 (1) TMI 2061
Addition of on–money in cash towards purchase of a flat lies in a search and seizure operation conducted in case of Hiranandani Group and related persons - allegation of denial of natural justice - incriminating materials are in the form of pen drive found and seized from the residence of one of the employees of Hiranandani Group and a statement recorded u/s 132(4) from Director and Promoter of the Group, wherein, the details of on–money paid by buyers / prospective buyers are mentioned and in the statement recorded u/s 132(4) has admitted receipt of on–money in cash towards sale of flats / shops.
HELD THAT:- On a perusal of the remand report it is very much clear that the AO has completely avoided the issue and there is no mention whether the assessee was provided with all the adverse material and if, not so, whether he has provided them to the assessee as per the directions of Commissioner (Appeals). Thus, the addition made on account of on–money payment in cash is without complying with the primary and fundamental requirement of rules of natural justice.
Assessment order reveals that the AO has heavily relied upon the statement recorded from Shri Niranjan Hiranandani, for making the disputed addition, however, AO has not provided the full text of such statement recorded and has also not allowed the assessee an opportunity to cross–examine Shri Niranjan Hiranandani, and other persons whose statements were relied upon. This, is in gross violation of rules of natural justice and against the basic principle of law. Addition made cannot be sustained.
Addition on account of on–money is the information contained in the pen drive found during the search and seizure operation and the statement recorded u/s 132(4) - The said pen drive was not found from the possession of the assessee but in course of search and seizure operation conducted in case of a third party. Therefore, in absence of further corroborative evidence to establish that the contents of the pen drive are correct and authentic to the extent that the assessee paid on–money in cash, no addition can be made u/s 69B of the Act.
Also in the statement recorded u/s 132(4) of the Act, Shi Niranjan Hirandani has not made any reference to the assessee, therefore, in absence of any other corroborative evidence to establish that assessee has paid on–money in cash, no addition can be made.
As in absence of any corroborative evidence brought on record to conclusively prove that the assessee has paid on–money of Rs. 42 lakh in cash to M/s. Crescendo Associates towards purchase of flat, delete the addition made by the AO.
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2019 (1) TMI 2060
Addition u/s 68 - unexplained cash credit - shares issued by the assessee company other than cash, (barter system), under an agreement - HELD THAT:- This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties.
Moreover, in the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash.
Hence we hold that provision of section 68 are not applicable in the instant case and accordingly the entire addition deserves to be deleted which has rightly been done by the CIT(A) which does not require any interference. Accordingly, grounds raised by the revenue are dismissed.
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2019 (1) TMI 2059
Addition u/s. 68 - unexplained cash credit - Allotment of shares of the company in exchange for acquisition of shares - HELD THAT:- The shares subscribers have given shares in exchange of the shares of the assessee and no sum of money has been transferred to the assessee on this score.
This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties. Moreover, in the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash. Hence we hold that provision of section 68 of the Act are not applicable in the instant case. See M/S ANAND ENTERPRISES LTD. [2018 (9) TMI 1779 - ITAT KOLKATA] - Decided in favour of assessee.
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2019 (1) TMI 2058
Defects in the civil structure of the airport metro line - did such defects have a material adverse effect on the performance of the obligation of DAMEPL under CA? - have such defects been cured by DMRC and / or have any effective steps been taken within a period of 90 days from the date of notice by DAMEPL to cure the defects by DMRC and thus were DMRC in breach of the CA as per 29.5.1 (i)?
HELD THAT:- The Arbitral Tribunal was required to treat and give legal effect to the sanction and permission accorded for public carriage of passengers vide CMRS certificate of fitness dated 18th January, 2013. Sanction/permission was given after examining the civil structure be it cracks, twists and gaps in the girders, which were not found to be compromising fitness and safety for public use. Conspicuously, the Arbitral Tribunal did not consider the legal effect and consequence of the permission/sanction accorded by the CMRS in the first portion of the Award recorded in the summary of arbitral views in paragraphs 77, 78 and paragraph 115 of the Award. Grant and effect of sanction/permission accorded by CMRS dated 18th January, 2013 was ignored and bypassed.
