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2015 (11) TMI 1908
Fulfillment of export obligation - Extension of LOP of 100% EOU status of an assessee for a further period of five years, by Development Commissioner, SEEPZ - It was held by High Court that 'Since the assessee could not resume its operations even after extension of the LOP on 27th April, 2009 on account of the customs authorities not renewing the private bonded warehouse licence, we direct the Development Commissioner to pass a fresh order within eight weeks from today, specifically stating therein the date on which the extended period of LOP for five years would commence and the mimumum export obligation/NFEP required to be achieved by the assessee in the said extended period of five years.'
HELD THAT:- Leave granted.
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2015 (11) TMI 1905
Seeking withdrawal of application - Prayer for directions to the Official Liquidator to apply to the concerned Commissioner, Provident Fund, for releasing provident fund dues of the applicants who claim to be the workers of the company in liquidation - HELD THAT:- As is well known, under the EPF Act, a special statutory relationship has been posited between the workmen and the Commissioner, Provident Fund, on the one hand and the company and the Commissioner, Provident Fund, on the other; and there is nothing to suggest that the Commissioner, Provident Fund, has been absolved of his duty in maintaining all relevant records of workmen’s dues towards provident fund; whilst also ensuring that all such dues entrusted to him by the company are duly disbursed in accordance with law. There is nothing to presume that this Court can absolve the Commissioner, Provident Fund, of his statutory duties in this regard and place them on a third party such as the Official Liquidator.
The invitation of claims by the Liquidator of a company can only be limited to such claims that can legitimately be made by the claimant against that company. If the claim for provident fund could not lie against the company in the first place, then there can hardly be any ground for the same to be legitimately paid by the Official Liquidator. Of course, it goes without saying that under the relevant statute, it would always be open to the applicants to move appropriate claims before the Commissioner, Provident Fund, who would thereafter be obliged to compute the same; and further, in case the Commissioner, Provident Fund, concludes that there are some dues payable to him by the company in this behalf, it would be for him to move an appropriate claim before the Official Liquidator in his capacity as a trustee of provident fund dues.
The application is dismissed as withdrawn.
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2015 (11) TMI 1904
Unexplained cash credit - assessee was summoned u/s 131 and sworn statement was recorded on 28/12/2011 - assessee was not able to explain the above cash credit and agreed to submit the same seeking more time - HELD THAT:- AO totally ignored the fact that assessee also withdraws cash regularly. Closing balances in the bank accounts reaching the minimum level shows that the assessee utilizes the same for running business.
The statutes allows and gives benefits to the small business people like the assessee to estimate their income so that they fulfill the statutory obligation of taxation and they also enjoy the benefits like, they don’t have to maintain books of account as stipulated u/s 44AA, they are not subject to payment of advance tax under the provisions of Chapter – XVII – C.
As far as the cash deposits in the bank are concerned, we have noticed that the assessee has gross receipts of Rs. 35,52,000/- from the construction business, which was not doubted by the tax authorities. In this line of business, contractors do get advances to execute the works undertaken by them. AO/CIT(A) had taken the cash deficit method to arrive the undisclosed income. This is not the right method. They should have investigated whether assessee retains the deposits for long period as unutilized. On analyzing the bank statement, we find that following the deposits, assessee also made several withdrawals both by cheque as well as by cash. Even to the extent of Rs. 15 lakhs in a day. In the civil business contract, they have to make payment for labour and materials invariably by cash.
Cash deposit as per peak deficit cash balance stood as on 09/03/09 was Rs. 28,05,679/-. It reduces to Rs. 8,80,000/- by 20/03/09. Subsequently, there was cash withdrawals as well. Tax authorities are going by one side of accounting and completely overlooking the other side. Considering the gross receipts of the business and peak deficit cash balance, we reject the method adopt by the AO and consider that the cash deposits were made only for the business and further utilized only for the business.
The first condition is that assessee should maintain the books of account. In the present, case assessee estimates the income and hence, there is no need to maintain books of account. It fails in the first condition itself. The bank statement is not the books of account. Not necessarily the gross receipts alone should be credited in the bank passbook, in the business, they also get advances for future contracts and assessee gets the benefit of doubt because of the small scale business and estimation of profit u/s 44AD.
We set aside the order of CIT(A) and allow the appeal of assessee.
