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2016 (5) TMI 1628
Addition u/s 68 - unsecured loan taken - onus to prove - several bank accounts and numerous entries have routed from cash deposit to ultimate beneficiaries - Penalty u/s 271(1)(C) initiated on this issue - HELD THAT:- Assessee had taken the loan from M/s. K.K. Patel Finance Limited. The assessee has submitted the copy of loan account of the creditor giving complete details of PAN nos. and copy of acknowledgement. We found that the assessee has proved the identity of the creditor by filing the name and addresses of the creditor and PAN details.
The loan was obtained from Limited Companies and that has allotted PAN and it was registered with the Registrar of Companies and filed its annual return and income tax returns, which proves the identity of the creditor. The assessee has also submitted the copy of accounts of the creditor in assessee’s books.
The assessee has also produced the confirmation of account by M/s. K.K. Patel Finance Limited, for repayment of loan. The assessee has also filed the copy of account from the date of acceptance of the loan up to the date of repayment of the loan, confirmation and copy of the bank account. Copies of acknowledgement of creditors were furnished.
The assessee has filed the copy of bank account of the creditor, wherein it is proved that it had sufficient balance of Rs. 34 lakhs and he has given loan on 01.09.2006, which proves the creditworthiness of the transaction.
Section 68 requires that there has to be credit in the books maintained by the assessee. Such creditor has put a sum during the year and the assessee offers no explanation about the nature and source of such credit or explanation offered by the assessee not in the opinion of assessing authorities satisfactorily, then sum so credited may be charged to tax as income of the assessee’s previous year.
As per Section 68 of the Act, once there is credit in the books maintained by the assessee, the primary onus is on the assessee to offer explanation as to the nature and source of the credit. When the assessee produced the identity of the creditor, the genuineness of the transaction was established.
The primary onus, which rested with the assessee to discharge, but the Revenue does not satisfy with the source of the fund in the hands of the assessee. It was the Revenue to take the appropriate action. The burden of proof in loan transaction, it is well settled law that while considering the question whether the alleged loan taken by the assessee was genuine transaction, the initial onus always upon the assessee and if no explanation is given or explanation given by the assessee is not satisfactory, the AO can disbelieve the alleged transaction of a loan, but the Law is equally settled that if the initial burden is discharged by producing the sufficient material in support of loan transaction, the onus is upon the AO and after verification, he can call for further explanation from the assessee and in the process, the onus may again shift upon the Assessee.
AO failed to verify the same, the onus is discharged and no addition can be made. In this case, the assessee has proved the identity of the creditor. The assessee has produced books of accounts, confirmation of party, copy of the bank account of the creditor, proved the genuineness of the transaction. The assessee had taken loan and creditor has sufficient funds prior to giving the loan of Rs. 5 lakhs, that proves the creditworthiness. Therefore, in our opinion, the ld. CIT(A) is not justified in his action. Assessee appeal allowed.
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2016 (5) TMI 1627
TP Adjustment - MAP on remaining 4% transactions of the assessee, as well viz. transactions pertaining to 'non-US' entities - HELD THAT:- It has been brought to our notice that margin of the assessee @ 16.63% has been found to be at Arm's Length Price and no adjustment has been suggested under MAP. It is further noted by us that the TPO/AO have treated all of the transactions as 'one', by combining the total turnover of the assessee, whether related to US based entities or others. Even before us, no distinction has been made out by the CIT-DR between the 'turnover' made by the assessee with US based entities and others. In view of these facts and respectfully following orders of earlier years, we direct the AO/TPO to apply the order of MAP on the remaining 4.02% transactions also and delete the addition.
Unabsorbed depreciation emanated from exempt unit and accordingly exemption u/s. 10A should be computed after setting off the amount of unabsorbed deprecation - HELD THAT:-As respectfully following the order of the earlier years we direct the AO to allow the deduction u/s. 10A before setting off of the brought forward unabsorbed depreciation.
Treating the interest income on deposits with banks and other receipts as chargeable to income-tax under the head 'Income from other Sources' - assessee's claim that such interest income and other receipts are chargeable to tax under the head "Profit and Gains of Business or Profession" and eligible for deduction u/s 10A of the Act - HELD THAT:- As relying on assessee own case or A.Ys. 2006-07 & 2007-08 [2015 (12) TMI 296 - ITAT MUMBAI] this issue is decided in favour of the assessee and interest income is directed to be held as assessable under the head income from business.
