|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1167 Records
-
2012 (7) TMI 1177
The Supreme Court, per Hon'ble Justices D.K. Jain and Madan B. Lokur, after hearing counsel for the petitioner and noting absence of respondent representation, ordered that the delay be condoned and dismissed the Special Leave Petition.
-
2012 (7) TMI 1176
Issues:
- Jurisdiction of the Company Court to pass an order of injunction
- Extension of an order of injunction granted by the Division Bench
- Discretionary power of the trial Judge in extending interim orders
Jurisdiction of the Company Court to pass an order of injunction:
The appellant filed a Company Petition against the respondent for winding up based on the inability to pay debts under specific sections of the Companies Act, 1956. Initially, an order of injunction was granted on certain properties, but later vacated by the Company Court citing lack of jurisdiction to pass injunction orders beyond protecting creditors' interests. The Division Bench ruled that the Company Court has inherent powers to issue interim orders, including injunctions, beyond creditor protection. The Division Bench set aside the order vacating the injunction and directed the Company Court to reconsider the matter. The Division Bench emphasized the Company Court's authority to grant injunctions, leading to the restoration of the earlier injunction order.
Extension of an order of injunction granted by the Division Bench:
After remand, the matter was heard, and the appellant's counsel requested an adjournment due to personal reasons. The trial Judge adjourned the matter without extending the interim injunction, leading to an appeal by the appellant. The appellant argued that the trial Judge's decision not to extend the injunction without providing reasons was against legal principles. The respondent contended that the trial Judge's discretion in not extending the injunction should not be questioned, citing previous judgments. The Division Bench found that the trial Judge's failure to extend the injunction interfered with the appellant's rights conferred by the Division Bench's order. The Division Bench set aside the trial Judge's order and restored the injunction, emphasizing the need for reasons when interfering with established rights.
Discretionary power of the trial Judge in extending interim orders:
The Division Bench highlighted the trial Judge's discretionary power in granting interim orders, emphasizing the need for reasons when not extending an injunction that interferes with established rights. The Division Bench referred to previous judgments outlining considerations for trial Judges in passing interlocutory orders. The Division Bench concluded that the trial Judge's failure to extend the injunction without reasons was improper and directed the Company Court to prioritize deciding the pending applications for injunction and vacating the interim order. The Company Court was requested to expedite the decision within three weeks, emphasizing the importance of providing opportunities to both parties in the proceedings.
-
2012 (7) TMI 1175
Issues Involved:
1. Alleged acts of oppression and mismanagement.
2. Validity of redemption of preference shares.
3. Coerced sale of equity shares.
4. Forced removal from directorship.
5. Sale of shares in violation of agreements.
6. Denial of access to statutory records.
7. Non-sending of notices for board meetings.
8. Alleged statutory violations by the company.
Issue-wise Detailed Analysis:
1. Alleged Acts of Oppression and Mismanagement:
The appellant claimed that the respondents acted in a manner oppressive to his interests and engaged in mismanagement of the company. The appellant argued that the Company Law Board (CLB) failed to properly consider the evidence of oppression and mismanagement. However, the court found that the appellant did not establish any acts of oppression or mismanagement that would justify equitable relief. The CLB's decision was based on the lack of substantive evidence presented by the appellant.
2. Validity of Redemption of Preference Shares:
The appellant contested the premature redemption of his 10% preference shares, arguing it was done without notice or consent. The court noted that the redemption was in the best interest of the company and was applied uniformly to all preference shareholders. The appellant had accepted the redemption proceeds without protest, and no evidence of coercion was presented. Thus, the redemption was deemed valid.
3. Coerced Sale of Equity Shares:
The appellant alleged that he was coerced into selling his equity shares to the sixth respondent. The court found that the appellant had voluntarily offered his shares for sale as per the Shareholders Agreement (SHA) and had accepted the payment without raising any objections at the time. The appellant's claim of coercion was not supported by evidence, and his actions indicated a voluntary sale.
4. Forced Removal from Directorship:
The appellant claimed he was forced to resign from his directorship. The court noted that the appellant had resigned after selling his shares, as stipulated in the SHA. The resignation was part of the agreed terms upon the sale of shares, and the appellant had acknowledged this in his resignation letter. Therefore, the resignation was not considered forced.
5. Sale of Shares in Violation of Agreements:
The appellant argued that the sale of the fourth respondent's shares to respondents 2 and 3 violated the SHA and articles of association. The court found that the appellant had declined to exercise his right to purchase the shares, thereby waiving his claim. The sale was conducted at the agreed price formula, and no evidence of irregularity was found.