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2015 (11) TMI 1903
Challenge to land acquisition proceedings under the Land Acquisition Act - challenge to Notification under Section 4 and 6 of the Land Acquisition Act, 1894 - HELD THAT:- The manner of payment of compensation is contemplated under Section 31 of the Old Act and eventuality any receipt of compensation warrants the Collector to deposit the amount with the Court where the reference can be subjected. Both these aforesaid provisions, particularly the provisions of Section 24 has been interpreted by the Apex Court in the case of Pune Municipal Corporation & another [2014 (1) TMI 1643 - SUPREME COURT] and after considering various aspects of the matter, held that if the physical possession of the land has not been taken by the acquisition authority then the award has been passed and if compensation has not been paid to the landowners or has not been deposited by the appropriate forum then the proceedings initiated under the Old Act is deemed to have been lapsed.
Similar is the view taken by the Apex Court in the case of SHARMA AGRO INDUSTRIES VERSUS STATE OF HARYANA [2014 (11) TMI 1290 - SUPREME COURT], wherein also the principles laid down in the case of Pune Municipal Corporation etc., has been considered and principle reiterated. It is, therefore, clear from these judgments and interpretation of Section 24 of the New Act and implication of Section 31 of the Act of 1894 that if after passing of the award and five years prior to coming into force of New Act, amount is not paid in accordance to the requirement of law, the entire proceedings lapsed. If aforesaid principle is applied in the present case, it is found that award in question was passed on 27.11.1992 in W.A.Nos.799/06, 514/06 and 772/06 and in W.A. No.250/08 and W.A. No.323/08 the award for acquired lands was passed on 16/04/2004 and from the averments made by the Indore Development Authority in their reply filed, it is only indicated that the amount of compensation has been deposited with the competent authority and in view of the interim relief granted by the learned writ court as well as by the Division Bench of the Appellate Court, the possession has not been taken over from the present appellants.
In this case, even though the reply filed by the Indore Development Authority indicates that neither possession is taken over by them nor compensation has been paid to the beneficiaries, in accordance with the requirement of Section 31 of the Old Act. As held by the Apex Court, mere deposit of the amount in the Government Treasury or with the Revenue Department is not sufficient, it has to be paid to the beneficiaries or deposit in the Court where reference under Section 18 is normally filed - the documents overwhelming available on record to demonstrate that inspite of award having been more than five years prior to coming into force of the New Act, the award of compensation has not been paid to the beneficiaries as required under law nor possession of the land in question has been taken over from the owners and, therefore, in the light of legal principles laid down by the Apex Court as referred, entire proceedings lapsed.
Appeal disposed off.
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2015 (11) TMI 1902
Suit for specific performance - application under Order 1 Rule 10 CPC made for impleadment of defendants - individual right over the property or not - HELD THAT:- In the facts of the present case, after dismissal of probate petition on 01.05.2010, right of Ranjit Singh-petitioner in the property owned by Swaran Singh is no longer in dispute. If he is made party to the suit, it will not enlarge the scope of the suit as there is no dispute with regard to his share in the property left by Swaran Singh after dismissal of probate petition. Since after being impleaded as party on an earlier application, he has filed his written statement and has led evidence, it would not amount to enlarging the scope of dispute.
Moreover, as per the judgments passed by this Court in Amrik Singh [2008 (12) TMI 835 - PUNJAB AND HARYANA HIGH COURT] and Smt. Sarita Devi Jain's case [2008 (12) TMI 836 - PUNJAB AND HARYANA HIGH COURT], it has been held that in a suit for specific performance, the vendor can only sell to the extent of his share in favour of vendee. He cannot sell the property/share of other co-sharers. With the dismissal of probate petition, the dispute between defendant Nos. 1 and 2 and the present petition has come to rest and in order to avoid multiplicity of litigation, the present petitioner should have been impleaded as party to the suit.
Reference, at this stage, can be made to the verdict given by the Hon'ble Supreme Court in Mumbai International Airport's case [2010 (7) TMI 1159 - SUPREME COURT], wherein it has been observed If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be nonexistent. The observations in Kasturi [2005 (4) TMI 635 - SUPREME COURT] and Sumtibai [2007 (10) TMI 653 - SUPREME COURT] are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.
In view of the law laid down by the Hon'ble Supreme Court and this Court in Mumbai International Airport Pvt. Ltd., Amrik Singh and Smt. Sarita Devi Man's case , this Court deems it fit that the petitioner is a necessary party to the suit and the application filed by him under Order 1 Rule 10 CPC should have been allowed.