Computation of deduction of 10A - HELD THAT:- A careful reading of provisions of section 10A suggest that nothing has been excluded from the definition of 'profit of the business of the undertaking" and deduction has been stipulated to be allowable on the amount of the profits of the business of the undertaking in the proportion of the export turnover to total turnover of the business carried on by the undertaking.
If an interpretation is adopted, as is suggested by the assessee, that no receipt of the nature of interest shall form part of 'total turnover', then clearly it will not only be irrational but apparently such an interpretation shall given rise to absurd results, by allowing the benefit of section 10A even in those receipts which were not intended to be covered u/s. 10A by the legislature.
Provision of section 10A does not permit the assessee to avail 100% deduction on the amount of interest income earned by it on deposits with bank and other sources in India. Thus, we direct the AO to grant the benefit of deduction u/s. 10A on proportionate basis by including the amount of interest in total turnover, as provided by Sub-section (4) of section 10A. This ground may be treated as partly allowed.
Restricting the amount of tax deducted at source - Assessee requested for appropriate directions to the AO for verification of facts and granting the credit accordingly - HELD THAT:- We find it appropriate to send this issue back to the file of the AO and direct him to give adequate opportunity to the assessee to submit details and requisite documents, and after verification of requisite facts an appropriate amount of credit allowable to the assessee should be granted. This ground may be treated as partly allowed for statistical purposes.
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2016 (5) TMI 1626
Reopening of assessment u/s 147 - provision for warranty made by the petitioner was not made on a scientific basis and reliance was placed upon the provisions made in the earlier assessment years - HELD THAT:- The petitioner provided information to the respondents by their communication dated 21st January, 2014. Some of the details sought for by the AO were not responded to by the assessee. Notwithstanding the above, the AO on examination of the record appears to have been satisfied with the claim of provision for warranty made by the petitioner. This was for the reason that he did not reduce the provision made for warranty nor call upon the petitioner to submit other information which he had sought for and not provided by the petitioner. Therefore this would indicate that the Assessing Officer was satisfied with the information provided by the petitioner in its response to the communication dated 3rd December, 2013. In the above view, raising the same issue in support of the impugned notice prima facie, appears to be a case of change of opinion.
In the present case, a query with regard to the very issue which the reasons recorded in support of the impugned notice advert to had been a subject of enquiry by the AO in regular assessment proceeding.
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2016 (5) TMI 1625
Whether the Commission could, without recording a finding that All Kerala Chemists and Druggists Association, of which the appellants are the President and the Secretary respectively with effect from 11.08.2013, has contravened the provisions of the Competition Act, 2002? - HELD THAT:- In the present case, investigation into the role of the persons incharge of and responsible to Respondent No. 5 for the conduct of its affairs was initiated by the Commission at the threshold i.e. while passing order dated 29.09.2014 under Section 26(1) of the Act and Jt. DG returned a finding in paragraph 8 of his report that the appellants are equally complicit in the practices being carried on and the decisions being taken by Respondent No. 5, which were found to be contrary to the provisions of the Act. This exercise was ex facie contrary to the plain language of Section 48 of the Act. That apart, in the absence of a determination by the Commission that Respondent No. 5 had acted in contravention of Section 3, the finding recorded by the Jt. DG in paragraph 8.2.2 of his report about the alleged complicity of the appellants in the anti-competitive practices being carried on and the decisions taken by Respondent No. 5 could not have been made basis for passing an order under Section 27(b) or 27(g) and on that ground alone, the penalty imposed on Appellant No. 1 and the direction contained in the second part of paragraph 14 of the impugned order are liable to be set aside.
The record produced before the Tribunal does not show that the Commission had, at any point of time, informed the appellants that it was intending to impose penalty on either of them under Clause (b) of Section 27 of the Act. Therefore, they did not get any opportunity to show that paragraph 5 of the order passed by the Commission under Section 26(1) and the conclusion recorded by the Jt. DG in paragraph 8.2.2 of his report were ultravires the provisions of the Act and also represent their cause against the proposed penalty. Thus, there is no escape from the conclusion that the penalty imposed on Appellant No. 1 is vitiated due to violation of the principles of natural justice.
