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2015 (6) TMI 1280
Refund of service tax paid - rejection on the ground that same is hit by limitation as per Section 11B read with explanation B(ec) of Central Excise Act, 1944 - appellant got a favourable order from ld. Commissioner (A) on 22-6-2007 and filed the refund claim on 23-5-2011 - HELD THAT:- On 11-5-2007 explanation of B(ec) was inserted to Section 11B of Central Excise Act, 1944 which explains that relevant date is a date on which assessee got the favourable order from the higher authorities. In that case from the date of the said order the assessee is required to file refund claim within 1 year. In this case admittedly favourable order was passed by ld. Commissioner (A) in favour of the appellant on 22-6-2007 after the insertion of explanation on 11-5-2007. Therefore, appellant is required to file refund claim within 1 year from the said date which appellant has failed to do so. Therefore, the refund claim filed by the appellant is hit by limitation.
The relevance made by the ld. Counsel for the appellant in the case of Crompton Greaves Ltd. [2009 (4) TMI 490 - CESTAT, MUMBAI] is of no help. In fact, in this case refund claim was filed on 1-11-1998 whereas the explanation was inserted to section 11B of the Act on 11-5-2007. Therefore, the refund claim is hit by limitation.
Conclusion - The appellant is required to file refund claim within 1 year from the said date which appellant has failed to do so. Therefore, the refund claim filed by the appellant is hit by limitation.
There are no infirmity with the impugned order. Same is upheld. Appeal filed by the appellant is dismissed.
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2015 (6) TMI 1279
Correctness and legality of the order passed by the Company Law Board - non-service of notice to respondent No. 2 - Violation of principles of natural justice - HELD THAT:- Until and unless the Company Law Board records a finding that there has been service of notice on respondents, it cannot be presumed that there has been effective service of notice. Undisputedly, in the instant case, there was no notice served on respondent No. 2 and order of Company Law Board which is under challenge in these two appeals would indicate that at various places namely, paragraphs 11 and 16, it has been indicated as though service of notice on respondent No. 2 is effected or completed which otherwise was not. This is the factual error which has occurred.
Order passed by the Company Law Board, Southern Region Bench, Chennai dated 15.05.2012 is hereby set aside - Matter is remitted back to the Company Law Board, Southern Region Bench, Chennai for adjudication of petition on merits afresh and in accordance with law - Appeal allowed by way of remand.
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2015 (6) TMI 1278
Winding up of company - Section 433(e) and 434 read with Section 439 of the Companies Act, 1956 - HELD THAT:- This Court is of the opinion that the defence taken by the respondent cannot be said to be moonshine, sham or bogus defence and the dispute can be said to be a bona fide and reasonable dispute. Reliance is placed by the petitioner with regard to the communication by way of email dated 10.10.2013. However, petitioner has not explained about the dispute raised by the respondent by communication dated 04.12.2013 i.e. prior to issuance of first notice as well as the statutory notice. It is the case of the petitioner that the vouchers and the receipts produced by the respondent with regard to the cash payment are concocted and forged documents. However, from the record it emerges that the Director of the petitioner has signed those documents. If the petitioner has any grievance and dispute with regard to the said documents, it is always open for the petitioner to file appropriate proceedings with regard to the said socalled forged documents.
In the present case, before the notice of demand was given by the petitioner on 27th January 2014, the respondent company has already raised the dispute by a communication dated 04.12.2013 and disputed about the poor quality of work.
In the case of Tata Iron & Steel Company Ltd. [2000 (3) TMI 920 - HIGH COURT OF GUJARAT], the Division Bench of this Court held that winding-up is a remedy of last resort and not to be utilised as a pressurizing tactic to obtain payment of dues and the Court laid down general principles in this regard. In the said case the Court found that the company was financially sound and there were disputed aspects about is liability to pay to the petitioner and therefore dismissed the petition.