The impugned Award suffers from perversity, irrationality and patent illegality in the face of the Award in the form of confusion and ambivalence as to the termination notice and the date of termination. Most importantly, the Arbitral Tribunal had ignored and did not consider vital evidence of certification for commercial operations accorded by CMRS while deciding the question of civil structure faults and in holding that no effective steps to cure the defects were taken. Reasoning virtually over-rules, negates and rejects statutory certification accorded by CMRS. Arbitral Tribunal without “reason” has held that the permission accorded and subsequent satisfactory commercial operations were not relevant and inconsequential. Pertinently certification/permission was granted by CMRS after due verification of the civil structure including the defects in girders. Certification by CMRS was binding and its validity was not capable of “submission to arbitration”. Cumulative effect of the aforesaid discussions is that the Award shocks conscience of the Court.
Re-appreciation of evidence is not permitted and should not be undertaken. An award based on little or no evidence which does not measure in quality to a trained legal mind would not be held to be invalid on this score. Under the heading “Justice” it was observed that an award can be said to be against justice, when it shocks the conscience of the Court. Thereafter, the Supreme Court dealt with the concept and ground of “morality” as distinct and separate from “justice”. Under the heading “Patent Illegality” reference was made to Section 28(1)(a) and (3), which requires the Arbitral Tribunal to decide arbitration in accordance with the substantive law for the time being in force and in accordance with the terms of the contract and to take into account usages of the trade applicable to the transaction. The last principle, it was observed, must be understood with the caveat that the Arbitrator can construe the terms of the contract in a reasonable manner. Construction of the terms of the contract is primarily for the Arbitrator to decide. The Courts would only interfere when the Arbitrator construed the contract in a way that it can be said that no fair minded or reasonable person would do.
The Award ignoring the clear position on both factual and legal has substantially allowed the claim of DAMEPL to hold that amount of Rs. 611.95 crores should be considered as equity contribution by promoters as it was close to commercial operation dated 23rd January, 2011. Balance 73.05 crores was considered to be office and maintenance expenses. The date of 23rd February, 2011 with reference to commencement of commercial operation is not to be found in any of the clauses and at best would have been rebuttable presumption that the money could be converted into equity but the fact that this amount was never converted into equity and in fact was treated and converted into subordinate debt.
Conclusion - Findings of the Arbitral Tribunal on “Termination for DMRC”s Event of Default” under Article 29.5 of the CA are set aside and quashed. Finding of the Arbitral Tribunal that Rs. 611.95 crores was equity for the purpose of Article 29.5.2 is also set-aside and quashed. Award of Rs. 2782.33 crores to DAMEPL under Article 25.2 as termination payment under Article 29.5.2 on “DMRC Event of Default” including the finding of Rs. 611.5 crores should be treated as equity in adjusted equity, is set aside and quashed. Direction/award for payment of interest under Article 29.8 would become infructuous.
Appeal allowed in part.
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2019 (1) TMI 2057
TDS u/s 195 - Disallowance u/s 40(a)(i) - legal and personal charges - services were rendered by the non resident certification agencies outside India - HELD THAT:- Assessee availed certification services from non residents in US for certifying its products to be sold in USA and Europe which was a pre condition for selling the products in those markets as the assessee has to ensure that the products meet the minimum quality standard.
For the said purpose the assessee paid to five parties as mentioned above and to the remaining two parties assessee paid professional charges for compilation of documents in USA for the purpose of transfer pricing requirements. The assessee made the payment towards the services rendered out in USA by these certification agencies and professional firms.
