Denial of benefit of area based exemption under N/N. 50/2003-C.E., dated 10-6-2003 - exemption contested due to the omission of Khasra No. 130M, constituting 0.90% of the total factory area, from the notification - HELD THAT:- It is not a disputed fact that all 8 khasras are adjacent where the unit was established. It is not necessary that every inch of the land will be utilized for installation of machines. There may be some area left free and open. Notification did not cover Khasra No. 130M which is only 0.0030 hectare. It means that this covered only 0.90 per cent of the total area of the factory plot which is negligible. When it is so, then the benefit of area based exemption cannot be denied specially when plots are adjacent and not separated.
In view of the above, the impugned demand set aside and the appeal filed by the appellant is allowed.
Non grant of registration u/s 12A (a) - no charitable activity was ever carried out by the trust upto 31.3.2008 - ITAT allowed claim/registration - HELD THAT:- We are of the view that observations made by the Tribunal that Commissioner cannot comment about genuineness of its activity and he has not pointed out any defect in the clauses of the trust deed. The activity will be carried out only after the trust is registered.
We are in complete agreement with the view taken by the Tribunal. The issue is answered in favour of the assessee.
Constitutional validity of sections 3 and 4 of the Andhra Pradesh Tax on Entry of Goods into Local Areas Act of 2001, together with the notifications issued thereunder challenged - it was held by High Court that 'clearly the impugned law amounts to impeding the freedom of movement of trade or commerce across the territory of the nation. Further, it is admitted that the procedure prescribed to obtain the sanction of the President has not been obtained prior to enacting the impugned Entry Tax Act. Therefore, no hesitation to declare the impugned levy as unconstitutional.'
HELD THAT:- Since the appeals were filed by the State and it is the State which was the appellant and, therefore, it was wrongly mentioned that the appellants are given time to file the fresh petition by 31st May, 2017 instead it should have been the respondents. Therefore, it is clarified that instead of appellants, the respondents are permitted to file fresh petition(s) before the respective High Court(s) by August 15, 2017.
Likewise, the interim orders which were passed by this Court and which are continued in these appeals shall continue till August 15, 2017.
Waiver of pre deposit - rent-a-cab operating services for use by an educational body - SEZ - benefit of Notification would not be available under Notification No.4/2004-ST dated 31.03.2004, which was superseded by Notification No.9/2009-ST dated 03.03.2009 and further superseded by Notification No.17/2011-ST dated 13.03.2011 - Held that:- Rent a cab service is an approved service for the unit located in SEZ. Accordingly, it appears that such service is wholly exempted being provided to the SEZ unit premises. So far the services provided to Educational Institute is concerned though a part of it is provided to another transporter, similarly situated, under the agreement to share mutual spare capacity, it appears that as the services are admittedly provided for transport of staff and student of the schools, the same appears to be permitted exemption/not taxable under the definition in Clause 65 (20) of the Finance Act, 1994. In view of the said proviso, provided under rent-a-cab operating services for use by an educational body imparting skill or knowledge or lesson on any subject or field, other than a commercial training or coaching centre, are not includible in the meaning of "cab" and hence not taxable in the "rent-a-cab operator service". Thus we find that the appellants have made out a prima-facie case for grant of stay. Accordingly, we grant the stay for demand of duty and tax, interest and penalty till disposal of appeal - Stay granted.
'Commercial Establishments or Complexes' under the Wealth Tax Act, 1957 - ITAT held that the properties of Assessee at Connaught Circus, New Delhi and Sardar Mohan Singh Building, Connaught Lane, New Delhi were 'Commercial Establishments or Complexes' and therefore outside the purview of 'assets' under Section 2 (ea) (i) (5) of the Wealth Tax Act, 1957 (WTA)? - HELD THAT:- The Court is unable to agree with the above submission. It is obvious from a reading of the entire Section 2 (ea) WTA that the legislative intent was not to restrict the benefit of exemption any particular type of commercial establishments or complexes. By reading such a restrictions into the said clause, the Court would be writing into Section 2 (ea) WTA something which is not there.