Considering the facts of case on hand and the correspondence between the parties, the affidavits, and counter affidavits, it appears that debt is not admitted; there are bona fide disputes raised by the respondent company and the said disputes are right from very beginning more particularly even prior to the statutory notice. A Civil Suit is also pending for recovery of amounts filed by the respondent company, might be after filing of the present petition, the petition for winding up of the respondent company is not required to be admitted and entertained. There is no determined or a definite sum of money payable by the respondent company to the petitioner as the same are disputed - this Court is not expressing any opinion on merits with regard to the dispute as to entitlement or claim by either party as the same is required to be adjudicated upon by a competent Civil Court more particularly when the suit filed by the respondent is already pending before the Ahmedabad Civil Court.
This Company Petition fails and is accordingly dismissed.
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2015 (6) TMI 1277
Dishonour of Cheque - burden to prove past transaction between the accused/revision petitioner and the complainant/first respondent - complainant did not produce any material evidence to show the supply of goods to the accused/petitioner - whether the transaction between the parties has been proved or not? - HELD THAT:- This piece of deposition of the complainant would go to show that the complainant categorically denied the suggestion that there was no business transaction between the parties from 2005 and that the complainant firm was established in the year 2005. However, according to the counsel for the first respondent/complainant, the sentence was split in to two by employing a full stop, instead of comma.
As regards the contention of the counsel for the accused/petitioner that the cheque was presented after four months and therefore it vitiates the complaint, such argument has to be rejected for the simple reason that if the cheque was not valid or the validity of the cheque expired, the bank would not have entertained the cheque and it would have returned the cheque by specifically mentioning the reason for return of the cheque. However, in the present case, the cheque was entertained and processed by the bankers and it was dishonoured for the reason that "the account was closed". This would only indicate that the cheque in question was issued by the accused from an account which is no longer in existence and it was valid as on the date of it's presentation.
It is true that under Section 138 of the Negotiable Instruments Act, for the purpose of drawing a presumption as contemplated under Section 118 read with Section 138 of the said Act, the burden lies on the complainant to prove the guilt of the accused. In the present case, to substantiate the complaint, as mentioned above, the complainant has produced ledger book which has entries relating to the transaction. The accused also did not dispute the signature in the cheque by sending a reply to the statutory notice sent by the complainant. In such circumstances, it has to be held that the complainant has discharged their initial burden and it is the accused who did not disprove the complaint given by the complainant.
The judgment of conviction and sentence rendered by the courts below needs no interference - The Criminal Revision Case is dismissed.
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2015 (6) TMI 1276
Dishonour of CHeque - Income Tax Return filed by the respondent/complainant contains the amount due from the petitioner/accused was only Rs. 12,72,000/-, whereas, the cheque was for Rs. 16,72,000/- - ingenuine claim of respondent - HELD THAT:- The alleged cheque alleged to have been given by the accused to the complainant is dated 18.10.2002 and when it was presented for collection on 07.02.2003,it got dishonoured, for which, a statutory notice was issued to the accused on 15.02.2003, after which, since, the accused has not come forward to pay the amount, the complaint for the offence under Section 138 of the Negotiable Instruments Act was given by the complainant in the year 2003, whereas, a complaint-Ex. D.4 was lodged by the petitioner/accused only in the year 2004 i.e., on 15.03.2004 alleging that the cheque was stolen by the complainant i.e., nearly one year after the issuance of the statutory notice dated 15.02.2003. If the cheque was really stolen by the complainant as alleged by the accused, it is not known as to what prevented the accused from giving the complaint immediately after the incident and what is the purpose of giving the complaint belatedly, that too, nearly one year after the issuance of the statutory notice and this would clearly go to show that the complaint given by the petitioner/accused is only an afterthought and this discrepancy in respect of the very averment regarding the theft of cheque has been rightly pointed out by the Courts below.
Apart from that, the small discrepancy with regard to the amount found in the Income Tax Return filed by the complainant cannot be a reason to say that the complainant's claim is not a genuine one, especially, when there is a clear consensus between the parties regarding the amount, for which, the cheque was given and therefore, on merits, the Appellate Court has rightly held that the accused is found guilty for the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo the imprisonment and also directed thim to pay compensation.