6. Denial of Access to Statutory Records:
The appellant claimed he was denied access to the company's statutory records. The court did not find sufficient evidence to support this claim and noted that the appellant had ceased to be a shareholder and director, limiting his rights to access such records.
7. Non-sending of Notices for Board Meetings:
The appellant contended that he was not notified of board meetings. The court found no evidence that the lack of notice caused any prejudice to the appellant. The meetings did not result in decisions that adversely affected the appellant's interests.
8. Alleged Statutory Violations by the Company:
The appellant alleged various statutory violations by the company. The court found that the appellant did not provide substantive evidence to support these allegations. The amended articles of association, incorporating the SHA clauses, were deemed valid and binding.
Conclusion:
The court upheld the CLB's decision, finding no legal infirmity or substantive evidence of oppression or mismanagement. The appellant's claims were dismissed as they were not supported by the material facts or law. The appeals were dismissed, affirming the CLB's order.
-
2012 (7) TMI 1174
The petitioner sought relief from the court against SEBI and Bank of Baroda for unauthorized debit from the petitioner's account. The court ruled that the matter falls under SEBI's jurisdiction and the petitioner should seek remedy through SEBI's procedures. The petition was disposed of with the direction for SEBI to consider the petitioner's complaint and provide a decision within four months.
-
2012 (7) TMI 1173
The petitioner sought relief from the court against SEBI, Bank of Baroda, and others for unauthorized debit from the petitioner's account. The court ruled that the matter falls under SEBI's jurisdiction and the petitioner should seek remedy through SEBI's procedures. The court directed SEBI to consider the petitioner's complaint and make a decision within four months. The petitioner can take further action if unsatisfied with SEBI's decision.
-
2012 (7) TMI 1172
Issues Involved:
1. Rejection of Comparability Analysis by the TPO.
2. Deletion of ALP Adjustment by CIT(A).
3. Inclusion of Controlled Transactions in Comparability Analysis.
4. Transfer Pricing Adjustment on Reimbursement of Expenses.
5. Internal Comparable Transactions for ALP Determination.
Issue-wise Detailed Analysis:
1. Rejection of Comparability Analysis by the TPO:
The TPO rejected the external comparables provided by the assessee on the grounds that they were functionally different from the assessee. The CIT(A), however, found that the TPO had committed factual errors by rejecting some companies as 'persistent loss-making companies' and not considering the use of segmental data by the appellant. The CIT(A) concluded that the TPO's rejection was not proper, and most of the companies selected by the assessee could be taken as comparables for the purposes of transfer pricing analysis.
2. Deletion of ALP Adjustment by CIT(A):
The CIT(A) deleted the ALP adjustment of Rs. 8,42,54,187 made by the AO, holding that the TPO erred in selecting ICBC as a valid comparable. The CIT(A) noted that ICBC was functionally dissimilar and had significant related party transactions, which made it inappropriate for benchmarking. The CIT(A) found that the assessee's transactions with its AEs were at arm's length based on external comparables.
3. Inclusion of Controlled Transactions in Comparability Analysis:
The TPO included the transactions of ICBC, a wholly-owned subsidiary of the assessee, with JTS Contracting Co., an AE, as a comparable. The CIT(A) rejected this inclusion, stating that the transactions between ICBC and JTS were related party transactions and could not be considered at arm's length. The Tribunal upheld the CIT(A)'s view that controlled transactions cannot be used for benchmarking under the TNMM.
4. Transfer Pricing Adjustment on Reimbursement of Expenses:
The assessee challenged the addition of Rs. 85,18,813 made by the TPO on account of a 5% mark-up on reimbursement of expenses received from its AEs. The CIT(A) upheld the addition, reasoning that the assessee could not waive the mark-up recoveries at will. The Tribunal agreed with the CIT(A) but directed the AO to recompute the ALP adjustment based on the agreed mark-up costs which were not recovered by the assessee.
5. Internal Comparable Transactions for ALP Determination:
The Tribunal addressed whether internal comparable transactions with an AE, found and accepted at ALP, could be used as a benchmark for other international transactions with different AEs. The Third Member concluded that such internal comparables could not be used if they involved controlled transactions. The ruling emphasized that ALP must be determined by comparing with uncontrolled transactions, as per the statutory provisions.
Conclusion:
The Tribunal dismissed the appeal filed by the AO and partly allowed the appeal filed by the assessee for statistical purposes. The cross-objection by the assessee was dismissed as infructuous. The Tribunal emphasized the importance of using uncontrolled transactions for determining ALP and upheld the CIT(A)'s decision to exclude controlled transactions from comparability analysis.