Whether the direction given by the Commission to Respondent No. 5 not to associate the appellants with its affairs including administration, management or governance for a period of two years is legally sustainable? - HELD THAT:- Clause (g) of Section 27, which gives power to the Commission to pass such other orders or issue such other directions as it may deem fit has to be interpreted by applying the rule of contextual interpretation and keeping in view the objects sought to be achieved by enactment of the Act, namely, to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect interest of consumers and to ensure freedom of trade carried on by other participants in the markets in India and for matters connected therewith or incidental thereto. The powers vested in the Commission under Clauses (a), (b), (d) and (e) of Section 27 are in consonance with one of the objectives of the Act i.e. to prevent practices having adverse effect on competition - in exercise of power vested in it under Section 27(g), the Commission cannot make an order or issue a direction which would directly or indirectly impinge upon the provisions of other statutes. The election to the offices of the President and the Secretary of Respondent No. 5 and such like bodies are governed by the provisions contained in the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, rules, regulations and by-laws made thereunder.
The order passed by the Tribunal dismissing the appeal filed by AKCDA (Appeal No. 17 of 2016) has no bearing on the present case because the only issue raised by the appellant in that case was whether the Commission was justified in holding it guilty of having acted in contravention of Section 3(3)(b) read with Section 3(1) of the Act and the same was answered in affirmative. The question whether the Commission could penalise the appellants by invoking Section 27(g) and that too without giving them action-oriented notice and opportunity of hearing was neither raised nor considered by the Tribunal. Therefore, dismissal of the appeal filed by AKCDA cannot be relied upon for denying relief to the appellants.
Conclusion - The deeming provisions contained in Section 48 can be invoked only after it is found that the company has contravened the provisions of the Act. The CCI must comply with principles of natural justice and cannot exercise powers that interfere with statutory rights under other laws.
The impugned order is set aside in so far as it relates to the imposition of penalty on Appellant No. 1 @ 10% of the average of his income of preceding three financial years - appeal allowed.
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2016 (5) TMI 1624
Suppression of facts by the Informant makes the present proceedings infructuous - penalty under section 45(1)(b) of the Competition Act, 2002 - contravention of any of the provisions of section 3 of the Act.
Whether the suppression of facts by the Informant makes the present proceedings infructuous, as alleged by the Opposite Parties? - Whether the Informant is liable to be penalized under section 45(1)(b) of the Act? - HELD THAT:- Although it is not intended to penalise Respondent No. 2 by imposing fine under Section 45 of the Act, having carefully perused the detailed information prepared by him on 31.03.2014 and his affidavit dated 09.04.2014, we do not have the slightest hesitation in recording a finding that he had deliberately suppressed the vital facts and documents from the Commission, which resulted in passing of the order under Section 26(1) on the premise that Appellant No. 1 had refused to appoint Respondent No. 2 as a stockist and supply the medicines on the ground of non-production of NOC from AKCDA - It is neither the pleaded case of Respondent No. 2 nor it has been argued before us that he is an illiterate person. Rather, the facts brought on record show that he is a graduate and has been in the business of medicines as a stockist of various pharmaceutical companies for last more than one decade. Therefore, he cannot plead innocent ignorance for rebutting the charge of deliberately concealing the material facts and documents from the Commission.
Whether the conduct/practices of OP 2 and/or OP 3 amount to contravention of any of the provisions of section 3 of the Act? - HELD THAT:- The findings recorded by the Commission about the alleged complicity of Appellant No. 1 in the anti-competitive practices/conduct of Respondent No. 3 are self-contradictory and are perverse. Once the Commission found that Respondent No. 3 had been issuing diktats to the pharmaceutical companies or coercing them to insist on production of NOC for appointment of a person as a stockist or supply of medicines, the element of agreement/concurrence automatically disappears and Appellant No. 1 could not have been held guilty of acting in violation of Section 3(1) of the Act.
It is also an admitted position that after his appointment as a stockist by the competent authority i.e. Appellant No. 3, Respondent No. 2 applied for supply of medicines and the needful was done without asking for NOC from AKCDA. Indeed, it is not even the case of Respondent No. 2 that Appellant No. 1 or any of its officers had demanded NOC before his appointment as a stockist in March, 2014 or thereafter. Thus, the entire edifice of the finding recorded by the Commission that Appellant No. 1 had acted in violation of Section 3(1) falls to the ground.