There are no reason to interfere with the reasoned judgment passed by the Appellate Court, dated 18.11.2008 - This Criminal Revision Case is dismissed.
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2015 (6) TMI 1275
Dishonour of Cheque - rebuttal of presumption raised u/s 139 NI Act - preponderance of possibilities - justification in giving stop payment instructions in relation to the cheque in question - Vicarious liability of accused no. 2 and accused no. 3 under Section 141 of the NI Act - HELD THAT:- The accused firm claimed that it suffered losses due the inferior quality of the materials supplied. However, the accused did not produce any statements of accounts or other evidence to show the losses allegedly incurred by the firm on account of supply of defective or inferior goods. The accused have neither preferred a counter-claim in the suit of the complainant, nor preferred any other civil suit to claim the alleged losses from the complainant. The defence of the accused firm, that it suffered losses due to the inferior quality of materials is its mere ipse dixit. In absence of any credible evidence to prove the same, it cannot be accepted.
Since the accused firm has brought no evidence on record to prove that Sanjay Sharma visited the accused firm to assess the quality of the material supplied, or that he acknowledged that the quality of the goods supplied was defective or inferior, the entry of visit of Sanjay Sharma relied upon is of no avail.
The presumption under Section 139 NI Act arose in the facts of the present case. For the said presumption to be rebutted, the defence had to meet the standard of being probable upon preponderance of probabilities - the accused has not managed to rebut the said presumption. The defence taken by the accused was that the materials supplied were of inferior quality. Thus, it is established that the accused has not managed to show, even as probable, its defence that the complainant company supplied materials of inferior quality. Thus, the presumption under Section 139 NI Act is also not rebutted.
The Supreme Court in S.M.S. Pharmaceuticals [2005 (9) TMI 304 - SUPREME COURT] observed that only the persons who are responsible for the conduct of the business of the firm at the time the offence was committed will be vicariously liable, and not all the persons in the firm. It is an admitted position that accused no. 3 placed the orders on behalf of the accused firm between September, 2007 and February, 2008. The cheque dated 25.06.2008 was dishonoured, and a legal notice dated 05.07.2008 regarding the same was sent to the accused no. 3, as well as the accused firm. He left the accused firm only in January, 2009. Therefore, the accused no. 3 was a part of the accused firm when the offence was committed, upon dishonour of the cheque. Since the accused no. 3 was purchase manager, who placed the orders on behalf of the accused and was working in accused firm when the cheque was dishonoured, he was responsible for conduct of business of the accused firm at the time of commission of the offence - thus, it is established that accused no. 3 would be vicariously liable as he was responsible for conduct of the business of the accused firm at the relevant time.
The impugned judgment of acquittal qua the accused firm and accused No.3 is, accordingly, set aside. The accused no. 2 stands acquitted. The accused no. 1 and accused no. 3 are found guilty of commission of the offence under Section 138 NI Act - Appeal allowed in part.
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2015 (6) TMI 1274
Dishonour of Cheque - legally enforceable debt or liability at the time of cheque presentation or not - security cheque or not - Section 138 NI Act - HELD THAT:- It would defeat the object of Section 138 NI Act to hold that the seller/ service provider cannot enforce his right conferred by Section 138 NI Act in such a situation, as it would encourage dishonest buyers to evade their penal liability. It would erode the efficacy and credibility of commercial transactions undertaken on the basis of post-dated cheques, or cheques issued towards advance payment, with a credit period. The view of the Supreme Court in Indus Airways [2014 (4) TMI 464 - SUPREME COURT] does not appear to take out from the scope of Section 138 NI Act cases of this nature, as what fell for examination was a fact situation where the advance cheque had been issued along with the purchase order, and the supply of goods was not made for whatever reason.
The “debt or other liability” has to be a legally enforceable debt or other liability. Neither the main provision of Section 138, nor the explanation suggest that the debt or other liability should be in existence on the date of issuance of the cheque, i.e. on the date of its delivery to the drawee or someone on his behalf or, on the date that the cheque bears. The only reference to time in the Section, is the point of time when the cheque is returned unpaid by the drawers bank.