The impugned order is set aside - Application allowed.
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2015 (11) TMI 1901
Mortgage of property - Requirement to discharge the debt - neither the petitioner nor his wife was impleaded as a party - HELD THAT:- Notice of motion be issued to the respondents, returnable on 09.12.2015. Dasti process as well.
The operation of the impugned order, qua the petitioners’ residential unit, shall remain stayed till the next date of hearing - To be listed as per Roster on the next date.
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2015 (11) TMI 1900
Grant of statutory bail under Section 167(2) of the Code of Criminal Procedure read with Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - manufacturing and smuggling narcotic drugs as well as making illegal supply of the 'controlled substances' like pseudoephedrine within and outside India - recovery of 6kg 780gm pseudoephedrine and 2kg diphenoxylage powder from possession - HELD THAT:- It requires no elaborate discussion that having regard to the legislative object behind enactment of Section 167(2) CrPC is to ensure that an accused person must not be in any circumstances, detained beyond ninety days pending investigation of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
As regard to a person accused of an offence punishable under Sections 19, 24 or 27-A or for offences involving 'commercial quantity', in view of Section 36-A(4) of the NDPS Act, the maximum detention period pending investigation can be extended to 180 days.
The petitioner appears to be true while alleging that the investigating agency did not show the desired promptness in securing the FSL report of the samples sent on 16th and 23rd June, 2014 through special messenger. But then it cannot be overlooked that the Forensic Science Laboratory is not under the administrative control of Police Department and the delay in all probabilities occurred due to long queue of pending samples. The investigating agency therefore cannot be blamed entirely. Unfortunately, the learned Special Court has passed a totally casual order without elaborating the reasons which prompted it to grant extension to the prosecution to complete the investigation.
In view of the fact that (i) the Additional Public Prosecutor was competent to apply for extension of time; (ii) such an application was moved before expiry of one hundred and eighty days' period; (iii) the extension was sought before the petitioner applied for his bail under Section 167(2) CrPC and (iv) the fact that no charge-sheet could be filed for want of FSL report as it would have led to rejection of the charge-sheet itself, the petitioner (Varinder Sandhu) is not entitled to the benefit of Section 167(2) CrPC. His revision petition is accordingly dismissed.
So far as the petitioner's (Narinder Kumar Goyal) claim to release him on regular bail under Section 439 CrPC is concerned, it is true that he has been acquitted in some of the cases registered under the NDPS Act. However, having regard to the facts that (i) the petitioner has been found involved repeatedly in NDPS cases; (ii) he is currently facing trial along with Jagdish Singh @ Bhola in yet another case under NDPS Act registered by NCB Mumbai; (iii) he is alleged to be a close associate of the kingpin of drug mafia, coupled with the allegations attributed to him in the instant case, we are satisfied that none of the ingredients of Section 37(1)(b)(ii) of the NDPS Act can be said to have been satisfied. It is not expedient or desirable at all to release the petitioner on bail at this stage.
Bail application dismissed.
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2015 (11) TMI 1899
Murder - Refusal of the High Court to uphold the conviction of Daud Khan for an offence punishable Under Section 302 of the Indian Penal Code - FSL report falsifies the version of the eye witnesses - HELD THAT:- If the facts of the case are looked at individually and randomly, they might create a doubt. However, if they are considered collectively, there is no room for doubt. The facts collectively are: (i) Nand Singh was shot with a gun. (ii) The bullet extracted from the body of Nand Singh could have been fired from that gun, or to put it negatively, it cannot be said that the extracted bullet could not have been fired from the recovered gun. Nobody questioned this. (iii) The gun-shot was fired from a close distance, but there was no blackening of Nand Singh's skin possibly due to his apparel. Nobody questioned this. (iv) Nand Singh's death was not immediate and he could have traversed a distance of about 70 (seventy) feet despite being shot. Nobody questioned this. (v) The medical experts testified that spillage of blood from the entry wound is not inevitable and so it is possible that Nand Singh's blood was not found between the place of the incident and the place where he collapsed. The blood was, however, found where Nand Singh collapsed. (vi) There were five eye witnesses to the incident of shooting and they gave consistent statements and identified Daud Khan as the person who shot Nand Singh. None of these findings and conclusions are perverse. On the contrary, they have been accepted by the Trial Court and the High Court.
There are no reason to take a different view.