-
2012 (7) TMI 1171
Issues:
Challenge to acquittal under Section 138 of the Negotiable Instruments Act, 1881.
Analysis:
1. The judgment deals with a leave to appeal challenging an acquittal under Section 138 of the Negotiable Instruments Act, 1881. The appellant had provided a friendly loan to the respondent, who issued a cheque that was dishonored due to insufficient funds. The respondent made part payments to the appellant, but a legal demand notice was issued demanding the full amount. The trial court accepted the respondent's defense that the payments were made against a different transaction, not the loan in question.
2. The trial court found that the complainant failed to establish the advancement of the loan and the nature of the other transaction against which the payment was made. The court emphasized that the legal demand notice was invalid due to the partial payments made by the respondent. The court held that the burden of proof shifted to the complainant, who failed to provide sufficient evidence to support the case.
3. The judgment highlights the principles regarding appellate courts' powers in dealing with appeals against acquittals. It emphasizes that an appellate court should not interfere with an acquittal unless there are substantial and compelling reasons to do so. The presumption of innocence is reinforced by an acquittal, and the appellate court should not disturb the trial court's findings unless there are strong reasons to do so.
4. The Supreme Court's decisions in similar cases underscore the importance of not interfering with acquittals unless there are substantial reasons to do so. The appellate court must review the evidence thoroughly and should only reverse an acquittal if the trial court's judgment is found to be perverse. The presumption of innocence must be upheld, especially when dealing with judgments of acquittal.
5. In this case, the court found that the appellant failed to provide sufficient evidence to support the claim against the respondent. The trial court's reasoning was found to be sound, and there were no compelling reasons to interfere with the acquittal. Therefore, the petition challenging the acquittal was dismissed for lack of merit.
This detailed analysis of the judgment provides a comprehensive understanding of the legal issues involved and the court's reasoning in reaching its decision.
-
2012 (7) TMI 1170
Issues:
1. Allowability of deduction u/s. 54B amounting to Rs. 16,21,205.
Detailed Analysis:
The appeal was filed by the Revenue against the order of the CIT(A) regarding the allowability of deduction u/s. 54B amounting to Rs. 16,21,205. The Assessee, engaged in the medical profession, declared total income of Rs. 2,50,979/- and agricultural income of Rs. 2,20,442/- for A.Y. 2007-08. The Assessing Officer assessed the income at Rs. 35,73,781/- by adding long term capital gains of Rs. 33,22,802. The CIT(A) granted relief to the assessee based on the claim that the time allowed for making investment for purchasing agricultural land without depositing the amount in a specified bank under the capital gain scheme is until the filing of the return of income u/s. 139(4). The CIT(A) held the appellant eligible for deduction u/s. 54B to the extent of Rs. 16,21,205, confirming the addition made by the A.O. to the extent of Rs. 17,01,597 and deleting it to the extent of Rs. 16,21,205.
The Revenue opposed the decision, arguing that the assessee's claim regarding the time allowed for making the investment for purchasing agricultural land without depositing the amount in a specified bank is until the filing of the return of income u/s. 139(4) is supported by legal precedents. The assessee had purchased agricultural land before 31.03.2009, well within the stipulated time frame. The Assessing Officer contended that the assessee is entitled to benefit under section 54B only after investing within the limit prescribed under section 139(1) of the Act. The provisions of section 54B were examined, emphasizing the requirement to deposit the capital gain not utilized for the new asset before furnishing the return of income under section 139. The CIT(A) decision was supported by the Hon'ble Guwahati High Court's ruling in CIT vs. Rajesh Kumar Jalan, emphasizing the need to interpret statutes to ascertain lawmakers' intentions effectively.
The CIT(A) was justified in granting relief to the assessee based on the interpretation of the provisions of section 54B(2) and section 139(4). The decision was further supported by the ITAT Bangalore Bench's ruling in Nipun Mehrotra. The identically worded provisions of sections 54F(4), 54B(2), and 54(2) were considered, and the decision of the CIT(A) was deemed appropriate without requiring any interference. The appeal filed by the Revenue was dismissed, citing the inapplicability of the case of Taranbir Sinh Sawhney vs. DCIT to the present case, leading to the confirmation of the CIT(A)'s decision in favor of the assessee.
-
2012 (7) TMI 1169
Issues Involved:
1. Whether the cheque issued as security can attract liability under Section 138 of the Negotiable Instruments Act.
2. Whether the complaint under Section 138 is maintainable when the cheque was issued as security and not for discharge of any debt or liability.