The scope of Section 138 NI Act would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability - It would have to be examined on a case to case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to Section 138 NI Act, or not.
There is no merit in the legal submission of the respondent accused that only on account of the fact that the cheque in question was issued as security in respect of a contingent liability, the complaint under Section 138 of the NI Act would not be maintainable.
The learned Magistrate founded the impugned judgment on a wrong premise of law, holding that merely because the cheque in question was issued as a security cheque and held that the same could not be the basis of a complaint under Section 138 of the NI Act - the impugned judgment is, accordingly, set aside and the respondents/accused are held guilty and convicted of the offences under Section 138 of the NI Act.
Appeal allowed.
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2015 (6) TMI 1273
Telescoping benefit - unaccounted investment in house and on account of unaccounted cash found - AO there was a survey U/s 133A - As a result of the survey proceedings, excess cash, gold stock and incriminating documents were found - CIT(A) telescoping allowed suo moto by the AO even when the burden of proving its eligibility was on the assessee.
HELD THAT:- CIT(A) have given detailed reasoning for allowing telescopic benefit of income earned and investment made. DR has not controverted the finding of the CIT(A), therefore, we do not find any reason to intervene in the order of the CIT(A). Accordingly, order of the learned CIT(A) is upheld. Revenue's appeal is dismissed.
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2015 (6) TMI 1272
Denial of exemption u/s 11 - income derive from community hall owned by the assessee - Charitable activity or not? - rental income received from letting out of community hall is in the nature of business income and therefore such activity cannot said to be for charitable purpose as per the proviso to section 2(15) - AO opined that running of Kalyana Mandapam in the name of community hall was not incidental to the main objects of the assessee trust, which are education, medical relief and relief to the poor - HELD THAT:- From the facts of the case it is apparent that the assessee trust's multiple activities are to provide relief to the poor, medical relief, providing education and for advancement of any other object of general public utility. Section 2(15) of the Act has undergone drastic change by the Finance Act 2008 with effect from 1/4/2009.
If the asset is used for education/medical relief etc., and during the spare time the asset is commercially exploited, in such event, probably it could be said that such activity to be incidental to the objects of education/medical relief etc., of the assessee trust. In the given case before us the Kalyana Mandapam is a distinct and separate asset specially designed to conduct such commercial activity. Looking at the nature of this activity conducted by the assessee trust, it can be considered only as a commercial activity of the assessee trust. Further the case laws relied by the assessee would not be applicable to the case of the assessee, because Section-2(15) of the Act was subsequently amended.
In the case Gujarat Industrial Corporation [2010 (12) TMI 672 - ITAT, AHMEDABAD] it has held that the word "includes" occurring at section 11(4) means that there is a reference of property or business of a trust which is a business undertaking in addition to the other properties of the trust. In this given case before us, the community hall or marriage hall whatever may be called is the asset of the separate business of the assessee which falls apart from the other charitable activities conducted by the assessee. Therefore considering the facts and circumstance of the case, we do not find it necessary to interfere with the order of the Revenue.
Allowing the benefit of depreciation against the asset the cost of which is already allowed as application of income - The cost of the asset which was already allowed as application of income for the purpose of Section 11(1)(a) of the Act, the benefit of depreciation on the same asset cannot be claimed while computing the exempt income of the trust U/s. 11 of the Act. However, we make it clear that in the case where the benefit of Section-11 is withdrawn, the assessee would be entitled to claim depreciation while computing the income under the head 'income from business' as per Chapter IV-D of the Act. It is ordered accordingly.
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2015 (6) TMI 1271
Levy of penalty u/r 26 of Central Excise Rules, 2002 - credit denied on the premise that M/s. Sidh Balak Enterprises has made a statement that they are issuing invoices and not supplying the goods - paper transaction - HELD THAT:- In this case, statement of appellant has not been recorded but the statement of buyer of the appellant is recorded wherein he has admitted that they have received the goods against the invoices issued by M/s. Sidh Balak Enterprises. To contravene to said statement, Revenue was required to find out whether the manufacturer supplier has supplied the said goods or not. Moreover, no investigation was conducted at the end of transporter to ascertain the fact that transporter has transported the goods from manufacturer supplier to deliver the goods to the appellant. The show cause notice was not required to be issued on the presumptions and assumptions.