Bombay Bench of ITAT has sought to suggest that a commercial establishment means a building comprising more than one establishment meant for commercial purpose and having the infrastructure and ancillary facilities and establishments such as banking, financial institution, supermarket, bar etc. The Court is unable to find any such qualification attaching to the expression 'Commercial Establishments or Complexes' in Section 2 (ea) (i) (5) of the WTA.
This Court concurs with the above view of the Gujarat High Court in Vasumati Ben Chhaganlal Virani [2013 (9) TMI 957 - GUJARAT HIGH COURT] as regards the interpretation of Section 2 (ea) (i) (5) WTA. Therefore, we find that the impugned order of the ITAT does not suffer from any legal infirmity.
Refusal to credit third-party remittance for export - inability to credit in the account of the petitioner - interpretation of Circular Nos.70 dated 08.11.2013 and 100 dated 04.02.2014 issued by the RBI - HELD THAT:- On conjoint reading of the aforementioned circulars, it is beyond doubt that even RBI guidelines are not absolute embargo existed on the receipt of the third party payment against export made from India as the conditions were imposed only on 08.11.2013 which were relaxed after few months, i.e., on 04.02.2014. The whole purpose of issuing the circular as spelled out is to ensure the remittances against the export received by the exporters, much less to promote the international business and permit third party payments, in case, where the exports are made.
There is no ambiguity “before or after” between the period 08.11.2013 to 04.02.2014, thus, for all intents and purposes, the exports made before and after the aforementioned period, the conditions stipulated in the Circular dated 08.11.2013 cannot be insisted and the Banks are obliged to issue certain BRCs, in case of third party payments.
In the instant case, the export is evident from the shipping bills presented to the customer authorities, (Annexure P-1 (collectively) at page 22 of the paper book. The third party rights are received by SWIFT message which clearly stated that remittance is being made towards Invoice bearing No. AC/159/16-17/2016 issued to the petitioner by the buyer and vide e-mail dated 23.03.2017, it has been clarified to the petitioner that remittance has been made on their behalf - The BRC issued by the bank based on realization of payment of export by the exporter and the action of the Bank, in such circumstances is totally un-called for. In my view, the Bank should have honoured the remittance.
The writ petition is disposed of with a direction to respondent No.2-Bank to issue credit confirmation, BRC towards the third party remittance received by the petitioner within a period of one month from today.
Enforcement of the partial award and the final award - Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 - Jurisdiction of Arbitral Tribunal under Clause 8 of the Agreement to arbitrate the disputes - termination of agreement by the Respondent by notice in July 2003 - amount of monthly payments on account due to the Claimant - amount of commission which the Claimant is entitled to.
Whether the part of the clause requiring the disputes to be submitted to SIAC was severable from the remaining clause? - HELD THAT:- It is well settled that the doctrine of severability or the Blue Pencil Rule is applicable where a part of the contract, which is void or unenforceable, can be severed from the main contract without affecting the substantial agreement between the parties - In the present case, it cannot be disputed that the parties had agreed (a) that their disputes shall be resolved by arbitration; (b) that the arbitration shall be conducted under the ICC Rules; (c) that it shall be conducted by an arbitral tribunal constituted by three arbitrators appointed in accordance with the ICC Rules; (d) the venue of the arbitration would be Singapore; and (e) that the arbitral award would be final and binding on the parties. The aforesaid constitutes the quintessential agreement between the parties. The invalidity or unworkability of the part of the clause that provides for the disputes to be submitted to SIAC would not render the entire arbitration agreement (arbitration clause) void.
In Enercon (India) Ltd & Ors. v. Enercon GMBH & Anr [2014 (2) TMI 1170 - SUPREME COURT], the Supreme Court had observed that "when faced with a seemingly unworkable arbitration clause, it would be the duty of the court to make the same workable within the permissible limits of the law, without stretching it beyond the boundaries of recognition".