Whether the said constituted fee for technical services under section 9(1)(vii) and under 12(4) of Indo German DTAA? - Having considered the rival submissions and various case laws, we find that in the present case before us the payments were made to non residents for rendering services outside India and the recipients were not having any PE in India and thus income does not accrue or arise in India as there was no business transactions in India. Since the recipients do not have any PE in India and under Article of “Business Profit” of Double Taxation Avoidance Agreement such payments are not chargeable to tax in India unless the services were made available to the assessee in India.
Article 12(4) of DTAA between India and USA, such fee is chargeable to tax in India if such services “make available”, technical knowledge, experience, skill, knowhow and a process or transfer of technical plans or designs. However, all these certification agencies and professional firms have not made available such services to the assessee such as knowhow. Therefore, service rendered by them outside India is not chargeable to tax in India and the provisions of section 195 of the Act are not applicable and consequently the assessee is not liable to deduct TDS at source. Therefore disallowance under section 40(a)(i) of the Act is not correct. The case of the assessee is supported by a series of decisions as mentioned above in the case of DIT vs. TUV Bayren India Ltd [2015 (10) TMI 486 - BOMBAY HIGH COURT] wherein the Hon’ble Bombay High Court has held that audit work and certification would not come within the realm of fees for technical services under section 9(1)(vii) and under 12(4) of Indo German DTAA.
In the case of Diamond Services International P. Ltd. [2007 (12) TMI 182 - BOMBAY HIGH COURT] it was held by the Hon’ble Bombay High Court that payment without TDS made for grading certificate issued by foreign company to Indian clients involving no transfer of technical knowledge or skill. There was no imparting of its experience by the institute in favour of client.
On the principle of consistency also as held in the case of Pr. CIT vs. Quest Investment Advisors Pvt. Ltd [2018 (7) TMI 479 - BOMBAY HIGH COURT] that on the principle of consistency no disallowance is warranted when a fundamental aspect is accepted in other years. There is no change in facts and in law in the present case also. The expenses were allowed under similar facts by the Revenue in the earlier and succeeding years. Therefore, on this ground also disallowance is not called for. Accordingly, we are setting aside the order of Ld. CIT(A) and directing the AO to allow the deduction - Decided in favour of assessee.
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2019 (1) TMI 2056
Denial of exemption u/s 11 and 12 - findings of the Ld. CIT (A) that the assessee trust is not registered U/s 12AA for the impugned assessment year - HELD THAT:- In the instant case, the provisions of section 11 and 12 shall apply for assessment year 2016-17. For any assessment year preceding the assessment year 2016-17, it is to be seen that for such assessment year, whether assessment proceedings are pending before the AO as on the date of such registration i.e, 8.7.2016 and secondly, the objects and activities of such trust or institution remain the same for such preceding assessment year.
For the impugned assessment year during the pendency of the appeal before the ld CIT(A), the ld CIT(E) has granted the registration on 8.07.2016. Therefore, registration u/s 12AA was granted to the assessee trust well before its appeal arising out of the assessment order was disposed off by the ld CIT(E) vide his order dated 13.12.217. It follows that the assessee trust which obtained registration during the pendency of appeal before the ld CIT (A) shall be entitled for exemption under section 11 and 12
As we find that there is no finding of the lower authorities as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17.
Assessee trust is considered as registered u/s 12AA and eligible for exemption under section 11 and 12 of the Act for the impugned assessment year subject to examination by the Assessing officer as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17. The matter is accordingly set-aside to the file of the Assessing officer who shall examine as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17.
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2019 (1) TMI 2055
Publication of possession notice - Applicability of provisions of Rule 8(2) of the Security Interest (Enforcement) Rules, 2002 - award of interest at the rate of 8% per annum.