There should be corroborative evidence to prove the allegation, as there is no corroborative evidence to prove the allegation against the appellant, therefore, demand confirmed in the impugned order are not sustainable and it cannot be alleged that there was merely a paper transaction on which the appellant has taken the Cenvat credit.
The impugned order is set aside - appeal allowed.
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2015 (6) TMI 1270
Deduction u/s 80P(2)(d) - interest earned from Banks, Post Office and on FDRs - CIT(A) allowed claim - HELD THAT:- This issue as examined by the Tribunal in the case of Zila Ganna Utpadak Sahkari Samiti Ltd., Hardoi and Income Tax Officer, Hardoi vs. Sahkari Ganna Vikas Samiti Ltd., Hardoi [2014 (11) TMI 1286 - ITAT LUCKNOW] and the ld. CIT (A) has followed the said orders while holding that deduction under section 80P of the Act is allowable to the assessee on the interest on FDRs from banks and post office. Copies of the orders of the Tribunal are placed on record.
Since the ld. CIT (A) has adjudicated the issue following the order of the Tribunal in the aforesaid cases, we find no infirmity in his order. We accordingly confirm the order of the ld. CIT(A). Appeal of the Revenue stands dismissed.
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2015 (6) TMI 1269
Deferment of sales tax liability u/s. 43B - sales tax liability in respect of which the assessee was availing the benefit of Sales Tax Deferment Scheme - HELD THAT:- We find that similar issue was considered by the ITAT in assessee's own case for Assessment Years 2005-06 and 2006-07 [2010 (6) TMI 839 - ITAT AHMEDABAD] and also for AY 2008-09 [012 (9) TMI 1248 - ITAT AHMEDABAD] and the ITAT held that the disallowance u/s 43B in respect of such sales tax liability on which the assessee is entitled to Sales Tax Deferment Scheme is not justified. Decided against revenue.
Disallowance of interest under proviso to Section 36(1)(iii) - AO was of the opinion that the part of the interest payment was attributable to the funds utilized for creation of capital work-in-progress, therefore, made proportionate disallowance of interest - AO also found that during the year under consideration, the assessee gave advance without charging of interest - CIT(A) deleted addition - HELD THAT:- As against this interest free fund, the investment in capital work-in-progress is only Rs. 26.01 crores and advance to others is Rs. 12 lacs. Thus, the interest free fund available with the assessee is more than 10 times of the capital work-in-progress and advance to others. Admittedly, the AO has not pointed out that any borrowed money has been utilized for the purpose of investment in capital work-in-progress or for advance to others. He made proportionate disallowance merely on the presumption that the proportionate borrowed money must have been utilized for investment in capital work-in-progress, etc.
We find that under the similar circumstances, in the case of Raghuvir Synthetics Ltd. [2013 (7) TMI 806 - GUJARAT HIGH COURT] upheld the decision of ITAT. In that case also the interest free fund available with the assessee was much more than the interest free loan given by the assessee. AO has not proved that the borrowed money has been utilized for giving of interest free advances. AO disallowed the interest on proportionate basis. The CIT(A) deleted the addition which was upheld by the ITAT. Decided against revenue.
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2015 (6) TMI 1268
Grant of remand to petitioner - remand application filed after the petitioner was produced before the learned Special Judge - HELD THAT:- The Supreme Court, in CENTRAL BUREAU OF INVESTIGATION SPECIAL INVESTIGATION CELL-I VERSUS ANUPAM J. KULKARNI [1992 (5) TMI 191 - SUPREME COURT] has considered the question in all its legal aspects, whether a person arrested and produced before the Magistrate as required under Section 167(1) of the Code, can still be remanded to the police custody after the expiry of initial period of fifteen days. It may be useful to refer to the facts in the said case.