The party against whom a foreign award is sought to be enforced is to be provided full opportunity to provide evidence to show that the arbitral tribunal lacked the jurisdiction to make the foreign award - In Shin-Etsu Chemical Co. Ltd. [2005 (8) TMI 622 - SUPREME COURT], the Supreme Court held that a finding regarding an arbitration agreement rendered under Section 45 of the Act would only be a prima facie finding and would not preclude a full examination at the post award stage. There can be no quarrel to this proposition. However, the onus to prove that the arbitral tribunal lacked jurisdiction or that any of the other grounds as set out under Section 48(1) of the Act are attracted, lies squarely on a party challenging the enforcement of the foreign award. Thus, ZTE was required to provide all material necessary for establishing that enforcement of the impugned awards ought to be declined as the arbitral proceedings were not in accordance with the Agreement.
Whether the impugned awards are void on account of alleged fraud committed by VAS? - HELD THAT:- The fulcrum of the contention rests on the failure of VAS to disclose that its name was struck off the Register of Companies by the ROC - Admittedly, VAS did not disclose to the arbitral tribunal that its name had been struck off the Register of Companies and it stood dissolved on 03.02.2007. VAS had fairly conceded that its Board of Directors had acted on an erroneous understanding, as on one hand, VAS was pursuing the arbitration proceedings, and on the other hand, VAS had also applied for its name to be struck off the Register of Companies. Mr Jeevesh Nagrath contended that the Directors of VAS had proceeded on the basis that they could pursue the arbitral proceedings, which had already commenced.
Any allegation of deceit and fraud must necessarily be considered in the context of the factual matrix of the disputes. A clear distinction must be drawn between cases where a party acts erroneously or otherwise proceeds on an erroneous assumption and cases where a party deliberately and wilfully practices deception to acquire a benefit, which is not legitimately due to it, at the cost of the other party and but for the deception, it would not be able to secure the same. The latter would be a case of fraud and not the former - In the present case, there can be little doubt that the amounts awarded are legitimately due and payable by ZTE to VAS. ZTE has not advanced any contention to challenge the impugned award on merits. Thus, in effect, what ZTE seeks to contend is that it has been deprived and cheated of its opportunity, whereby it could have withheld the legitimate dues of VAS. Plainly, this cannot be accepted.
This Court is not persuaded to accept the contention that the legal proceedings continued after the name of VAS was struck off the Register of Companies, should be held as void, notwithstanding, that its name had been restored on the Register of Companies subsequently - The existence of a company whose name has been removed from the Register of Companies would continue, at least to the extent of enabling it to have the same restored.
This Court is unable to accept that ZTE has established, by sufficient proof, any of the grounds as set out in Section 48(1) of the Act to decline enforcement of the impugned awards - the objections raised by ZTE are rejected.
Cenvat Credit - capital goods or not - being tower parts, green shelter, printers and office chairs - immovable property - tower would qualify as “part” or “component” or “accessory” of the capital goods i.e. antenna or not - HELD THAT:- Reliance placed in the case of M/S. BHARTI AIRTEL LTD. (EARLIER KNOWN AS BHARTI TELE-VENTURES LTD.) VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2014 (9) TMI 38 - BOMBAY HIGH COURT] where it was held that 'The subject items are neither capital goods under Rule 2(a) nor inputs under Rule 2(k) of the Credit Rules and hence CENVAT credit of the duty paid thereon was not admissible to the appellants.'
Maintainability of petition - appropriate forum - whether a petition under Article 227 of the Constitution of India lies to the High Court against an order of the Civil Judge or the District Judge allowing an application under Section 8 of the Arbitration Act? - HELD THAT:- The counsel for the petitioner / plaintiff has firstly argued that since there is no arbitration clause in the Sale Deed, the same would be treated as variance with the terms and conditions in the Agreement dated 9th February, 2012 and the arbitration clause contained in the Agreement dated 9th February, 2012 has thus been novated by virtue of Section 62 of the Indian Contract Act, 1872 - this cannot be agreed upon.
The only reasonable way to interpret clause 5(j) aforesaid is that unless there is anything in the Sale Deed dated 8th January, 2014 to suggest that the resolution of disputes between the parties would not be by way of arbitration as provided in the Agreement dated 9th February, 2012, the arbitration clause aforesaid in the Agreement would be deemed to have been incorporated in the Sale Deed - Mere absence of an arbitration clause in the Sale Deed cannot be variance with the terms and conditions of the Agreement dated 9th February, 2012 for it to be said that the arbitration clause in the Agreement dated 9th February, 2012 stands novated.