Whether the notice dated 31.03.2011 issued, and subsequently published, by the Petitioner, satisfies the statutory requirement under section 13(4) of the SARFAESI Act and Rule 8 of the Rules 2002? - HELD THAT:- Though the secured creditor has been statutorily empowered to enforce the security interest without intervention of the Court or the Tribunal, yet the statutory provisions prescribing the manner in which the security interest is to be enforced, are required to be scrupulously observed. If the provisions of Section 13(4) of the SARFAESI ACT are read in juxtaposition with Rules 2002, especially sub-Rule (1) to (4) and (6) of Rule 8 and sub-Rule (1) of Rule 9, it becomes explicitly clear that the secured asset, upon its turning into a non performing asset, cannot be dealt within a highhanded manner and disposed of in a casual manner, without adhering to the procedure prescribed by the Act and Rule 2002.
It is evident that the possession notice dated 13.04.2010 was not published in the newspaper, as is envisaged by Rule 8(2). Thus, there is total noncompliance of Rule 8(2) of the Rules 2002. The publication of the notice dated 31.03.2011, thus, does not salvage the position.
Award of interest at the rate of 8% per annum - HELD THAT:- The justifiability of the claim of interest at 30% per annum is required to be appreciated. There are two impediments which the petitioner needs to surmount. Firstly, the learned Presiding Officer, DRT, observed, more than once, that the parties had consented that the rate of interest which may be determined by the Tribunal would be acceptable to both of them. Even in the operative part of the impugned order in OA No. 31 of 2010, the learned Presiding Officer, DRT, made it abundantly clear that the rate of interest was determined in view of the consent given by both the parties - the Petitioner would now be precluded from the challenging the grant of interest at the rate of 8% per annum, based on the consent and concession made by the Petitioner as well.
The learned Chairperson, DRAT observed that the learned PO, DRT, exercised the discretion to award interest at the rate of 8% per annum correctly and not arbitrarily. It is required to agree with the learned Chairperson, DRAT. In the totality of the facts and circumstances, the award of interest at the rate of 8% per annum is just and proper. Thus the challenge to the impugned order on this count also falls through.
Thus, no interference is warranted by this court in exercise of writ jurisdiction. The Petitions, therefore, deserve to be dismissed.
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2019 (1) TMI 2054
Violation of principles of natural justice - failure to explain why the sole independent witness, Gurdev Singh Mann, who was present on the spot and in whose presence the search and seizure was carried out and being one of the witnesses for drawing the panchanamas, has not been examined by the prosecution - Offence punishable Under Section 15 of the Narcotic, Drugs and Psychotropic Substances Act, 1985 - carrying a huge quantity of bulk poppy husk - HELD THAT:- Indeed, Manjit Singh (PW 2) had received information telephonically and had passed on the same to his contemporary who recorded the FIR but the fact remains that he himself investigated the case. The unfairness in investigation becomes more glaring when we peruse the search and seizure panchanamas. It is seen that the FIR number has been noted at the top of these panchanamas. It is unfathomable as to how the FIR number could be noted on the search and seizure panchanamas when the same were drawn up obviously at an earlier point in time and preceded the registration of the FIR. Even this discrepancy has not been explained by the prosecution at all. Furthermore, we find that the FIR has been registered by Nirmaljit Singh but he has not been examined by the prosecution and no explanation is offered in this regard as well.
All the deficiencies create serious doubts and are fatal to the prosecution case, for which reason the Appellant deserves to be acquitted of the stated offence by giving him the benefit of doubt.
The bail bond stands discharged. The appeal is allowed.
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2019 (1) TMI 2053
Validity of reopening of assessment - objections were not disposed off and the Assessing Officer proceeded to complete the assessment u/s 147 r.w.s. 143(3) - HELD THAT- Assessment has to be quashed for the reason of non-disposal of objections for the re-opening of assessment by the Assessing Officer. A similar view was taken in the case Arvind Mills Ltd 2004 (8) TMI 97 - GUJARAT HIGH COURT] and Bayer Material Science Pvt. Ltd. [2016 (3) TMI 179 - BOMBAY HIGH COURT], Thus, we quash the assessment as bad in law.