Whether the Commission could have held Appellants Nos. 2 and 3 guilty by invoking Section 48(1) of the Act? - HELD THAT:- Section 48 finds place in Chapter VI of the Act, which contains various provisions relating to penalties that can be imposed by the Commission. Section 42 confers power upon the Commission to penalize any person, who, without reasonable cause, fails to comply with the orders or directions issued by it under Sections 27, 28, 31, 32, 33, 42A and 43A of the Act. Under Section 42(2), the Commission can impose fine to the extent of rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore - The extent of penalty which can be imposed under that section extend to one percent of the total turnover or the assets, whichever is higher, of such a combination. Section 44 provides for imposition of penalty on a person, who is a party to a combination and makes false statement in any material particular, or knowing it to be false, or omits to state any material particular knowing it to be material. The extent of penalty which can be imposed under this section is rupees fifty lakh to one crore. Section 45 empowers the Commission to punish any person who fails to provide necessary information or documents, omits to state any material fact knowing it to be material, or willfully alters, suppresses or destroys any document which is required to be furnished. Section 46 confers power upon the Commission to impose lesser penalty than the one specified in the preceding sections.
Since the provision contained in Section 48(1) raises a presumption of guilty against every person, who, at the time of contravention of the provisions of the Act by the company, was incharge of, and was responsible for the conduct of its business and visits him with penalty, the same deserves to be construed strictly and in our view, the deeming provisions contained in the two sub-sections of Section 48 can be invoked only after it is found that the company has contravened the provisions of the Act or any rule, regulation, order made and direction issued thereunder. The use of the word 'committed' in the two sub-sections necessarily implies that before any person incharge of and responsible to the company or director, manager etc. of the company can be proceeded against and punished by invoking the deeming provisions contained in Section 48(1) and/or (2), there must exist an affirmative finding by some competent authority that the company has contravened the provisions of the Act or any rule, regulation etc. - in the absence of a determination by the Commission that the company has committed contravention of any of the provisions of the Act or any rule, regulation etc., the deeming clause contained in Section 48(1) cannot be invoked for punishing the person incharge of and responsible to the company for the conduct of its business. Similarly, the deeming provision contain in Section 48(2) cannot be invoked for penalising any director, manager, secretary or other officer of the company whose consent or connivance or negligence may have resulted in contravention of the provisions of the Act or of any rule, regulation or order made or direction issued thereunder by the company unless a finding is recorded by the competent authority that the company has in fact contravened the provisions of the Act.
In the present case, the Commission initiated investigation into the role of the persons incharge of and responsible for the conduct of business to Appellant No. 1 at the threshold. This is crystal clear from paragraph 5 of order dated 29.09.2014 passed by the Commission under Section 26(1) of the Act. However, the issues framed by the Jt. D.G. in Chapter 5 of his report, which have been extracted in the earlier part of this order, do not contain any indication that the role of Appellants Nos. 2 and 3 was also to be investigated. On his part, Respondent No. 2 neither averred/alleged nor he led any evidence to prove that Appellants Nos. 2 and 3 were incharge of and were responsible to Appellant No. 1 for the conduct of its business. The Jt. D.G. did record a conclusion that Appellant No. 1 is equally complicit in the decisions being taken by AKCDA for appointment of stockists and supply of medicines.
After considering the report of the Jt. D.G. in its ordinary meeting held on 23.04.2015, the Commission did direct that copy thereof be supplied to the parties and 11 individuals including Appellants Nos. 2 and 3 but the proceedings recorded in that meeting or the communications sent to the two appellants did not contain any indication about the action proposed to be taken against them under Section 48(1) of the Act - Appellants Nos. 2 and 3 did not get an opportunity to show that Section 48(1) cannot be invoked against them because they were neither the incharge of nor responsible to Appellant No. 1 for the conduct of its business. Therefore, it must be held the penalty imposed by the Commission on Appellants Nos. 2 and 3 by invoking Section 48(1) is also vitiated due to the violation of rule of audi alteram partem and is liable to be declared as nullity.
In any case, once the Tribunal has come to the conclusion that the finding recorded by the Commission against Appellant No. 1 is legally unsustainable, the consequential penalty imposed by the Commission on Appellants Nos. 1, 2 and 3 cannot be sustained and is liable to be quashed.
Conclusion - The evidence did not support the allegations of anti-competitive conduct or the individual liability of Appellants Nos. 2 and 3.
The impugned order set aside - appeal allowed.