There are no hesitation in upholding the view taken by the High Court with regard to the offence committed by Daud Khan and his conviction for that offence - there are no substance in the appeal filed by the State and find no reason to reverse the conclusions arrived at by the High Court with regard to the offence committed by Daud Khan.
Appeal dismissed.
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2015 (11) TMI 1898
Expenditure incurred on advertisement and sales promotion - Tribunal deleting the disallowance of 81.25% of the expenditure incurred as relying on of M/s. Star India Pvt. Ltd [2009 (3) TMI 990 - BOMBAY HIGH COURT] - as per revenue main liability to incur the said expenditure lay with the holding company of the assessee and that SLP filed by the Department has been admitted by the Hon'ble Supreme Court against the decision of this Court in the case of M/s. Star India (P) Ltd. relied on by the Tribunal
HELD THAT:- Revenue very fairly states that although the question as formulated proceeds on the basis the SLP filed by the Revenue against order of this Court in Star India Pvt. Ltd. (supra) has been admitted, in fact, it is not so. The Apex Court has only issued a notice before admission. In fact, the SLP is awaiting admission.
Be that as it may, no fault can be found with the impugned order of the Tribunal in having allowed the Respondent Assessee's appeal following the decision of this Court in Star India Pvt. Ltd. (supra). No distinguishing feature in the present facts from that existing in Star India Pvt. Ltd. (supra) has been pointed out to us which would warrant our taking a different view in the present appeal. No substantial question of law arise
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2015 (11) TMI 1897
Depreciation at 60% on telecom/computer equipment - 'whether telecom/computer equipment' cannot be classified as 'computer including computer software' - HELD THAT:- This issue is covered in respondent assessee's own case for the asst. year 2008-09 [2014 (9) TMI 45 - ITAT BANGALORE] held that a computer system would encompass a collection of devices including input and output support devices that perform functions including, but not limited to, logic, arithmetic, data storage and retrieval communication and control. CIT(A) has not erred in allowing the depreciation at 60% on telecom/computer equipment
Disallowance of deduction u/s 10A - assessee is not engaged in manufacturing and export of any article or thing or computer software as required for the purpose of computation of deduction u/s 10A - CIT(A) deleted addition - HELD THAT:- The issue is covered by the earlier order of this Hon'ble Tribunal in the assessee's own case for the assessment year 2008-09 [2014 (9) TMI 45 - ITAT BANGALORE] wherein as seen that the assessee satisfies the twin conditions of export of computer software and repatriation of exports proceeds in convertible foreign exchange as prescribed in section 10A of the Act. We, therefore, concur with the finding of the learned CIT (A) that the assessee is entitled for deduction u/s.10A.
Disallowance of deduction u/s 80JJAA - assessee is not involved in telecom services and such services cannot be termed as IT enabled services - CIT(A) deleted addition - HELD THAT:- As decided in assessee own case as the facts of the assessee in the case on hand are similar to the facts of the above cited case of Texas Instruments India P. Ltd. [2006 (12) TMI 405 - ITAT BANGALORE] deduction u/s.80JJAA of the Act is allowed on the basis of the following facts :-
i) The business of the assessee falls within the definition of the term "industrial undertaking"; ii) The assessee is engaged in providing Information Technology enabled services (computer software); iii) The assessee has claimed deduction of only those payments made to 'workmen' who are not employed in supervisory capacity.
In view of the above, we uphold the decision of the learned CIT (A) in allowing the assessee deduction u/s.80JJAA of the Act. Accordingly, the ground raised at S.No.3 by revenue is dismissed."
Disallowance of deduction u/s 35D - expenditure incurred on stamp duty increases the authorized share capital and is not an item of expenditure expressly allowable u/s 35D - CIT(A) deleted addition - HELD THAT:- This ground of appeal is restored to the file of AO with a direction to verify whether as a result of this expenditure, the share capital is increased or not. In case share capital is increased to treat the same as capital expenditure and if not, the share capital is increased to treat as Revenue expenditure.
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2015 (11) TMI 1896
Denial of right of defence or not - application of the accused rejected for getting exhibited the compact disc - HELD THAT:- In R.M. MALKANI VERSUS STATE OF MAHARASHTRA [1972 (9) TMI 150 - SUPREME COURT], this Court has observed that tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.
In view of the definition of 'document' in Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document Under Sub-section (1) to Section 294 Code of Criminal Procedure personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 Code of Criminal Procedure.
The courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the Forensic Science Laboratory, by the defence. The Appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.
The orders passed by the courts below are set aside - Appeal allowed.
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2015 (11) TMI 1895
TP Adjustment - working capital adjustment - as per Revenue was that no such working capital adjustment was claimed before the TPO and CIT(A) allowed the same without any verification - HELD THAT:- As order was passed by the TPO proposing an adjustment which was adopted by the AO while passing the order u/s 143(3) r.w.s.144C(4) - case of the assessee was that since the assessee was providing services to its associate enterprises, then it was working on lower prices for its services. On the other hand, if services were provided wherein the customers pays on later date, then the working capital adjustment is to be allowed to a company, which is providing the services on cash basis.
We find that similar issue of allowing working capital adjustment to the assessee has been held in favour of the assessee by series of decision on various in DCIT Vs. Emptoris Technologies India Pvt. Ltd. [2015 (10) TMI 738 - ITAT PUNE] - CIT(A) on the other hand had placed reliance on the decision in Vedaris Technologies Pvt. Ltd. [2010 (3) TMI 898 - ITAT DELHI] and the OECD Guidelines.
We find merit in the order of CIT(A) in directing the AO to grant working capital adjustment to the assessee on the basis of average credit/debit period for the year and commercial rate of interest. We find no merit in the grounds of appeal raised by the Revenue and the same are dismissed.
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2015 (11) TMI 1894
Unexplained investment in Gold and diamond jewelleries - jewellery found during search belonging to the assessee was less than 500 gms - HELD THAT:- Considering Assessee status and the normal practice in Hindu families as such, and as per the CBDT Circular No.1916 dated 11.05.1994 such jewellery cannot be treated as unexplained jewellery and added to the income of the assessee. See Ratanlal Vyaparilal Jain [2010 (7) TMI 769 - GUJARAT HIGH COURT] deleted the whole addition on the ground that the jewellery held by each of the family members was below the limits specified in the said circular.
Although the circular had been issued for the purpose of non-seizure of jewellery during the course of search, the basis for the same recognizes customs prevailing in Hindu society - unless the Revenue shows anything to the contrary, it can safely be presumed that the source to the extent of the jewellery stated in the circular stands explained. Thus, the approach adopted in considering the extent of jewellery specified under the said circular to be a reasonable quantity, cannot be faulted with. Decided in favour of assessee.
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2015 (11) TMI 1893
Nature of expenses - software expenses - revenue or capital expenses - assessee is in the business of media planning, executing and buying in the field of advertising and marketing and other related services - HELD THAT:- We find that these software license costs which has been paid by the assessee is for using of software for its day-to-day business requirements, as stated by the assessee before the AO. These softwares keep are ever changing from time to time and did not have a useful life for very long period and at one point of time it becomes obsolete. Thus, it cannot be held that they are capital in nature on account of enduring benefit.
As decided in Asahi India Safety Glass Ltd [2011 (11) TMI 2 - DELHI HIGH COURT] and Raychem RPG Ltd, [2011 (7) TMI 953 - BOMBAY HIGH COURT] have held that, these softwares do not form part of the profit making apparatus and merely facilitate the assessee’s trading operation or enabled the management to conduct the assessee’s business more efficiently and more profitable. Thus, they have to be treated as revenue expenditure.
TDS u/s 195 - disallowance being the provision made for the expenditure to be reimbursed in connection with the software allocation cost by the foreign AE/group company, “Mindshare Asia Pacific” - AO observed that, such a payment on account of reimbursement of software cost amounts to “royalty” within the meaning of Explanation to section 9(1)(vi) and TDS should have been deducted by the assessee while making the payment - assessee contended that it is merely reimbursement of cost of software expenses incurred by the Group company which has been allotted to the assessee and is not a “Royalty” within the meaning of Explanation 2 to Section 9(1)(vi) - HELD THAT:- These softwares have not been developed by the Parent Company or any AE, but have been centrally procured so that same can be allotted and given to the various Group entities in order to ensure proper functioning; proper coordination and quality.
Whatever cost had been incurred for procuring the software from third parties has been allocated among the group entities on the proportionate basis. Such an allocation has not been disputed except for holding that the reimbursement of cost paid by the assessee to the Parent/ AE Company amounts to “Royalty”. Such a reimbursement of cost cannot be held to be for any transfer of any right or giving any right to use within the ambit and scope of any of the definition as given in Explanation 2 to section 9(1)(vi).