In fact from the admission of the counsel for the petitioner / plaintiff that the clauses aforesaid are capable of being interpreted, as have been done by the learned Additional District Judge, the jurisdiction under Article 227 is excluded inasmuch as the said jurisdiction is not intended to interfere with a possible interpretation of the Courts below.
The second argument of the counsel for the petitioner / plaintiff is that the Agreement dated 9th February, 2012 was imposed upon the petitioner / plaintiff and the petitioner / plaintiff was compelled to sign the same owing to having made all the payments to the respondent / defendant. The counsel states that an application had also been filed in the suit for seeking production of the original Arbitration Agreement and for amendment of the plaint to seek a declaration in this regard. It is argued that the said application has not been decided - Admittedly in the suit as existing at the time when Section 8 application was filed, there was no such relief of declaration that the petitioner / plaintiff had been compelled to sign the Agreement dated 9th February, 2012 or that the same was not binding on the petitioner / plaintiff.
Last argument of the counsel for the petitioner / plaintiff is that the respondent / defendant along with the application under Section 8 of the Act only filed a photocopy of the Agreement dated 9th February, 2012 containing the arbitration clause and never filed original. There is however no dispute that the photocopy which was filed is a true copy of the Agreement signed by the petitioner / plaintiff - Section 8(2) of the Act permits an application under sub Section (1) thereof even when the application is accompanied with a copy of the Arbitration Agreement or the contract containing the Arbitration Agreement. Once there is no dispute as to the genuineness of the document, the said plea also has no merit.
Demand of service tax under the construction of complex services - period from 2005-06 to 2008-09 - HELD THAT:- The contracts executed by the appellants in relation to construction of residential complex were subjected to service tax under "construction of complex service" prior to 01.06.2007 and under "works contract services" after 01.06.2007. Admittedly, these contracts are of composite nature, involving supply of materials as well as provision of service. In terms of decision of the Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], such composite contracts are liable to service tax only w.e.f. 01.06.2007, under the category of “works contract services”. Further, it is also noted that the original authority confirmed the service tax liability under residential complex service / works contract service on the ground that the appellants constructed residential units having common area and facility in the colony, in terms of agreement with Rajasthan Housing Board. This aspect is being contested by appellant.
The factual details relevant to the present case has not been brought out with supporting evidence. Without inferring the fact regarding applicability of the tax entry in the present case, it is necessary to examine as to whether the residential complex, having individual houses, is in fact, having common areas as mentioned in the statutory definition. This can be verified from the approved layout and other supporting documents. In the absence of specific finding in this regard, it will not be correct to conclude on a particular tax entry.
The impugned order as it stands with reference to tax liability of the appellant for construction of residential complex, is not sustainable. Accordingly, that portion of the finding is set aside and the matter is remanded back to the original authority for a fresh decision - Appeal allowed by way of remand.
Disapproval of appointment of the appellant - prior approval not taken - rejection of claim of the appellant on the ground that no prior approval of the District Inspector of Schools was obtained before making the appointment and that it was not a case of deemed approval since no application was made by the management seeking prior approval - Interpretation of Regulation 101 of the U.P. Intermediate Education Act, 1921 - HELD THAT:- Division Bench in Miss Shailja Shah vs. Executive Committee, [1994 (10) TMI 334 - ALLAHABAD HIGH COURT] considered the expression “prior approval” and “approval” and held that two words connotes different situation. The Division Bench held that where the statutes uses the term “prior approval”, anything done without prior approval was a nullity. The Court further held that where the statute employs the expression “approval”, in such cases, subsequent rectification can make the act valid.
In the instant case, the expression used in Regulation 101, is “prior approval” and not “approval”. Consequently, when the statute uses the term “prior approval”, then anything done without prior approval is a nullity. In Prabhat Kumar Sharma and others vs. State of U.P. and others, [1996 (7) TMI 603 - SUPREME COURT] the Supreme Court held 'Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.'