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2016 (5) TMI 1623
Maintainability of petition under Article 226 of the Constitution of India - contravention of provisions of Sections 3(3)(a) & (b) of the Competition Act - HELD THAT:- An agreement, in law, may be oral or in writing but requires a meeting of minds of the parties entering into agreement on all the essentials of the subject qua which they are entering into agreement so as to bind each other thereto and compel performance or to measure damages in lieu of performance. Such meeting of the minds, in the absence of a writing, has to be proved as a fact and without it being so proved, there cannot be said to be contravention of Section 3(1).
Section 2(b) of the Act while defining ‘agreement’, takes within its ambit “any arrangement” or “understanding” or “action in concert”, even if arrived at informally and even if not intended to be enforceable. Thus, an agreement within the meaning of Section 3(1) will be found if the action of parties are found to be in pursuance to some common intention, even if not in pursuance to an ‘agreement’ within the definition of Contract Act, 1872, but in pursuance to an ‘understanding’ or ‘arrangement’. Conversely it follows that merely because two or more persons are doing similar or identical thing, will not find an agreement within the meaning of Section 3(1) unless some, if not all the way, meeting of their minds or common intention to do so is established.
Whether the words “practice carried on” refers to a situation resulting even without meeting of minds? - whether a practice carried on by those engaged in same trade even without any meeting of minds to carry on such a practice would be covered? - HELD THAT:- Section 2(m) defines a “practice” as including relating to the carrying on of any trade. However what is peculiar is that Section 3(3) which contains the words “practice carried on” is only raising a presumption as to what the same words in Section 3(1) mean. Section 3(3) by itself is neither prohibitory nor a voiding provision as Sections 3(1) and 3(2) respectively are. Thus, the words “practice carried on” have to be understood as a practice of trade in pursuance to meeting of minds.
In the absence of any evidence of meeting of minds between any two or more developers of real estate with an intention of causing an appreciable adverse effect on competition, there could be no violation of Section 3 as was complained/ informed of by the petitioner/informer. Mere formation of an association i.e. the respondent No.5 CREDAI, is not violation of Section 3, without it being further established that such an association was to or has resulted in appreciable adverse effect on competition. DG, which is an investigative agency of CCI and with whose findings/recommendations CCI, which has adjudicatory role is not bound, found such violations because of finding certain common practices followed by all the developers of real estate surveyed/examined by DG. CCI has however found such practices to be not a result of any common intention. CCI has further found such practices to be not having any appreciable adverse effect on competition.
No error is thus found in the impugned order of the CCI - The petition is dismissed.
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2016 (5) TMI 1622
Debarring for a period of three years from participating in future tenders and not to encash the bank guarantee - seeking a direction to release the amount of pending bills in respect of transformers already supplied and received by the Corporation - HELD THAT:- In Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan, [1958 (11) TMI 1 - SUPREME COURT], Mademsetty Satyanarayana v. G. Yelloji Rao, [1964 (11) TMI 112 - SUPREME COURT], Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, [1967 (12) TMI 66 - SUPREME COURT] and Sikkim Subba Associates v. State of Sikkim, AIR [2001 (5) TMI 949 - SUPREME COURT], the Apex Court held that even in case of mandatory provision, under specific circumstances, a party can waive its right. Waiver means relinquishment of one's own right. It is referable to a conduct signifying intentional abandonment of right. It may be express or may even be implied but should be manifest from some overt act. Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known existing legal right. Thus, benefit, claim or privilege, which, except for such a waiver, the party would enjoy. Even in a case if a plea is taken and evidence is not led, it would amount to be a waiver.
Applying the said principle to the present context, it appears that by amended purchase order dated 20.04.2015 by reducing the quantity of transformer to be supplied by the petitioner, the opposite parties had waived the condition of initial purchase order dated 18.06.2014 with regard to the quantity to be supplied pursuant to the initial contract, and as such the opposite parties had acted upon with the amended purchase order by accepting the supply of reduced quantity of transformers. Therefore, the opposite parties are estopped from taking any further coercive action against the petitioner.
On perusal of the impugned order, it appears that before debarring the petitioner to participate in future tender for a period of three years, no notice of opportunity was given to him before passing such order. Even otherwise, no notice or opportunity was ever given to the petitioner before passing any such order, and merely reference of the same has been made in the impugned order dated 14.09.2015, wherein it is stated that by resolution dated 21.08.2015, the petitioner has been debarred from participating in any Tender for a period of three years. In the facts of the present case, such resolution could not have been passed without giving opportunity to the petitioner. Such portion of the order dated 14.09.2015, by which the petitioner has been debarred, is liable to be quashed, and is accordingly quashed.