In the present case, the accused was arrested on 15th September 2014 and was produced before the learned Special Judge on 16th September 2014. The police applied for his custody on the same day by filing a remand application. For some reason or the other, although the fault is sought to be found with the accused, no orders could be passed within fifteen days from the date of the production and the impugned order was passed on 25th March 2015. It is thus clear that the first fifteen days expired by the date of the order i.e. 25th March 2015. The Court below, therefore, committed a serious error in holding that police custody could be granted after the expiry of fifteen days of the production of the accused.
In C.B.I v. Anupam J.Kulkarni, it has been held that Section 167 of the Code is supplementary to Section 57, Cr.P.C. As per the Code, the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167 of the Code. While doing so, the police should also transmit a copy of the entries made in the diary relating to the case which is meant to afford to the Magistrate, in order to furnish the necessary information upon which, he can take the decision whether the accused should be detained in the custody further or not - the Judicial Magistrate can in the first instance authorise the detention of the accused either to judicial custody or police custody, but the total period of detention cannot exceed fifteen days in the whole, after the first remand. Within this period of fifteen days, there can be more than one order changing the nature of such custody either from police to judicial or vice-versa, as decided by the Hon'ble Apex Court in the decision cited.
A close look at the decision of the Supreme Court in the case of Kosanapu Ramreddy [1992 (7) TMI 356 - SUPREME COURT] reveals that there is no reference at all to the decision of Anupam earlier in point of time. What is discernible from Kosanapu Ramreddy is that if the accused challenges the order of remand, and by the time his challenge is considered by the Court if the initial period of fifteen days (in that case it was 60 days because of TADA) expires, then that would not put an end to the matter. If the challenge fails, then the order passed prior to the expiry of 60 days would get revived and could be given effect to.
This application succeeds and is hereby allowed. The impugned order dated 25th March 2015 passed by the 3rd Additional Sessions Judge, Surat, is hereby ordered to be quashed and set aside.
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2015 (6) TMI 1267
Dishonour of cheque - pronote was signed by the witnesses in his presence or not - rebuttal of presumption - HELD THAT:- It is settled law that it would not be open to this Court to set aside an acquittal unless the judgment of the acquittal under appeal appears to be perverse, or based on misappreciation of the evidence.
Assuming, that the cheque had been handed over to the complainantappellant in blank by the respondent, the purpose was to enable the appellant to encash it, in the event that the loan was not repaid. Thus, the respondent gave an implied authority to the complainant-appellant to fill up the cheque and encash it - Similarly, once the pronote has been signed and executed by the respondent admittedly, it acts as an acknowledgment of the transaction. The accused-respondent has not been able to produce any evidence in his support that the pronotes had been executed for a loan of only Rs. 50,000/-.
It is settled law that the burden to rebut the presumption under Section 139 NI Act is on the accused. The burden on the accused to rebut the presumption is only to the extent of “preponderance of possibilities”, whereas the complainant has to prove its case beyond reasonable doubt. It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he has to lead separate/direct evidence. However, in the present case, the accused-respondent has not been able to rebut the presumption of the cheque having been issued for consideration of the amount reflected in the cheque, in the face of the pronotes.
The accused is obliged to set up a probable defence. The defence cannot be only a “possible” defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the defence/explanation for issuance of the dishonoured cheque is a probable one. For the reasons aforesaid, the findings and conclusions drawn by the learned MM on facts is palpably wrong, and it is also based on an erroneous view of the law.
The impugned judgment is set aside. The accused is convicted of the offence under Section 138 of the NI Act - Petition allowed.
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2015 (6) TMI 1266
Levy of penalty u/s 271(1)(c) - exemption u/s 10(38) for the said LTCG on account of sale of shares denied - HELD THAT:- In the case of levy of penalty, it should be proved on the file that the particulars furnished by the assessee were inaccurate particulars of income or that there was concealment of income. Every case of confirmation of disallowance cannot be regarded as a case of furnishing of inaccurate particulars of income or concealment of income.