In the present case, admittedly the appellant was appointed without seeking prior approval from the District Inspector of Schools. The said appointment was wholly illegal and was a void order, which conferred no right on the appellant.
It is also found that the Regional Joint Director of Education in the impugned order had clearly given a categorical finding of fact that Arun Kumar Singh, respondent No. 5, who was at Sl. No. 1 of the select list had not declined to take the appointment nor gave any resignation.
In view of this finding, the appellant could not have been offered appointment. This finding has not being questioned by the appellant in the writ petition - Petition dismissed.
Seeking a writ of habeas corpus for the production and custody of a minor child - allegedly illegally removed by the mother-Appellant from the custody of the father-Respondent No. 2 (writ Petitioner) from the United Kingdom (UK) - Jurisdiction of Courts - Return of the Child to England and Wales -Welfare of the Child - Compliance with Foreign Court Orders - Visitation Rights and Participation in Foreign Proceedings - The court provisionally found that Nethra Anand was habitually resident in England and Wales as of 2 July 2015 and was wrongfully removed to India on that date. The child has been wrongfully retained in India since then.
HELD THAT:- In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in India according to Hindu rites and customs. The father, an Indian citizen, had gone to the U.K. as a student in 2003 and was working there since 2005. After the marriage, the couple shifted to the U.K. in early 2007 and stayed in Watford. The mother did get an employment in London in 2008, but had to come to her parents' house in Delhi in June 2009, where she gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the U.K. in March 2010. But from August 2010 till December 2011, because of matrimonial issues between the Appellant and Respondent No. 2, the Appellant and her daughter remained in India.
Since Nethra had acquired British citizenship, the U.K. Court could exercise jurisdiction in respect of her custody issues. Significantly, till Nethra returned to India along with her mother on 2nd July, 2015, no proceeding of any nature came to be filed in the U.K. Court, either in relation to the matrimonial dispute between the Appellant and Respondent No. 2 or for the custody of Nethra. Further, Nethra is staying in India along with the Appellant, her grandparents and other family members and relatives unlike in the UK she lived in a nuclear family of the three with no extended family. She has been schooling here for the past over one year and has spent equal time in both the countries out of the first six years. She would be more comfortable and feel secured to live with her mother here, who can provide her love, understanding, care and guidance for her complete development of character, personality and talents. Being a girl child, the guardianship of the mother is of utmost significance. Ordinarily, the custody of a "girl" child who is around seven years of age, must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother.
No such material or evidence is forthcoming in the present case except the fact that the Appellant (mother) has violated the order of the U.K. Court directing her to return the child to the U.K. before the stipulated date. Admittedly, when Nethra was in the U.K., no restraint order was issued by any court or authority in the U.K. in that behalf. She had travelled along with her mother from the U.K. to India on official documents. It is a different matter that Respondent No. 2 alleges that he was not informed before Nethra was removed from the U.K. and brought to India by his wife (Appellant herein). It is common ground that Nethra is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention. That can be given only by her mother. The Respondent No. 2 (father) is employed and may not be in a position to give complete attention to his daughter. There is force in the stand taken by the Appellant that if Nethra returns to the U.K., she may not be able to get meaningful access to provide proper care and attention. Further, she has no intention to visit the U.K.
Compliance with Foreign Court Orders - No such material or evidence is forthcoming in the present case except the fact that the Appellant (mother) has violated the order of the U.K. Court directing her to return the child to the U.K. before the stipulated date. Admittedly, when Nethra was in the U.K., no restraint order was issued by any court or authority in the U.K. in that behalf. She had travelled along with her mother from the U.K. to India on official documents. It is a different matter that Respondent No. 2 alleges that he was not informed before Nethra was removed from the U.K. and brought to India by his wife (Appellant herein).
It is common ground that Nethra is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention. That can be given only by her mother. The Respondent No. 2 (father) is employed and may not be in a position to give complete attention to his daughter. There is force in the stand taken by the Appellant that if Nethra returns to the U.K., she may not be able to get meaningful access to provide proper care and attention. Further, she has no intention to visit the U.K.