For balancing equity between the parties, it is directed that the amount equivalent to the bank guarantee already paid by the petitioner in lieu of return of the original bank guarantee is sustained, and the direction given in the order dated 14.09.2015 with regard to debarring the petitioner from participating in any future contract of the opposite party-Corporation, is quashed - writ petition stands allowed in part.
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2016 (5) TMI 1621
Treating interest earned on short-term fixed deposit - income from other sources and not business income - as contended by the Assessee, the Court finds that DRP observed that “It is also not the case of assessee that fixed deposits are to be maintained with bank for the requirement of LC” - case of the Assessee is that it has placed its unutilized funds in short term fixed deposits with banks which is yielding interest income.
HELD THAT:- In the grounds of appeal before the ITAT no specific challenge was raised by the Assessee to the above factual finding that the FDs were not being maintained to meet any requirement of the Bank for opening LC or for any other business purpose. In that view of the matter, the Court is unable to find any infirmity in the above treatment of interest income as income from other sources.
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2016 (5) TMI 1620
Denial of deduction u/s 80P - Treatment of interest income earned by the assessee on account of investment in Bank FDRs - being interest income earned by the assessee on investment of surplus funds as “income from other sources” u/s 56 - HELD THAT:- Upon hearing both the counsel and perusing the records, we find that the above issues is covered in favour of the assessee by the decision of this ITAT, referred by the CIT(A) in his appellate order. The distinction mentioned in the Grounds of appeal is not at all sustainable. We further find that this Tribunal again in the case of Chattisgarh Urban Sahakari Sanstha Maryadit [2015 (5) TMI 1088 - ITAT NAGPUR] held that the submissions of the assessee’s counsel is that the assessee society is maintaining operational funds and to meet any eventuality towards repayment of deposit the cooperative society is maintaining some liquidated funds as short term deposits with banks.
Hence adhering to the doctrin stair desises, we hold that the assessee should be granted benefit of deduction u/s 80P(2)(a)(i). Accordingly, the interest on deposits would qualify for deduction under the said section. Accordingly, we set aside the orders of authorities below and decide the issue in favour of the assessee.
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2016 (5) TMI 1619
Issues involved: Application for seeking permission to submit additional facts, documents, and grounds.
The Supreme Court of India, comprising MR. ANIL R. DAVE, MR. ADARSH KUMAR GOEL, and D.Y. CHANDRACHUD, JJ., allowed the application(s) for seeking permission to submit additional facts, documents, and grounds. The Court granted leave for the same. The petitioner was represented by Mr. D.L. Chidananda, Adv., Mr. Ajay Sharma, Adv., Mr. Abhinav Mukherjee, Adv., Mr. Dhruv Sheron, Adv., Mrs. Anil Katiyar, Adv., Mr. B.V. Balram Das, Adv., while the respondent was represented by Mr. Harish N. Salve, Sr. Adv., Ms. Anuradha Dutt, Adv., Ms. Fereshte D. Sethna, Adv., Mr. Tushar Jarwal, Adv., Mr. Achit Jolhy, Adv., Mr. Rahul Sateeja, Adv., Ms. B. Vijayalakshmi Menon, Adv., Ms. Gayatri Goswami, Adv.
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2016 (5) TMI 1618
Seeking sanction of the Scheme of Amalgamation - Sections 391(2) & 394 of the Companies Act, 1956 - HELD THAT:- Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region and the Official Liquidator having not raised any objection to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. The petitioner companies will comply with the statutory requirements in accordance with law. Certified copy of this order be filed with the Registrar of Companies within 30 days.
Petition allowed.
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2016 (5) TMI 1617
Violation of principles of natural justice - cryptic order, assigning no reasons - HELD THAT:- On perusal of the impugned order in Annexure-4 dated 5.2.2016, it appears that by a cryptic order without assigning any reasons, the tender has been cancelled and more so, it appears that the said cancellation has not been communicated to the petitioner. It is admitted fact that the petitioner has qualified in both the technical and financial bid pursuant to the invitation bid in Annexure-1.
It appears that since no reasons have been assigned in the order impugned in Annexure-4 and subsequently by filing affidavit, the opposite parties have tried to justify their action by giving explanation, this Court is inclined to interfere with the same. Thus, the order impugned in Annexure-4 dated 5.2.2016 and the consequential invitation of bid in Annexure-5 also cannot sustain and accordingly, the same are hereby quashed.
Petition allowed.
