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Showing 1 to 20 of 1584 Records
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2015 (8) TMI 1594
Dishonour of Cheque - admission of debt - company is indebted to the petitioner for the principal sum of Rs. 1.19 crore as claimed by the petitioner or not - HELD THAT:- In view of the clear, unambiguous and unequivocal admission of the company's indebtedness to the petitioner to the extent of Rs. 119 lakh, as evident in the company's letter of November 16, 2013, which was issued well after the company's response of September 30, 2013 to the statutory notice issued by the petitioner on September 17, 2013, it does not appear that there is any defence that the company has been able to establish to the extent of the company's indebtedness as indicated in such admission. It appears to be the fairly undeniable position that the company is liable to pay such amount of Rs. 1.19 crore to the petitioner along with interest at the rate of 24 per cent per annum. However, the rate of interest is not indicated in the company's admission of the quantum of its indebtedness in the relevant letter of November 16, 2013.
Conclusion - The company is liable to pay the principal sum of Rs. 1.19 crore with interest at 10% per annum. Cash payments were acknowledged but did not affect the admitted debt. Claims for enhanced interest and additional amounts are relegated to a separate suit.
Application disposed off.
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2015 (8) TMI 1593
Winding up of company - insolvent company, unable to pay its debts - company asserts that even though the debts due to the petitioning-creditors must be regarded as established, the Company Court will exercise its discretion to not wind up a running commercial organization which has substantial prospects - HELD THAT:- The petitions have been advertised. No creditor or other person has appeared to oppose the winding-up of the company. The company has not been able to garner support from its body of creditors that the company should not be sent to liquidation.
The grounds that have been made out in the company's affidavit at the post-advertisement stage lead to the inescapable inference that the company is insolvent and is unable to pay its debts. Unlike several other companies where the debt is attempted to be dishonestly disputed to conceal the financial inability of the company to pay, no such attempt has been made in this case; but nothing that is said in the company's post-advertisement affidavit detracts from the petitioners' assertion that the company is unable to pay its debts and is commercially insolvent.
Conclusion - Since it is evident that the company does not have the requisite funds to pay its debts and it has made a huge loss in the last financial year for which the accounts have been carried to Court, the continued existence of the company must be regarded to be a threat to the commercial world. The company is liable to be wound up immediately.
Petition disposed off.
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2015 (8) TMI 1592
Deduction u/s 80P(2)(a)(i) - denial of claim as assessee was a cooperative bank, and hence, not entitled to claim deduction by virtue of sec. 80P(4) - HELD THAT:- Commissioner of Income Tax (Appeals) has allowed the claim of deduction u/s 80P(2)(a)(i) of the Act by following the decisions of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha [2015 (1) TMI 821 - KARNATAKA HIGH COURT] and General Insurance Employees Cooperative Credit Society Ltd. [2014 (6) TMI 912 - KARNATAKA HIGH COURT] held held that the cooperative societies are not doing banking business and therefore, the provisions of section 80P(4) are not applicable to them and where the assessee cooperative society engaged in providing credit facilities to its members and not accepting deposit from public as evidenced from their bye laws or the cooperative societies accepting other cooperative societies as members have held that those cooperative societies are entitles to the benefit of deduction u/s 80P(2)(a)(i).
As no contrary decision could be cited by the Departmental Representative. We, therefore, do not find any good and justifiable reason to interfere. Decided in favour of assessee.
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2015 (8) TMI 1591
Seeking winding up of the respondent company AAT Academy India Limited - alleged failure of the respondent AAT Academy to pay its debt, which is claimed to be due under promissory note - petitioner alleged that borrower and the respondent had dishonest intentions to defraud the petitioner and at a later point of time, since they were unable to pay the dues, they have become inaccessible - HELD THAT:- From the materials available on record, it is seen that the 1,00,000 shares of Greycells were sold to Keynote Commodities Limited (for short, Keynote Commodities), which is owned and controlled by Vineet Suchanti and Nirmal Suchanti, brothers of Vivek Sunchanti , founder of Concept Communication, who introduced the Managing Director of the answering respondent to Bela and Sanjay with whom Vivek Suchanti is closely associated. It is also seen that Keynote Commodities is engaged in stock broking business and has close links to the stock broking business carried on by Bela and Sanjay.
First of all, this Court has to see whether there is a debt and if so, whether it is admitted and if admitted, whether the company can pay the same. While deciding the question of inability to pay the debt alleged, it is to be seen whether it is genuine. Inability is the non-payment of the debt within the statutory period. However, such inability has to be determined from the facts of each case - the alleged “Inability to pay its debts” by the respondent has to be considered and examined taking into various aspects. It is settled principle that winding-up is not a matter of right but it is the discretion of Court on any one of the grounds mentioned in Section 433 of the Companies Act. Though the statutory notice raised the presumption as to the inability to pay its debts, it is rebuttable. Admittedly, in this case, the company is only a guarantor for the loan borrowed by the Director without any resolution of the Board.