Thus, it would be in the best interests of the minor (Nethra) to remain in custody of her mother (Appellant) else she would be exposed to harm if separated from the mother. We have, therefore, no hesitation in overturning the conclusion reached by the High Court. Further, we find that the High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child and including the "first strike" principle referred to in Surya Vadanan's case [2015 (2) TMI 1408 - SUPREME COURT].
Welfare of the Child - The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education,-for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.
Needless to observe that after the minor child (Nethra) attains the age of majority, she would be free to exercise her choice to go to the UK and stay with her father. But until she attains majority, she should remain in the custody of her mother unless the Court of competent jurisdiction trying the issue of custody of the child orders to the contrary. However. the father must be given visitation rights, whenever he visits India. He can do so by giving notice of at least two weeks in advance intimating in writing to the Appellant and if such request is received, the Appellant must positively respond in writing to grant visitation rights to the Respondent No. 2-Mr. Anand Raghavan (father) for two hours per day twice a week at the mentioned venue in Delhi or as may be agreed by the Appellant, where the Appellant or her representatives are necessarily present at or near the venue.
Visitation Rights and Participation in Foreign Proceedings - The Respondent No. 2 shall not be entitled to, nor make any attempt to take the child (Nethra) out from the said venue. The Appellant shall take all such steps to comply with the visitation rights of Respondent No. 2, in its letter and spirit. Besides, the Appellant will permit the Respondent No. 2-Mr. Anand Raghavan to interact with Nethra on telephone/mobile or video conferencing, on school holidays between 5 PM to 7:30 PM IST.
As mentioned earlier, the Appellant cannot disregard the proceedings instituted before the UK Court. She must participate in those proceedings by engaging solicitors of her choice to espouse her cause before the High Court of Justice. For that, the Respondent No. 2-Anand Raghavan will bear the costs of litigation and expenses to be incurred by the Appellant. If the Appellant is required to appear in the said proceeding in person and for which she is required to visit the UK, Respondent No. 2-Anand Raghavan will bear the air fares or purchase the tickets for the travel of Appellant and Nethra to the UK and including for their return journey to India as may be required. In addition, Respondent No. 2-Anand Raghavan will make all arrangements for the comfortable stay of the Appellant and her companions at an independent place of her choice at reasonable costs.
In the event, the Appellant is required to appear in the proceedings before the High Court of Justice in the UK, the Respondent No. 2 shall not initiate any coercive process against her which may result in penal consequences for the Appellant and if any such proceeding is already pending, he must take steps to first withdraw the same and/or undertake before the concerned Court not to pursue it any further. That will be condition precedent to pave way for the Appellant to appear before the concerned Court in the UK.
Accordingly, this appeal is allowed in the above terms. The impugned judgment and order passed by the High Court of Delhi in Writ Petition (Criminal) is set aside. Resultantly, the writ petition for issuance of writ of habeas corpus filed by the Respondent No. 2 stands dismissed subject however, to the arrangement indicated respectively.
Addition u/s 40A - payments for purchase of the land in cash to related company of the assessee - HELD THAT:- The intention of the legislature for inserting section 40A(3) of the Act is to pluck the loophole of tax evasion by making the payments in cash. Once it is established that the payment is genuine and the recipient has admitted the payment in their income return, the purpose of 40A(3) of the Act is complied with. Therefore, the courts have held in such circumstances the rigor of the provisions needs to be interpreted liberally when the payment is genuine and the payee is identifiable. In this case, there is no doubt regarding the payee and payer and the CIT(A) also has given a finding that the payee in the case of Siri Constructions has admitted the amount in their returns.
As in the case of Sri Lakshmi Satyanarayana Oil Mill [2014 (8) TMI 486 - ANDHRA PRADESH HIGH COURT] held that the provision must be interpreted liberally and the assessees cannot be subjected to undue rigor. Therefore, in the instant case, the payments are said to be genuine and the payees are identifiable and the recipients have admitted the receipts in the income. Therefore, we do not find any infirmity in the order of the Ld. CIT(A) and the same is upheld and the appeal of the revenue is dismissed.