Once such a payment does not fall within any of the parameters set out in Explanation 2, then it cannot be held that, it is in the nature of “royalty”. ‘Mindshare Asia Pacific’ is procuring the software from somewhere else and loading the cost on proportionate basis to various group entities without any mark-up hence on reimbursement of such a cost, assessee was not liable to deduct TDS on account of “royalty” - Decided in favour of assessee.
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2015 (11) TMI 1892
Admissibility of appeal - rebate claim - time limitation - HELD THAT:- The appeal raises substantial question of law. Present appeal is assessee’s appeal. It is admitted on the substantial questions of law - services waived on behalf of respondent.
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2015 (11) TMI 1891
The Bombay High Court heard appeals regarding telecom services provided to roamers in India. The appeals raised substantial questions of law related to export of service, rebate claim of service tax, application of a previous case's ratio, and the Tribunal's decision on disposal of the appeal without notice. The assessee waived service in all appeals.
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2015 (11) TMI 1890
Characterization of receipts - Membership contribution received from its new members for life time in lieu of offering effluent disposal facility - AO taxed the entire sum in the impugned assessment year of receipt by following his line of action adopted in assessment year 2001-02, 2004-05 to 2008-09 thereby rejecting assessee’s accounting treatment treating the same as a capital receipt on the ground that it was yet to perform its part of obligation - HELD THAT:- It emanates from the case file that a co-ordinate bench of a tribunal in similar cross appeals [2015 (7) TMI 932 - ITAT AHMEDABAD for assessment year 2008-09 decided on 24-07-2015 remits back the issue of assessment of assessee’s above stated capital receipt contribution back to the assessing authority for reworking as per earlier order in assessment year 2001-02.
It further observes that the receipts received during the relevant accounting period are to be spread over for a period of five years instead of assessing the same in one assessment year. The second issue of enhancement stands decided against assessee. We follow suit in these facts and want of distinction being pointed out in the above stated decision. The assessee’s first ground accordingly is remitted back to Assessing Officer. Second substantive ground fail .
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2015 (11) TMI 1889
Seeking impunity from prosecution - public servants within the meaning of Section 197 of Cr.P.C - can be removed without the orders of the Hon'ble President of India or not - HELD THAT;- The complainant is a dismissed employee of BEML. The Division Bench of this Court headed by the then Hon'ble Chief Justice, while dismissing the writ petition filed against BEML of which complainant had represented the petitioners as his counsel observed that litigation is purely pursued out of personal motives.
The Apex Court in State of Haryana and Others v. Bhajan Lal and Others [1990 (11) TMI 386 - SUPREME COURT], listed 7 categories of cases by way of illustrations wherein power of the High Court under Article 226 of Constitution of India/482 of Cr.P.C. can be exercised either to prevent abuse of process of the Court or otherwise to secure the ends of justice - The case on hand fits in both 1st category and also 7th category in not making out prima facie even after accepting the facts alleged in its entirety and also for being malicious prosecution with personal motive. Even if the petitioners have violated the provisions under Section 205 of the Act of 1956 then also offence under Section 447 of the Act of 2013, cannot be brought home for the sole reason, that fraud is not to be seen from the alleged act.
The learned Magistrate while taking cognizance of the matter except epitomizing the complaint averments has not given independent application of his mind. As per Maksud Saiyed [2007 (9) TMI 400 - SUPREME COURT], the Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
Thus, it is fairly well settled that this Court under the extraordinary jurisdiction under Section 482 of Cr.P.C. quashing on going investigations/complaint or other proceedings to prevent abuse of process of law - petition allowed.
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2015 (11) TMI 1888
Absorption of retrenched employees of Government or Public Corporations in Government Service - Calculation of the services of the absorbed employees rendered in the erstwhile department for the purpose of pensionary benefits - HELD THAT:- The provisions of Section 3 of the Rescission of Rules Act 2009 have obviously protected the interest of retrenched employees, who had not absorbed before 8 April, 2003 under the provisions of the Absorption Rules - Since Rescission Rules 2003 protected the benefit of pay granted to an absorbed retrenched employee prior to the date of commencement of Rescission Rules 2003 even after enforcement of Rescission Rules Act 2009, there is no reason to withdraw it. More so, the last salary drawn by the retrenched employees was also protected by means of Government Order dated 11 November 1993.