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2016 (5) TMI 1616
Dismissal of assessee's appeal in limine - none appeared on behalf of assessee nor any application has been filed for seeking adjournment - HELD THAT:- Notice of hearing was served upon the assessee twice but none appeared on behalf of assessee nor any application has been filed for seeking adjournment. This shows that the assessee is not interested in pursuing with his appeal.
Therefore, in view of the decision of Estate of Late Tukojirao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] and Multiplan India (Pvt.) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D]we dismiss the appeal of the assessee in limine.
Assessee may, if so advised, file an application before this Tribunal for restoration of his appeal and hearing on merits by showing reasonable cause for not appearing before the Tribunal on the date of hearing. The Bench, if so satisfied, may recall its order and restore the appeal to its original number for hearing on merits.
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2016 (5) TMI 1615
Disallowance u/s 14A - in the quantum appeal, the Tribunal has deleted the said disallowance which was made by the AO over and above what the assessee has offered the disallowance u/s14A - HELD THAT:- In view of the aforesaid facts that in the quantum proceedings the Tribunal vide order [2014 (1) TMI 709 - ITAT MUMBAI] has deleted the disallowance made by the AO u/s 14A over and above what was suo moto disallowed by the assessee in its return of income, the penalty levied on such disallowance have no legs to stand. CIT(A) has deleted the penalty after following Tribunal order in the quantum proceedings. Accordingly, ground raised by the revenue is dismissed.
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2016 (5) TMI 1614
Enhancement of compensation of acquired land - HELD THAT:- In its recent judgment in the case of ASHOK KUMAR & ANR. ETC VERSUS STATE OF HARYANA [2016 (2) TMI 1376 - SUPREME COURT], the Hon'ble Supreme Court, while interpreting the scope of Section 25 of the Act and duty cast on the courts to grant just and reasonable compensation of the acquired land, even more than what was claimed by the landowners, observed The pre-amended provision put a cap on the maximum; the compensation by court should not be beyond the amount claimed. The amendment in 1984, on the contrary, put a cap on the minimum; compensation cannot be less than what was awarded by the Land Acquisition Collector. The cap on maximum having been expressly omitted, and the cap that is put is only on minimum, it is clear that the amount of compensation that a court can award is no longer restricted to the amount claimed by the applicant. It is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.
Although it is a matter of record that revenue estate of villages Dhankot and Budhera were adjoining with each other, yet, even if it is presumed, however, for the sake of argument only, that there is some distance between two pieces of land acquired out of the revenue estate of village Dhankot and the acquired land in the present cases, then the law laid down by the Hon'ble Supreme Court in Ashrafi and others Vs. State of Haryana and others [2013 (4) TMI 1000 - SUPREME COURT], Kashmir Singh Vs. State of Haryana and others, [2013 (12) TMI 1745 - SUPREME COURT] and Thakarsibhai Devjibhai and others v. Executive Engineer and another, [2001 (1) TMI 1024 - SUPREME COURT] clearly supports the claim of the landowners.
The landowners are held entitled to receive the compensation for their acquired land at the uniform rate of ₹ 2,80,00,000/- per acre, from the date of notification under Section 4 of the Act. Besides this, the landowners shall be entitled for all the statutory benefits available to them under the relevant provisions of the Act.
Appeal disposed off.
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2016 (5) TMI 1613
Maintainability of appeal against CIT(A) order - Addition of loan received by the assessee from its 100% subsidiary as deemed dividend - debenture redemption reserve within the meaning of Explanation 1(b) of section 115JB - CIT(A) deleted addition made u/s 2(22)(e) and holding that the debenture redemption reserve is not a ‘reserve’ within the meaning of Explanation 1(b) of section 115JB - Assessee submitted that the tax effect in this case is below 10 Lakhs and as per the CBDT Circular No. 21 of 2015, dated 10-12-2015, the present appeal is not maintainable.
HELD THAT:- DR fairly conceded that the tax effect in department’s appeal is below 10 Lakhs. We find that the issue raised in appeal does not fall under any of the exceptions specified in para 8 of the Circular. Since, it has been specifically clarified in the Circular aforesaid that the instruction will apply retrospectively to all the pending appeals, the present appeal filed by the revenue is not maintainable. We, therefore, dismiss the appeal in limine.
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2016 (5) TMI 1612
Entitlement to claim legal right in respect of the posts remained unfilled as the select list stood exhausted with the joining of the candidates to the extent of posts advertised - HELD THAT:- Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the Appellants to claim equality.