Correct head of income - Gain on sale of land - capital gain or business income - intention behind the transaction - HELD THAT:- It is evident that the assessee has meticulously planned the entire transaction as business transaction. It is evident from the fact that before registration of the land with the help of GPA and she had entered into an agreement for development of the land with M/s. Siri Constructions and immediately after the development she has sold the land to Reliance Industries. The entire transaction appears to be with an intention to do the business but not for the investment. Therefore, the CIT(A) rightly held the transaction as the venture in the nature of trade and not capital gains. We do not find any infirmity in the order of the Ld. CIT(A), therefore order of the CIT(A) is upheld.
Rectification of mistake - mistake apparent on record or not - HELD THAT:- The Final Order M/S. KAJARIA CERAMICS LTD. & ORS. VERSUS C.C.E. JAIPUR-I [2016 (11) TMI 1752 - CESTAT DELHI] passed by the Tribunal is modified and in the title of the order, ‘Arising out of Order-in-Appeal No. 433 (DKV)ST/JPRI/2010’, the words ‘434’ is also added.
Addition on account of transaction on sale and purchase of shares -capital gain or business income - aspect pertaining to the volume of transactions, the frequency of transactions and the continuity and regularity of the purchase and sale of the shares - whether the said shares were bought and sold as a part of trading activity or as a part of investments? - addition on account of legal expenses - HELD THAT:- The tribunal while examining the issue has referred to a decision of the Delhi High Court in the case of Commissioner of Income Tax v. Vinay Mittal [2012 (5) TMI 89 - DELHI HIGH COURT] referring to case of Rewashanker A. Kothari [2006 (1) TMI 80 - GUJARAT HIGH COURT] held that one of the most important tests outlined in that decision was as to whether the transactions in the shares were of a large volume and were frequent and whether there was continuity and regularity in such transactions of purchase and sale. It was noted that if there was repetition and continuity coupled with the magnitude of the transactions bearing a reasonable proportion to the holding then it would be an important circumstance in considering such activity to be in the nature of trade and business.
All the circumstances outlined in the decision of the Delhi High Court and that of the Gujarat High Court as also the guidelines of the Central Board of Direct Taxes referred to in the impugned order needed to be considered and then a view was required to be taken on the totality of circumstances.
Unfortunately, that has not been done. It is for this reason that we feel that the present appeal ought to be disposed of by setting aside the impugned order and by remitting the matter to the tribunal for a fresh consideration in the manner indicated above. It is ordered accordingly. Since we are in any event remitting the matter with regard to the nature of the transaction concerning the sale and purchase of shares, we also set-aside the finding with regard to legal expenses and that also ought to be considered afresh. Parties shall be entitled to raise all contentions available to them in law.
Transfer Pricing Adjustment - ALP determination - - international transaction of receipt of intra-group services with its Associated Enterprises ("AEs") - services received by the assessee should be considered to be arm’s length under TNMM - HELD THAT:- ITAT in the impugned order [2016 (9) TMI 1334 - ITAT DELHI] followed its earlier order in the Assessee’s own case for AY 2007 – 2008 and 2008 – 2009 [2015 (12) TMI 1620 - ITAT DELHI]. The Revenue’s appeal against that order of the ITAT was dismissed by this Court vide order [2016 (9) TMI 244 - DELHI HIGH COURT] - no substantial question of law arises for consideration.
Meaning to be given to the definition of "light motor vehicle" as defined in Section 2(21) of the MV Act - transport vehicles are excluded from it or not - 'transport vehicle' and 'omnibus' the "gross vehicle weight" of either of which does not exceed 7500 kg. would be a "light motor vehicle" and also motor car or tractor or a road roller, "unladen weight" of which does not exceed 7500 kg. and holder of a licence to drive the class of "light motor vehicle" as provided in Section 10(2)(d) or not - effect of the amendment made by virtue of Act No. 54 of 1994 w.e.f. 14.11.1994 - effect of Amendment of Form 4 as to the operation of the provisions contained in Section 10 as amended in the year 1994 - procedure to obtain the driving licence for transport vehicle of the class of "Light Motor Vehicle" has been changed.