The matter of protection of pay scale as last drawn by the retrenched employees was considered by the Hon'ble Supreme Court in the case of Chittaranjan Sharma v. State of Himachal Pradesh, reported in [1996 (9) TMI 663 - SUPREME COURT], whereby the Supreme Court directed to maintain the pay scales of the absorbed employees in the event of their retrenchment. This has been followed by the learned Single Judge. Therefore, the findings given by the learned Single Judge as well as the directions issued to the appellants to give the consequential benefits to the respondents do not deserve to be interfered with.
Calculation of the services of the absorbed employees rendered in the erstwhile department for the purpose of pensionary benefits - HELD THAT:- The original petitioner has failed to produce any such rule, which would entitle him to claim the inclusion of his services rendered in the erstwhile undertaking for the purpose of pensionary benefits. The petitioner was retrenched from service of Auto Tractors Ltd., Pratapgarh. He was absorbed in the State Government service under the Absorption Rules 1991 in accordance with the terms and conditions provided therein. Absorption Rules 1991 do not contain any such provision as to calculate the period of service of the retrenched employee rendered in the erstwhile department for the purpose of pensionary benefits. Therefore, in the absence of a specific provision in the Rules, no such benefit can be provided by the Court.
Appeal disposed off.
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2015 (11) TMI 1887
Addition on account of trade creditors - Addition u/s 68 - HELD THAT:- All the parties have confirmed these purchase transactions but the AO wanted their creditworthiness. These are simply trade creditors and all of them supplied machinery to the assessee. Supply of machinery is not in doubt. These are not unsecured loans. Once this is the position, the AO cannot invoke the provisions of section 68 - All the parties have confirmed having made sales to assessee in response to notice u/s. 133(6) - In the case of trade creditors, at the best, first of all, the AO has to doubt the purchases and sales and without going into these facts, the AO applied the provisions of section 68 of the Act in the absence of creditworthiness of these parties and made addition.
No reason to sustain the same, as the very basis is not doubted by the AO, and assessee has discharged its onus by filing all the details before the AO. Accordingly, we confirm the order of CIT(A) and this issue of revenue’s appeal is dismissed.
Addition of unsecured loans - HELD THAT:- As both the creditors have confirmed the transaction and also filed details of their assessment particulars and these credits are given out of their bank account but the AO did not carry out any exercise whatsoever to verify these unsecured loans as is clearly evidenced from the assessment order. Even CIT(A)’s finding is that AO has not conducted any further enquiry despite the fact that assessee has discharged its onus by filling the details. Once this is the position, we have no hesitation in confirming the order of CIT(A) and this issue of revenue’s appeal is dismissed.
Addition on account of purchase of spare parts - HELD THAT:- From the order of CIT(A), we find that complete details were available before him and on the basis of the same he has allowed the claim of the assessee. Even the sales arising out of the same purchases have not been doubted by the AO. Here in the present case only exception is M/s. Vishal Enterprises wherein it has not verified the veracity of the transaction. Hence, qua this only, we set aside the matter to the file of the AO so that assessee can prove the veracity of the transaction and for the balance purchases, we confirm the order of CIT(A) and this issue of revenue’s appeal is partly allowed.
Disproportionate payment of expenses made to persons specified u/s. 40A(2)(b) - HELD THAT:- AO has just made ad-hoc disallowance without going into the expenses or the reasonableness of the payment as mentioned in the provision of section 40A(2)(b) - Assessee has produced complete supporting bills and vouchers to prove the genuineness of the claim of expenditure which is not doubted but he has made ad hoc disallowance for the reason that these payments are made to the persons specified u/s. 40A(2)(b) of the Act for invocation of provision of section 40A(2)(b) of the Act. First of all, there should be a finding recorded by the AO that the expenses are unreasonable and how? But from the order of the AO, it is not coming out that what is the basis for disallowance. Just simply ad hoc disallowance cannot be made. Accordingly, we confirm the order of CIT(A) deleting the addition. This issue of revenue’s appeal is dismissed.
TDS u/s 194C - disallowance on account of truck hire charges for non-deduction of TDS - HELD THAT:- From the decision of Vipin Mehta [2011 (5) TMI 503 - ITAT MUMBAI] and the fact in this case is that the assessee has received Form 15- I from the respective payees to whom truck hire charges were paid, the AO has no authority to make any disallowance for non deduction of TDS u/s 40(a)(ia) of the Act. Accordingly this issue of revenue’s appeal is dismissed.
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