3. The applicability of statutory presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.
4. The necessity for the petitioner to disprove the evidence led by the respondent.
Detailed Analysis:
1. Cheque Issued as Security and Section 138 Liability:
The petitioner argued that the cheque in question was issued solely as security and not towards any lawful outstanding debt or dues. They relied on the case of *M.S. Narayana Menon @ Mani v. State of Kerala and Anr.*, where the Supreme Court held that if a cheque is issued for security or any other purpose, it does not come within the purview of Section 138 of the Act. Similarly, in *Sudhir Kumar Bhalla v. Jagdish Chand and Ors.*, the Apex Court observed that criminal liability under Section 138 is attracted only on account of the dishonor of cheques issued in discharge of liability or debt, not on account of issuance of security cheques.
2. Maintainability of Complaint under Section 138:
The respondent contended that the cheque initially issued as security became a cheque for enforceable debt when the petitioner failed to pay the debt. They cited the case of *I.C.D.S. Ltd. V. Beena Shabeer and Anr.*, where it was held that the language of Section 138 includes cheques issued for any debt or other liability. The respondent argued that the petitioner had to disprove the evidence led by them, and in the absence of such disproof, the complaint was maintainable.
3. Statutory Presumptions under Sections 118(a) and 139:
The court discussed the statutory presumptions under Sections 118(a) and 139, which presume that every negotiable instrument was made for consideration and that the holder of a cheque received it for the discharge of any debt or other liability. The respondent relied on *MMTC Ltd. and Anr. V. Medchi Chemicals & Pharma (P) Ltd. and Anr.*, where it was held that the burden of proving no existing debt or liability lies on the accused, which they must discharge during the trial.
4. Petitioner's Burden to Disprove Evidence:
The respondent emphasized that the petitioner had to prove in the trial that they did not owe any dues to the respondent. They referred to *Lok Housing & Constructions Ltd. V. Raghupati Leasing & Finance Ltd.*, where it was held that the presumption is in favor of the holder of the cheque, and the accused must disprove the existence of debt or liability.
Conclusion:
The court concluded that the cheque in question, although initially issued as security, became enforceable due to the petitioner's failure to pay the debt. The statutory presumptions under Sections 118(a) and 139 were applicable, and the burden of disproving the existence of debt or liability lay on the petitioner. The court found no merit in the petitioner's arguments and dismissed the petition, affirming the maintainability of the complaint under Section 138 of the Negotiable Instruments Act. The interim order was vacated, and the petition was dismissed with no orders as to costs.
-
2012 (7) TMI 1168
Issues involved: Challenge to order of Income Tax Appellate Tribunal u/s 260A of the Income-tax Act, 1961 for assessment year 2005-06.
Summary:
1. The appellant-assessee challenged the order of the Income Tax Appellate Tribunal (ITAT) which partly allowed the appeal for the assessment year 2005-06.
2. The assessing officer passed an assessment order u/s 143(3) assessing income at Rs. 42,68,450, against the returned income of Rs. 1,45,828. The appellant-assessee appealed to the Commissioner (Appeals) and then to the ITAT, which partly allowed the appeal.
3. The appellant argued that the trading addition of Rs. 12,29,950 and another addition of Rs. 6,40,500 were not justified due to lack of evidence and denial of the right to cross-examine a witness.
4. The High Court noted that for an appeal u/s 260A, there must be a substantial question of law. The issues in this case were factual, not legal. The ITAT had thoroughly considered the trading addition issue and the appellant had sufficient opportunity to explain, so no violation of natural justice occurred.
5. The High Court found no merit in the appeal as it did not involve any substantial question of law. The appeal was dismissed.
This judgment highlights the importance of substantial questions of law for appeals u/s 260A and emphasizes the need for proper evidence and opportunities for explanation in tax assessment cases.
-
2012 (7) TMI 1167
Issues involved: Whether stamp duty can be collected on increased authorized share capital u/s Indian Stamp (Delhi Amendment) Act, 2007.
Judgment Summary:
Issue 1: Stamp Duty on Increased Authorized Share Capital
1. The appeal challenged a judgment regarding the collection of stamp duty on increased authorized share capital under the Indian Stamp (Delhi Amendment) Act, 2007.
2. The company increased its authorized share capital from Rs. 3.50 crores to Rs. 125 crores, leading to a dispute over stamp duty payment.
3. The court analyzed Article 10 of Schedule IA of the Act, noting a deficiency in its wording regarding stamp duty calculation.
4. It was observed that the stamp duty payable on the Articles of Association of a company should be 0.15% of the authorized share capital, subject to a monetary ceiling of Rs. 25 lakhs.