Whether the Court can presume the inability of respondent to pay the alleged debt due under the notice? - HELD THAT:- Though, ordinarily the petitioning-creditor may be entitled to an order of winding-up, considering the business in which the respondent is involved, the same becomes the discretion of the Court. It has also been held in a catena of cases that even if more than one ground is made out as enumerated under Section 433 of the Companies Act, there is no compulsion on the part of the Court to order winding-up. In the case on hand, the indebtedness is vehemently disputed by the respondent-company. Therefore, an order of winding-up at the instance of the company - petitioner would affect the career prospectus of many of the students who are undergoing education training during the current year and also in the ensuing years.
Solvency of the respondent-company - HELD THAT:- The business of the company is only providing educational services employing more than 60 persons. In such circumstances, winding-up of the same at the instance of the Petitioning- Creditor would deprive the employment of the persons with the respondent organization, resulting in great prejudice and serious hardship to them. The respondent-company being only a guarantor, in the absence of resolution to sell the shares of the company or even act as a guarantor without a resolution, the alleged transactions by the Petitioning-Company are subject matter of proof and evidence. While so, ordering winding-up would be like pressurizing the respondent to pay the money. Even presuming that there is a dispute with the respective debt payable, in the given circumstances, the dispute can be resolved only before the Civil Court and not through the company Court.
The Company Petition filed as such is not maintainable and hence, the same is dismissed.
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2015 (8) TMI 1590
Disposal of tenancy rights under the Special Courts Act - liabilities outstanding for the statutory period or not - HELD THAT:- The main contention advanced on behalf of the appellant that there are no liabilities outstanding for the statutory period and therefore there is no requirement to dispose of its tenancy rights is ex-facie found to have no merits.
As a result, there are no illegality or infirmity in the impugned order and this appeal deserves to be dismissed.
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2015 (8) TMI 1589
Petition under Section 433 and 434 of the Companies Act of 1956 for winding up of company - privity of contract between the petitioner and respondent - Acknowledgment of Debt - HELD THAT:- It is clear that the respondent was not agreeable for the Deed of Assignment which the Samsung was inclined to execute in favour of the petitioner. The Managing Director of the respondent has specifically objected for such arrangement in May, 2005. The Samsung, therefore, issued the notice to the respondent and the respondent has paid an amount of Rs. 30,90,136/- to the Samsung. However, thereafter, in December, 2005, the Deed of Assignment was executed between the Samsung and the petitioner. The present petition is filed on the basis of the said Deed of Assignment executed by the Samsung in favour of the petitioner - it is clear that there was no privity of contract between the petitioner and respondent. The respondent is not liable to make any payment to the petitioner as there was no privity of contract between them. Thus, only on this count, the present petition is required to be dismissed.
The Managing Director has specifically stated that Deed of Assignment is not feasible in May, 2005. Therefore, it is surprising that Manager of the respondent-company has informed the petitioner that they are agreeable for the principal amount of USD 1,65,493 if interest is waived. However, when the authority to write such letter by the Manager is disputed by the respondent, the petitioner cannot rely upon the said communication and more particularly when the other communications are from Managing Director of the respondent. Thus, it cannot be said that the respondent has acknowledged its debt and was agreeable for the payment of USD 1,65,493 to the petitioner. The last communication is in March, 2008 and the petition is filed even after approximately a period of three years i.e. on 18.3.2011. Thus, it is also clear that the petition is liable to be dismissed on the ground that it is filed after the period of limitation.
The Hon'ble Division Bench in Tata Iron & Steel Company Ltd. V/s Micro Forge (India) Ltd. [2000 (3) TMI 920 - HIGH COURT OF GUJARAT] has laid down various guidelines which are required to be considered by the Company Court while deciding the winding up petition. It is clear from the said guidelines that remedy under Section 433(e) is not a matter of right and it is the discretion of the Company Court. It does not confer any right on any person to seek order that the company must be wound up. However, it gives power to the Company Court to pass an order of winding up in appropriate cases. The Court is not bound to order winding up of the company merely because any one of the circumstances enumerated in Section 433 of the Companies Act exists. It is possible that at times, there may be a cash crunch or temporary cash crisis despite heavy turnover. Therefore, mere disability or inability to pay in such case would not constitute a ground for winding up of the company. Even when the company is an on-going concern having regular business and employment of employees, the Court would not consider the request to wind up the company. Course of filing of winding up petition cannot be a recourse of recovery of debt.
The discretion is not required to be exercised in favour of the petitioner. Hence, the present petition fails. Accordingly, it is dismissed.