There is no whisper in the reasons recorded that the assessee has failed to truly and fully disclose all material facts required for the purpose of assessment though, the original assessment was done u/s 143(3) of the Act, and the re-opening is beyond the period of four years. For this proposition, we rely on the judgment of Haryana Acrylic Manufacturing Co. [2008 (11) TMI 2 - DELHI HIGH COURT] - Assessee appeal allowed.
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2019 (1) TMI 2052
Abuse of dominant position - alleged contravention of Section 4(2)(b)(ii) and Section 4(2)(c) of Competition Act, 2002 - basic grievance of the Informant is that by giving unfair preferential access to some trading members of its co-location services, the OP has limited and restricted the provision of services to other trading members availing the co-location service which resulted in 'denial of market access' to others to whom such unfair access was not given - HELD THAT:- The Commission observes that as per the policy of the OP as enshrined in its circular dated 31.08.2009, the co-location services are to be provided by the OP for a cost on a non-discriminatory basis. Apparently, the fee levied by the OP for providing the co-location services was uniform to all the trading members availing the services and the OP was required to provide equal benefits of the co-location services to the said trading members. However, as per the Informant, because of the alleged practices followed at OP, some trading members of the OP allegedly received preferential and unfair access to trading information, over others thereby enabling them to reap benefits viz. getting the price feeds and other data before other trading members to whom such preferential access was not provided, despite having availed co-location services.
The Commission observes that discriminatory and abusive conduct which falls foul of the provisions of the Act falls within the jurisdiction of the Commission and can be independently examined by the Commission based on cogent facts and evidence. However, the allegations against the OP are yet to be established in an appropriate proceeding and also there is not sufficient information and data before the Commission about the role attributable to the OP, in the provision of discriminatory co-location services qua certain trading members, as alleged in the Information to arrive at a prima facie view.
Thus, it may not be apposite for the Commission to delve into the allegations contained in the Information at present - The matter is ordered to be closed forthwith in terms of the provisions of Section 26(2) of the Act.
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2019 (1) TMI 2051
Higher rate of depreciation on dumpers - @ 30% OR 15% - nature of business of the assessee as transporter - Tribunal confirming the findings of the CIT [A] that the assessee is entitled to higher rate of depreciation @ 30% - As decided in HC [2018 (5) TMI 1172 - GUJARAT HIGH COURT] assessee essentially was awarded contract for providing specialized equipments and trained manpower for mining and transportation of excavated minerals on hire, the terms of the tender and the eventual contract awarded would suggest that the assessee was given the work of mining. Assessee was essentially required to provide equipments and manpower on hire. Thus no error in the view taken by the Tribunal.
HELD THAT:- The special leave petition is dismissed on the ground of delay.
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2019 (1) TMI 2050
Jurisdiction to issue SCN - Challenge to notice whereby the Respondent No.2Competent Authority directed the Petitioners to vacate the premises within 48 hours, failing which they would be evicted on 28.1.2019 - Ground of challenge in the appeal before the Additional Collector as well as in the present petition is that the Competent Authority had no jurisdiction to issue the impugned notice in view of the circular dated 3.4.2018 issued by the State of Maharashtra.
HELD THAT:- The impugned notice was issued only after the challenge to the eviction order was rejected and the order of eviction had attained finality. It is pertinent to note that the Petitioners have challenged the notice without disclosing these material facts viz. issuance of show cause notice or passing of eviction order as well as dismissal of appeal and revision by the concerned authority either in the appeal before the Collector or in the present petition.
The Petitioners have filed the petition alleging that the action proposed by impugned order/notice is contrary to the circular dated 3.4.2018.
A writ remedy being equitable one, the person invoking writ jurisdiction has to come with clean hands. In the instant case the Petitioners having approached the Court with unclean hands are not entitled for any equitable relief. The conduct of the Petitioners needs to be deprecated. The Petitioners need to be reminded that the court proceedings are sacrosanct and cannot be allowed to be polluted by unscrupulous and dishonest litigants. Such unscrupulous and dishonest litigation and attempt to abuse the legal process can only be discouraged by imposing exemplary costs.