5. The court found no provision in the Act permitting levy of stamp duty on the increase in authorized share capital, emphasizing strict construction of fiscal statutes.
6. Comparison with other states showed the necessity of specific statutory provisions for imposing stamp duty on increased authorized share capital.
7. The court highlighted the absence of such a provision in Delhi's Stamp Act, requiring an amendment to authorize stamp duty on increased authorized share capital.
8. Ultimately, the appeal was dismissed, upholding the judgment that no legal basis existed for imposing stamp duty on increased authorized share capital without a specific statutory provision.
-
2012 (7) TMI 1166
Issues Involved:
1. Quashing of the order dated 28.7.2011.
2. Registration of FIR on the complaint dated 12.10.2010.
3. Transfer of investigation to an independent agency.
4. Keeping the complaint No. 780/10 in abeyance before the Disciplinary Committee.
5. Locus standi of the applicants/interveners.
Summary:
Issue 1: Quashing of the order dated 28.7.2011
The petitioner sought to quash the order dated 28.7.2011 passed by the learned Magistrate, which directed the Delhi Medical Council to expedite the proceedings and file its opinion regarding medical negligence. The court held that even if this part of the impugned order is set aside, it would not bring any relief to the petitioner because the earlier order directing the constitution of a medical Board by the Delhi Medical Council for obtaining a medical opinion still remains on record. The court emphasized the necessity of obtaining a fresh opinion from the Board duly constituted by the Delhi Medical Council, as per the guidelines laid down in Jacob Mathew's case.
Issue 2: Registration of FIR on the complaint dated 12.10.2010
The petitioner sought a direction to register an FIR based on her complaint dated 12.10.2010. The court referred to authoritative judgments stating that if a person is aggrieved by non-registration of an FIR, the appropriate remedy is to approach the SP or DCP u/S 154(3) Cr.P.C. or file a complaint u/S 200 Cr.P.C. The court held that a direction to register an FIR cannot be issued by the High Court in such cases, and thus, this prayer was not maintainable.
Issue 3: Transfer of investigation to an independent agency
The petitioner sought to transfer the investigation to an independent agency. The court held that since the prayer for registration of an FIR was not maintainable, there was no question of transferring the investigation. Therefore, this prayer was also not maintainable.
Issue 4: Keeping the complaint No. 780/10 in abeyance before the Disciplinary Committee
The petitioner sought a direction to keep her complaint pending before the Disciplinary Committee in abeyance. The court found that this issue was not encompassed before the learned Magistrate and hence could not be the basis of challenge before the High Court. The court noted the petitioner's multiple legal actions against the doctors and emphasized that the petitioner's actions appeared to be a witch hunt against the doctors.
Issue 5: Locus standi of the applicants/interveners
The petitioner challenged the locus standi of the applicants/interveners. The court held that in cases where the complainant approaches the High Court u/S 482 Cr.P.C. seeking adverse orders against the respondent/accused, it is appropriate to give a right of hearing to the accused. The court noted that the applicants/interveners were within their rights to assist the court in presenting a clearer picture, especially in light of the guidelines laid down in Jacob Mathew's case for prosecuting medical professionals.
Conclusion:
The court dismissed the petition, upholding the order dated 28.7.2011, and permitted the Delhi Medical Council to complete the process of obtaining and approving the medical opinion from the Board. The court emphasized that the learned Magistrate should act in accordance with the law, uninfluenced by any observations made in this judgment.
-
2012 (7) TMI 1165
Issues involved: Appeal against acquittal under Section 138 of the Negotiable Instruments Act.
Issue 1: Facts of the case and acquittal by the Special Judge
The appeal was filed against the acquittal of the respondents by the Judicial Magistrate, FC for an offence under Section 138 of the Negotiable Instruments Act. The appellant, a registered company, claimed that an amount was outstanding against the accused, and a cheque issued by the accused was dishonored due to insufficient funds. The complainant filed a complaint under Section 138 of the Act. The Special Judge, after hearing both parties and considering the evidence, dismissed the complaint and acquitted the accused.
Issue 2: Arguments of the respective parties
The counsel for the appellant argued that the defense of the accused, claiming they did not sign the cheque and it was for security, was not accepted by the trial court. Therefore, the accused should have been convicted under Section 138 of the Act. On the other hand, the counsel for the accused supported the acquittal, citing documentary proof that the cheque was issued as security. The accused denied their signature on the cheque and claimed the case was false.