Even it cannot be said that this case of the assessee was a case of no evidence at all. The assessee has submitted evidence in the shape of contract note, purchase bills, sale bills, bank statement, D-mat account statement reflecting the sale of shares etc. The evidence produced on the file by the assessee has not been proved wrong or false.
As decided in the case of “CIT vs. Upendra V. Mithani” [2009 (8) TMI 1159 - BOMBAY HIGH COURT] has observed in the matter of levy of penalty u/s 271(1)(c) that if the assessee gives an explanation which is unproved but not disproved i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false, then no penalty can be imposed in such cases. When the facts of the case in hand the levy of penalty cannot be held to be justified in this case. The same is accordingly ordered to be deleted. Appeal of the assessee allowed.
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2015 (6) TMI 1265
Classification of goods - rate of tax on sale of IT Products/Cables and other Apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FITZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District, Tamil Nadu to another trading unit in the same FTWZ, developed under Indian SEZ Act, 2005 - HELD THAT:- In order to effect bond-to-bond transactions involving goods or services, trader’s warehouse located ina SEZ/FTWZ has to apply to the Appropriate Customs. Authority having jurisdiction over the area where the SEZ/FTWZ is located, to operate the warehouse and to transact from thereon’ in respect of goods or services. The depositor of the warehoused goods, to transfer the bonded goods from one warehouse located in SEZ/FTWZ to another warehouse located in same or different SEZ/FTWZ, has to get permission from the Customs Authorities so authorised, as per the legal formalities, prescribed by the Customs Act, 1962.
If all the provisions under SEZ Act, 2005 TN SEZ (Special Provisions) Act, 2005, Section-5(1) and (2) of CST Act, 1956 and Section-67 of the Customs Act, 1962, the transfer of bonded goods from one warehouse in FTWZ to another bonded warehouse located in the same FTWZ or another FTWZ is to be treated as having taken place beyond the Customs Frontiers of India not cleared for home consumption and would therefore not falling under the purview of either the TNVAT Act, 2006 or the CST Act, 1956. Summarily, the transfer of warehoused goods in a bonded warehouse located in FTWZ to another warehouse located in same or another FTWZ, is to be treated as sale or purchase effected in the deemed foreign territory, i.e. beyond the Customs Frontiers of India, not liable to tax under TNVAT Act, 2006 or under CST Act, 1956.
It may therefore be clarified that the sale of IT products/cables ‘and other apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FTZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District by the applicant -dealer to another dealer who is also having trading and warehousing facility in the same FTWZ or in another FTWZ is eligible for exemption under TNVAT Act, 2006. Dated this the 22nd day of June 2015.
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2015 (6) TMI 1264
Forging of sale deed in respect of a theater owned by her - offences under Section 467, 468, 471 and 420 IPC - HELD THAT:- This Court perused both the FIRs. Crime No.216 of 2012 relates to an incident that took place on 24.04.2012, where the defacto complainant/Bhuvaneswari was abused and assaulted by Subramaniam and his family members and that is why, the police registered a case for offences under Section 294[b], 323 and 506 [i] IPC. Whereas, in this complaint, Bhuvaneswari alleged that Subramaniam has forged the sale deed in respect of a theater owned by her and that is the reason, why the police have registered a case for offences under Section 467, 468, 471 and 420 IPC. Thus, the allegations in Crime No.216 of 2012 and Crime No.179 of 2015 are totally different.
That apart, this Court cannot go into disputed question of facts in a petition under Section 482 Cr.P.C. The Hon'ble Supreme Court in State of Haryana Vs Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT] has laid down the guidelines for quashing an FIR. The complaint in Crime No.179 of 2015 discloses the commission of cognizable offence and therefore, this Court cannot quash the FIR, in view of the law laid down by the Hon'ble Supreme Court in the aforesaid judgment.
Petition dismissed.
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2015 (6) TMI 1263
Dishonour of Cheque - adequate opportunity was given to the petitioner for cross-examination - denial of further cross-examination - HELD THAT:- Adequate opportunity was given to the petitioner for cross-examination of P.W.1. No specific case has been made out as to how the petitioner would be prejudiced in the instant case if further cross-examination is not allowed as the courts below have correctly recorded that only ambiguous questions were cited for further cross-examination.