The writ petition is dismissed with costs of Rs.2,00,000/. The costs shall be deposited in the registry of this court within a period of two months from the date of the order.
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2019 (1) TMI 2049
Quantum of compensation - Land Reference for enhancement of compensation - assessment of market value of the acquired land on the date of publication of notification under Section 4 (1) of Land Acquisition Act, 1894 - HELD THAT:- In the case at hand, no evidence has been laid by the respondents to prove that other sale instances of the land situated at village Baswantpur are available to determine the proper market value of the land. Therefore, the sale instance (Exh. X2) can be considered, though it is of a small piece of land. Only there shall be deduction in the market value of the acquired land. So also, after going through the sale deed (Exh. X2), it emerges that the plot which was the subjectmatter of this sale instance, is situated abutting 35 ft. wide road. Therefore, for this advantageous factor annexed with the land under sale instance (Exh. X2), there shall be reasonable deduction from the value of the acquired land.
On the basis of sale instance (Exh. X2) the value of the acquired land comes to Rs. 46/ per sq.ft. After deducting 40% from this amount, the fair market price of the acquired land, on the date of publication of notification under Section 4 (1) of the Act, comes to Rs. 27/ per sq.ft. Therefore, the claimant is entitled to compensation at the rate of Rs. 27/ per sq.ft. In addition to this, claimant is entitled to statutory benefits under Section 23 (1A) and 23 (2) of the Act together with interest under Section 28 of the said Act from the date of award.
The judgment and award passed by 2nd Joint Civil Judge, Senior Division, Latur is set aside - Appeal allowed in part.
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2019 (1) TMI 2048
Classification of imported goods - linear accelerator with IMRT for radiological use in the detection of cancerous turnovers - exigibility for concessional rate of duty - no basis for order by Tribunal - violation of principles of natural justice - HELD THAT:- The tribunal in its impugned order dated 28th November 2017 has merely affirmed the order of the Commissioner of (Appeals) without any analysis whatsoever of facts. This was absolutely mandatory for consideration of the case of the parties.
The appeal is admitted by condoning the delay holding that there was sufficient cause for it and allow the application for condonation of delay. The department is directed to register the appeal immediately.
Matter remanded back to the tribunal by setting aside its order dated 28th November 2017 and directing it to make a fresh pronouncement with reasons upon hearing the parties - petition disposed off by way of remand.
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2019 (1) TMI 2047
Dishonour of Cheque - leading of evidence on affidavit - whether the accused of a complaint under Section 138 of the Negotiable Instruments Act is entitled to lead his evidence on affidavit? - HELD THAT:- It is now well-recognized that Chapter XVII was introduced in the Act with a view to provide greater efficacy to the transactions undertaken on the basis of cheques and to instill confidence in the minds of the people in the commercial world with regard to the workability of the system of payments made by cheques. The transactions, wherein consideration passes through cheques cannot be lightly taken any longer by the drawers of the cheques, as the breach of such transactions as a result of the dishonour of the cheques issued by one of the parties, would result in penal consequences in certain situations. A reading of Chapter XVII of the Act also shows that the procedure prescribed has been made less cumbersome and more user friendly.
Section 138 creates the offence where the drawer fails to make payment of the amount of money covered by the cheque to the payee or the holder in due course, as the case may be, within 15 days of the receipt of the notice of dishonour, and the dishonour is for specified reasons. Section 139 raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any, debt or other liability, Section 143 makes applicable the procedure of summary trials as prescribed in the Code.
It is clear that having regard to the Scheme of the Cr.P.C., the Legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing. The evidence on behalf of the accused would include that of the accused, subject to Section 315 Cr.P.C. If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit.
The impugned order passed by the 3rd Additional Civil Judge, Himmatnagar is quashed and set-aside. The application Exh. 128 filed by the applicant - accused is hereby allowed.
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