Issue 3: Legal principles and case laws
The legal position emerging from cited case laws included aspects such as the authority to fill in blank cheques, liability of guarantors, presumption of legally enforceable debt, and the standard of proof required to rebut such presumption. The silence of the accused in response to statutory notice was considered a strong circumstance, and the conditions for presenting a cheque within the validity period were outlined.
Issue 4: Secondary evidence application and judgment
The complainant had applied for permission to lead secondary evidence as the original cheque was misplaced. The application was allowed by the Special Judge without proper affidavit support. The judgment highlighted the necessity for full details and proper affidavit support for secondary evidence applications. The Court emphasized the importance of natural justice and fair play in such proceedings. Ultimately, the trial court's decision was upheld, and the appeal was dismissed.
This summary provides a detailed overview of the judgment, including the facts of the case, arguments presented by the parties, relevant legal principles, and the handling of the secondary evidence application leading to the final judgment.
-
2012 (7) TMI 1164
Issues involved: Assessment of turnover for presumptive tax payment u/s 6(5) of the Kerala Value Added Tax Act, 2003 for the years 2006-07, 2007-08, and 2008-09.
Assessment Years 2006-07 and 2007-08:
- The dealer, a seller of ice creams, opted for presumptive tax payment u/s 6(5) for turnover below Rs.50 lakhs.
- Assessing authority found suppressed purchase turnover, leading to denial of presumptive tax benefit and assessment u/s 6(1).
- First appellate authority and Tribunal reduced additional turnover to 1.5 times and 25% of suppressed turnover, respectively.
Questions of Law Raised:
1. Whether authorities erred in making arbitrary additions post-compounding of offense u/s 74 of the KVAT Act.
2. Whether authorities were justified in making additions exceeding actual suppression.
3. Whether authorities were justified in adding gross profit without justification.
Post-Compounding Assessment:
- Composition of offense u/s 74 does not exempt assessment proceedings.
- Best judgment assessment for evasion is discretionary and not a penalty.
- Assessee's attempt to claim exemption based on reductions by appellate authorities rejected.
Additions and Gross Profit:
- Pattern of suppression evident in 2006-07 and 2007-08.
- Appellate reductions considered discretionary, not exempting from additions.
- Gross profit addition necessary for multiple sales, based on assessee's concessions.
Conclusion:
- Revision petitions dismissed, upholding Tribunal's orders.
- Concern raised over incorrect tax imposition post-presumptive tax denial.
- Act's provisions not followed in tax assessment, indicating legislative intent deviation.
This summary provides a detailed overview of the judgment, including the issues involved, assessment details for each year, questions of law raised, explanations on post-compounding assessment, additions made, and the final conclusion of the court.
-
2012 (7) TMI 1163
Issues involved:
The legal issues involved in this judgment are related to the validity of reassessment proceedings u/s 147/148 of the Income-tax Act, 1961 without serving notice u/s 143(2) of the Act during the pendency of reassessment proceedings.
Details of the Judgment:
Issue 1: Validity of reassessment proceedings without serving notice u/s 143(2) of the Act
- The assessee raised the legal issue that no notice u/s 143(2) of the Act was served during the reassessment proceedings u/s 147/148 of the Act.
- The Tribunal found that the AO had not issued notice u/s 143(2) of the Act, which was a mandatory requirement for framing the assessment.
- Citing the decision in the case of Sheela Chopra Vs. ITO, the Tribunal held that the absence of notice u/s 143(2) rendered the reassessment proceedings invalid.
- Referring to the decision in ACIT vs Hotel Blue moon, the Tribunal emphasized the mandatory nature of issuing notice u/s 143(2) for framing assessments.
- The Tribunal also highlighted the decision of the Hon'ble Madras High Court in the case of CIT vs C. Palaniappan, which supported the necessity of serving notice u/s 143(2) for reopening assessments u/s 147/148 of the Act.
- Based on the legal precedents and the absence of notice u/s 143(2), the Tribunal quashed the reassessment proceedings as being without jurisdiction.
Conclusion:
- The Tribunal allowed the Cross Objection of the assessee, leading to the dismissal of the revenue's appeal as infructuous.
- Consequently, the reassessment proceedings were quashed due to the absence of notice u/s 143(2) of the Act, and the assessee's Cross Objection was allowed.
- The appeal of the revenue was dismissed, and the order was pronounced in the open court on 31.07.2012.
-
2012 (7) TMI 1162
Issues involved: Interpretation of provisions of Income-tax Act, 1961, specifically u/s 50-C, 55-A, and 132(1)(iib); consideration of fair market value of assets; admissibility of electronic records seized during search and seizure.