Learned Counsel for the Appellants submitted that the Appellants have been pursuing the matter for about eight years and even today there are vacancies in Punjab Judicial Service and thus prayed that direction be issued to the Respondents to consider the case of the Appellants as against the existing vacancies. This contention does not merit acceptance. Appointment to an additional post or to existing vacancies would deprive candidates who were not eligible for appointment to the post on the date of submission of the applications mentioned in the advertisement but became eligible for appointment thereafter.
The High Court rightly held that the candidates much more than the vacancies advertised have already been permitted to join and thus the Appellants cannot claim any legal right in respect of the posts of reserved category remaining unfilled. The impugned judgment does not suffer from any infirmity warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India.
Appeal dismissed.
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2016 (5) TMI 1611
Seeking refund of seized rubber or its market value - grievance of the petitioner is that the authorities have not responded to his representation - principles of natural justice - HELD THAT:- This writ petition is disposed off with a direction to the Assistant Commissioner of Customs, (Preventive) NER Region, Shillong (Respondent No.4) to decide the representation 21.8.2015 (Annexure-A) of the petitioner by a reasoned order within 45 days from the date of receipt of a copy of this order and communicate the order to him.
Petition disposed off.
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2016 (5) TMI 1610
SEBI states that the representation made by the Appellant would be considered and appropriate orders would be passed within a period of seven weeks from today. Statement made by Counsel for SEBI is accepted.
Appellants in both the Appeals, do not press the Appeals. Both the Appeals are disposed of in the above terms with no order as to costs.
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2016 (5) TMI 1609
Unaccounted transactions regarding sale of land - Determination of correct income of the assessee - co-ownership in land sold - Assessee submitted that the AO had wrongly calculated the addition as the share of assessee was admittedly 1825.49 marlas being 43% and this fact was verifiable from copy of seized documents -
AR submitted that assessee alongwith other joint owners of certain land had sold such land and had claimed to be exempt from capital gains being the asset was agricultural land but the same was rejected by Assessing Officer and in the case of group companies they had agreed before the Settlement Commission for taxability of such income as business income and therefore in the present appeal the assessee is not on the issue of taxability of such profits as business income but he submitted that Assessing Officer had wrongly calculated the addition by including the share of Sham Lal one of the co-owner in the income of assessee which is highly unjustified
HELD THAT:- We are in agreement with the arguments of learned AR for the proposition that correct amount of taxes should be collected and AO should not misuse the lack of knowledge of the assessee.
As undisputed fact that the total area of land was 4245.43 marlas as noted in the seized document placed at (PB Page 843). It is also undisputed fact that share of assessee was 43% therefore, the share of assessee was only 1825.49 marlas. It is also undisputed fact that the rate for the purpose of calculation of income of the assessee has been taken from the seized document @Rs.18750/- per marla. The above fact is further fortified from para 20 of order of settlement commission where the settlement commission has also noted the share of the assessee at 43% out of total land of 4243.55 marlas and had also noted that said land was sold at Rs.18750 per marlas.
Assessee’s share was definitely 43% of the total land and the gross receipts from sale of such land @ Rs.18,750 per marla comes out of at Rs.34,22,7,938/- and therefore, the Assessing Officer should not have taken the value of sale consideration at Rs.4,65,09,900/-.
Contention of learned AR that Assessing Officer has included the share of Mr. Sham Lal also seems to be correct because of the fact that if the share of Mr. Sham Lal is included in the land holding of assessee, it will come out at about the same figure for which Assessing Officer had made the addition. However, on this account also the action of the Assessing Officer is not justified as per Mr. Sham Lal had already offered his share of income from land as business income before Settlement Commission.
CIT(A), has reduced the addition after reducing the cost price of the land as 35,41,391/- where as in our considered opinion the learned CIT(A) should have restricted the same to Rs.30,68,6,547/- (being correct sale value Rs.34227938/- purchase cost Rs.3541391/-). Therefore, we allow ground of assessee’s appeal and direct the Assessing Officer to restrict the addition confirmed by learned CIT(A) at Rs.42,95,9,509/-to Rs.30,68,6,547/- only.
Contention of the assessee that the asset should have been treated as capital asset - We do not find any force in the grounds of appeal as Mr. Sham Lal and his group companies has already admitted before the settlement commission that the same may be treated as business income, therefore, ground Nos. (i) to (iii) are dismissed.
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