The prayer for further examination of P.W.1 is not a bona fide one and the same was made solely for the purpose of delaying the proceeding and was rightly turned down.
This revision petition is dismissed with a direction upon the trial court to conclude the trial as expeditiously as possible without granting unnecessary adjournments to the either of the parties.
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2015 (6) TMI 1262
Amount written off as irrecoverable - failure of the assessee in producing the relevant particulars relating to the discounts and also for the reason that the debtors are undertakings of the State Government, the CIT(A) has confirmed the addition made by the AO - HELD THAT:- It is a limited request of assessee that he be given one more opportunity for filing the relevant details, if any, before the AO for demonstrating that debts in question pertain to discounts given by the assessee to the said corporations. He also mentioned that in remand proceedings, the AO can also adjudicate the issue relating to allowing the said debts as business loss. We order accordingly and direct the AO to adjudicate the issue afresh after considering the material placed before him even it means furnishing of additional evidences for the first time before him. Accordingly, ground No.2 is allowed for statistical purposes.
Export promotion expenses - Disallowance of claim of the assessee primarily for want of details - Claim of the assessee that the said amount constitutes reimbursement of expenses - HELD THAT:- We find it relevant to remand this issue also to the file of the Assessing Officer for want of relevant facts. AO shall adjudicate this issue afresh considering the details, if any, filed before him, after giving an opportunity of being heard to the assessee. He shall also consider the orders of the ITAT in the assessee’s own case for other assessment years. This ground is also allowed for statistical purposes.
Nature of expenditure - computer software expenses - HELD THAT:- We find that there is no relevant facts on the record to adjudicate if the said expenditure falls in revenue or capital field. So, all the parameters relating to the nature of capital asset should be brought on record by the AO. It is not clear as to how the ‘crash recovery software’ gives enduring benefits and is capable of yielding income on stand alone basis.
As decided in CIT vs Amway India Enterprises [2011 (11) TMI 4 - DELHI HIGH COURT] has provided certain guidelines to decide on capital or revenue nature of the expenses in software. In the remand proceedings, the Assessing Officer is directed to decide the issue afresh after considering the above cited judgments relating to the issue under consideration and granting the assessee a reasonable opportunity of being heard.
Appeal of the assessee is allowed for statistical purposes.
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2015 (6) TMI 1261
Determination of taxable income - Tribunal reduced the assessed income[deleted majority of the additions] by placing reliance on the additional material filed - Both, the assessee and the Department filed appeals before the High Court in Ku. Pa. Krishnan [2012 (8) TMI 130 - MADRAS HIGH COURT] who inturn found that the Tribunal ought not have gone into the additional evidence, rather should have remitted the matter back to the file of the AO - HELD THAT:- In view of the judgment of the High Court setting aside the order of the Tribunal and remitting back the matter to the file of the Assessing Officer, it is a bounden duty of the Assessing Officer to consider all the additional evidence filed by the assessee and thereafter decide the matter in accordance with law.
Unfortunately, inspite of direction of the High Court, the Assessing Officer has not referred any of the additional evidence filed by the assessee in the impugned assessment order.
As rightly submitted by assessee and the Ld. Sr. Special Public Prosecutor for the Department, AO has not considered the additional evidence filed by the assessee. Therefore, there is a clear violation of the direction issued by the High Court. This Tribunal is of the considered opinion that when the High Court directed the AO to consider the additional evidence, the Assessing Officer has no other option except to consider the additional evidence filed by the assessee and discuss the same in the assessment order by making a reference in respect of each and every additional evidence filed by the assessee and thereafter the Assessing Officer has to pass a speaking order.
Since the direction of the High Court was not complied with and the Assessing Officer failed to consider the additional evidence filed by the assessee, this Tribunal is of the considered opinion that the matter needs to be reconsidered by AO as directed by the High Court. Appeal of the assessee is allowed for statistical purposes.
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