Interpretation of Section 50-C:
The Supreme Court directed the Authority to consider the case of the assessee as per the arguments presented regarding the application of Section 50-C of the Income-tax Act, 1961. The Court questioned whether the impugned order failed to apply the relevant statutory provisions of the Act, including Section 50-C, and whether the valuation adopted by the stamp valuation authority should be considered as the full value of consideration for computation of capital gains. It was also raised whether the Assessing Officer's acceptance of property valuation stated in Sale Deeds without reference to a valuation officer was legally acceptable.
Mandatory Provisions of Section 50-C:
The Court examined whether the impugned order of remand failed to address and apply the mandatory provisions of Section 50-C, leading to patent illegality and material irregularity. It was questioned whether the legislative intention behind Section 50-C was to equate the value of land/building assessed by the stamp valuation authority for stamp duty purposes with the value for computing capital gains under Section 48.
Role of Assessing Officer and Valuation Officer:
The judgment considered whether the Assessing Officer should have sought guidance solely from the value assessed by the stamp valuation authority, especially when the registering authority had not followed the proper stamp duty procedures. Additionally, the Court deliberated on whether Section 55-A empowered the assessing authority to refer to a Valuation Officer for determining the fair market value of the asset based on various circumstances and evidence.
Admissibility of Electronic Records:
The Court analyzed whether the provisions of Section 132(1)(iib) required a threshold determination of the admissibility and legitimacy of electronic data seized from a computer, in accordance with the Evidence Act and Information Technology Act, before raising presumptions or using such data against the assessee. The special leave petitions were disposed of accordingly by the Supreme Court.
-
2012 (7) TMI 1161
Issues Involved:
1. Validity of Look Out Circular (LOC) against the petitioner.
2. Petitioner's rights under Indian and International law.
3. Restrictions on the movement of foreigners in India.
Summary:
1. Validity of Look Out Circular (LOC) against the petitioner:
The petitioner, a Sri Lankan national, sought the removal of the LOC issued against him, which hindered his smooth departure and arrival at Chennai Airport. The respondents argued that the petitioner had committed visa violations by overstaying and using a tourist visa for studies. The LOC was issued due to these violations and his involvement in serious criminal cases. The court noted that LOCs are issued to trace absconding criminals and monitor the entry or exit of persons required by law enforcement authorities. The statutory backing for LOC issuance is found in the Passport Act, 1967, and Section 41 of Cr. P.C.
2. Petitioner's rights under Indian and International law:
The petitioner contended that the LOC violated his human rights, citing the Supreme Court judgment in Maneka Gandhi v. Union of India and the Universal Declaration of Human Rights (UDHR). However, the court highlighted that Article 19 of the Indian Constitution, which includes the right to move freely, applies only to Indian citizens and not to foreigners. The Supreme Court in Hans Muller of Nuremberg v. Supdt., Presidency Jail, Calcutta, and State of Arunachal Pradesh v. Khudiram Chakma, held that foreigners do not have the same rights as Indian citizens under Articles 19(1)(d) and (e). The court also referenced the judgment in Gobind v. State of Madhya Pradesh, emphasizing that even the right to privacy for Indian citizens is not absolute.
3. Restrictions on the movement of foreigners in India:
The court noted that the Central Government has the authority to impose restrictions on the movement and residence of foreigners in India u/s 11 of the Foreigners Order, 1948, and the Registration of Foreigners Act, 1939. The petitioner, being a foreigner, is subject to these restrictions. The court concluded that the LOC issued against the petitioner was a form of surveillance by the government and did not violate his rights under Indian law or international conventions.
Conclusion:
The court dismissed the writ petition, stating that the petitioner did not make a case for the withdrawal of the LOC. The petitioner's rights as a foreigner are subject to the restrictions imposed by the Central Government, and the LOC was justified based on his past visa violations and criminal involvement. The court emphasized that the LOC serves as a necessary measure for law enforcement and public order.
-
2012 (7) TMI 1160
Issues Involved:
1. Whether the nature of the dispute was civil or criminal.
2. Whether the action by the respondent was initiated with mala fide intention.
3. Whether the allegations in the complaint and the consequent FIR make out a criminal case against the petitioners.
Summary:
1. Nature of the Dispute:
The primary issue was whether the dispute was of a civil nature or a criminal offense. The court observed that the dispute between the parties was essentially civil, arising from a Joint Venture Agreement and subsequent disagreements. The court cited several judgments, including *M/s. Indian Oil Corporation Vs. NEPC India Ltd.* and *V.Y. Jose & Anr. Vs. State of Gujarat & Anr.*, emphasizing that civil disputes should not be converted into criminal cases to exert pressure on the opposing party. The court concluded that the complaint and FIR were attempts to convert a civil dispute into a criminal one, thus deserving quashing.