HELD THAT:- The questions are answered as below:
(i) 'Light motor vehicle' as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No. 54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued Under Section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14.11.1994 while substituting Clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle" in Section 10(2)(e), medium passenger motor vehicle in Section 10(2)(f), heavy goods vehicle in Section 10(2)(g) and "heavy passenger motor vehicle" in Section 10(2)(h) with expression 'transport vehicle' as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
Let matters be placed for hearing on merits before the appropriate Bench.
Constitutional power to review its judgment as granted by Article 137 of the Constitution - Rule 1 of Order 40 - Error apparent on the face of record or not - HELD THAT:- Under Order 40 Rule 1 no application for review can be entertained except on the ground of an error apparent on the fact of the record. Although, the power of review given to this Court in wider as has been held by the Constitution Bench in P.N. Eshwara [1980 (2) TMI 258 - SUPREME COURT], Justice Krishna Iyer has given an illustration where the Court will not hesitate in exercising its power to review in a case where deceased himself walks in the Court on whose murder Accused were convicted. Justice Krishna Iyer rightly observed that Court is not powerless to do justice in such case. Thus, although the power of review granted to this Court is wider but normally and ordinarily the review in a criminal case has to be on the grounds as enumerated in Rule 1 of Order 40.
What is "an error apparent on the face of the record" has also been a subject matter of consideration by this Court in a large number of cases. What are the grounds on which this Court shall exercise its jurisdiction and what is the error apparent on the face of the record came to be considered by this Court in KAMLESH VERMA VERSUS MAYAWATI & ORS. [2013 (8) TMI 912 - SUPREME COURT]. This Court held that an error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record.
By review application an applicant cannot be allowed to re-argue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the Accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in earlier decision due to judicial fallibility. There has to be error apparent on the face of the record leading miscarriage of justice to exercise the review jurisdiction Under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of the justice.
The submissions raised in the review petitions do not raise any ground for review of judgment of this Court dated 25.01.2010 - the review applications are rejected.
Rule of interpretation - principle of harmonious construction - Locus standi - whether individual parents have locus to approach the Divisional Fee Regulatory Committee (DFRC) under the provisions of the Maharashtra Educational Institutes (Regulation of Fees) Act? - HELD THAT:- Sub-Section 1 of Section 10 provide that powers and functions of DFRC shall be to adjudicate the dispute between the school management and the PTA regarding fee to be charged by the school management from the students. However, a particular sections of statute cannot be read in isolation. While considering the provisions of law, the Court will have to take into consideration various provisions of the statute and apply the principle of harmonious construction.
The other principal that require consideration is the first principal of interpretation. That is of plain and literal construction. Only when the effect cannot be given to the legislative intent, a recourse to the other principals of statutory interpretation would be permissible. It is more than well settled that a right to appeal is a creature of a statute. There cannot be an inherent right to an appeal, until the statute specifically provides for the same. If the legislature in its wisdom has not provided for right to appeal by individual parents before DFRC, if we arrive at the interpretation urged by Respondent Parents by resorting to the pragmatic principle of interpretation, we are of the view that we will be totally encroaching upon the legislative functions of the legislature. The learned counsel for the Respondents may be justified in contending that the legislative enactment which provides a right to appeal only to the management and not to the parents is discriminatory and in violation of Article 14 - while entertaining the Petition of the Petitioners raising basic issue as to the tenability of the appeal at the instance of individual parents, it will not be permissible to consider challenge of the Respondents - the Respondent No. 1 has erred in entertaining the grievance on behalf of the individual parents.
The dispute with regard to constitution of PTA or the Executive Committee is beyond the purview of the said enactment. If any of the parties are aggrieved with the constitution of PTA, the same being an association, such party would either have to invoke the jurisdiction of the Civil Court, if the association is not registered or if it is registered under the provisions of the Maharashtra Public Trust Act, then the competent authority under the said Act. We find that the direction issued in that regard by the Respondent No. 1, is also without jurisdiction.
There are no hesitation in accepting the arguments of the Respondents - Parents that the said enactment has been enacted with the avowed object of prohibiting exploitation of the parents. However, though it is held that the contention of the Respondents Parents is correct in that regard. In the exercise of powers under Article 226, the provisions of the statute cannot be surpassed.
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