2. Mala Fide Intention:
The court examined whether the respondent's actions were motivated by mala fide intentions. Although allegations of mala fides were made, the court noted that the petitioners failed to provide prima facie evidence to establish such intentions. The court referred to the judgment in *State of Bihar Vs. P.P. Sharma, IAS & Anr.*, highlighting the need for concrete evidence to prove mala fide actions.
3. Prima Facie Criminal Case:
The court analyzed whether the allegations in the complaint and FIR constituted a criminal offense under various sections of the IPC. The court found that the essential ingredients of the offenses, such as theft (Section 381), dishonest misappropriation of property (Section 403), criminal breach of trust (Sections 405 and 406), cheating (Sections 417, 419, and 420), conspiracy (Section 120-B), and defamation (Section 500), were not satisfied. The court emphasized that the relationship between the parties did not involve entrustment or dishonest intention at the inception of the transaction. The court cited relevant judgments, including *Ira Juneja & Anr. Vs. State and Anr.* and *Velji Raghavji Patel Vs. State*, to support its findings.
Conclusion:
The court concluded that the invocation of Section 156(3) Cr. P.C. by the complainant was a gross abuse of the process of law, as the dispute was civil in nature and did not constitute a criminal offense. The court exercised its power u/s 482 Cr. P.C. to quash Complaint No. 507/2001 and FIR No. 411/2004, along with the consequent proceedings. The parties were directed to bear their respective costs.
-
2012 (7) TMI 1159
Issues involved: Appeal against order of Ld. CIT (A) for assessment year 2007-08 regarding capital contribution received from new Members.
Summary:
The appeal was filed by the assessee against the order of the Ld. CIT (A)-I, Baroda for the assessment year 2007-08. The main issue was the capital contribution received from new Members amounting to Rs.29,89,033/-. The assessee, engaged in the business of conveyance of industrial effluent and channel maintenance, had filed its return of income showing a loss. The Assessing Officer (A.O.) observed that the assessee had received capital contribution from new members for a lifetime membership for effluent disposal facility. The assessee treated the receipts as deferred income spread over 5 years, while the A.O. treated the entire contribution as a revenue receipt. The Ld. CIT (A) confirmed the addition made by the A.O. based on a previous decision for an earlier year. The assessee then appealed to the Appellate Tribunal.
The Appellate Tribunal noted that in the assessee's own case for a previous year, it was held that the assessee was justified in deferring the revenue for tax for 4 years. Since there was no change in facts compared to earlier years, the Tribunal held that the assessee was justified in deferring the revenue over 4 years. Consequently, the Tribunal allowed the ground of the assessee and the appeal was allowed in favor of the assessee.
In conclusion, the Appellate Tribunal, in the case of the assessee's appeal against the order of the Ld. CIT (A) for the assessment year 2007-08 regarding capital contribution received from new Members, held in favor of the assessee based on the principle of deferring revenue over 4 years as justified in the previous year's decision.
-
2012 (7) TMI 1158
Issues involved: Appeal against orders passed by Ld. Commissioner of Income-tax (Appeals)-VIII, Ahmedabad for assessment years 2007-08 and 2008-09.
ITA No.651/Ahd/2012 for A.Y. 07-08:
The Revenue challenged the deletion of deduction u/s. 36(1)(va) and disallowance of interest. The assessee made late deposits of employees' contributions and provided interest-free advances. The Ld. CIT(A) partly allowed the appeal. The Tribunal considered the judgment of Hon'ble Delhi High Court in CIT v. Aimil Ltd (2010) 321 ITR 508 (Del) regarding late deposits. The Tribunal upheld the Ld. CIT(A)'s decision, stating that the Act permits delayed deposits with consequences. Regarding interest disallowance, the Tribunal noted the availability of interest-free funds for advances and relied on the judgment of Hon'ble Bombay High Court in CIT v. Reliance Utilities & Power Ltd. 313 ITR 340 (Bom). The Tribunal dismissed the Revenue's appeal.
ITA No.652/Ahd/2012 for A.Y. 08-09:
The Revenue contested the deletion of interest disallowance. The Tribunal noted a similar issue in the previous appeal and upheld the Ld. CIT(A)'s decision. The Tribunal dismissed the Revenue's appeal.
In conclusion, both appeals of the Revenue were dismissed by the Tribunal.
........
|
9911796707