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2015 (8) TMI 1588
Setting aside the order of final winding up of the company - delay in seeking recall of the winding up order - Rule 6 read with Rule 9 of the Companies (Court) Rules, 1959 - HELD THAT:- Undoubtedly, the application which was filed in November, 2007 seeking recall of the order dated 14th September, 2005 was belated. The appellant had put together his peculiar circumstances responsible for the delay in filing the application. However, it cannot be lost sight of the fact that the appellant stood implicated under the criminal proceedings since the year 2001 and there is substance in the submission made, that the appellant’s energies were devoted to sorting out the criminal prosecution in which he was also incarcerated for a period of two years. In any case, it is well settled that the delay by itself would not shut down the doors of the court to a person where such a delay can be compensated by way of imposition of costs.
Attention is drawn to the order dated 20th November, 2013 issued by the Sub-Judicial Magistrate, CBI, Lucknow directing the prosecution to file a correct list of investors based on details obtained from both the liquidators at Allahabad and New Delhi or from any other legal source as soon as possible and also the details of all those investors who are yet to receive the money due from the appellant. It is submitted by the appellant that no such details have been furnished till date.
The company application No. 1261/2007 shall be placed for consideration on merits for directions before the Company Judge on 3rd September, 2015.
This appeal and the application are allowed.
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2015 (8) TMI 1587
Maintainability of appeal - monetary limit involved in the appeal - HELD THAT:- The Supreme Court of India dismissed the appeal without entering into the merits of the case due to the small amount of tax involved. The question of law remains open.
Appeal dismissed.
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2015 (8) TMI 1586
Dismissal of special leave petition preferred by the judgment debtor - judgment debtor seeks six weeks’ time to make the payment to the decree holder - HELD THAT:- In the interest of justice, six weeks’ time is granted to the judgment debtor to make the payment of the decretal amount directly to the decree holder. The judgment debtor shall also send the calculation of the decretal amount to the decree holder along with the payment.
List on 20th November, 2015 for reporting the satisfaction of the decree.
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2015 (8) TMI 1585
Refusal of the respondents No. 1&2 University of Delhi of permission to the petitioner to take supplementary examination in the subject of Jurisprudence-II of VIth term Bachelor of Law (LLB) Programme - seeking a mandamus to the respondents University of Delhi and its Examination Branch to allow the petitioner to take the said examination - HELD THAT:- The mere fact that the respondents University readmitted the petitioner to the LLB course would not make the other rule of the respondents University pertaining to span period inapplicable to the petitioner. Grant of a special chance to the petitioner, to take only the examination in the remaining paper of the Vth term and in the five papers of the VIth term, without so readmitting the petitioner, would have been futile for the petitioner. On the reasoning in Amit Kumar [2014 (11) TMI 1291 - DELHI HIGH COURT], the petitioner is not entitled to any relief at this stage and has to await the outcome of the decision which the respondents University in Amit Kumar supra has been directed to take.
The Supreme Court in Shangrila Food Products Ltd. Vs. LIC [1996 (7) TMI 571 - SUPREME COURT], Dwarka Nath Vs. ITO [1965 (3) TMI 23 - SUPREME COURT], LIC Vs. Asha Goel [2000 (12) TMI 894 - SUPREME COURT] and UOI Vs. R. Reddappa [1993 (8) TMI 319 - SUPREME COURT] has held that Article 226 is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Court to reach injustice wherever it is found. The High Court is empowered to mould the relief to meet the peculiar and complicated requirements of this country. The Constitution does not place any fetters on the exercise of the extraordinary jurisdiction of the High Courts under Article 226. It is left to the discretion of the High Court. This Court can, in exercise of such jurisdiction, take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. Once this Court is satisfied of injustice or arbitrariness, then the restrictions on the exercise of power, self imposed or statutory, stand removed and no rule or technicality, on exercise of power, can stand in the way of rendering justice.
Our country and its various institutions and authorities, in recognition of the service so rendered by the Defence Personnel to the nation, have devised several schemes conferring certain special benefits, advantages and reservations to them and to their family members. The Supreme Court, as far back as in D.N. Chanchala Vs. The State of Mysore [1971 (5) TMI 78 - SUPREME COURT (LB)] held that reciprocal obligations towards those who serve the interest of the country’s security justified setting apart of certain seats in educational institutions for defence personnel. Such preferential treatment was held permissible under Article 15(4) of the Constitution of India. It was held that Defence personnel are at a disadvantage in the matter of education. However it appears that the respondents University, while stipulating the span period, has not considered the said factor and not provided a longer span period for Defence Personnel, considering the exigency of their services and duties.
This Court will be failing in its duty if denies relief to the petitioner.
The respondents University of Delhi is directed to allow the petitioner to complete the LLB course / degree by appearing in the examination of the remaining paper (Jurisprudence-II) of the VIth term of the LLB programme, subject of course to the petitioner complying with the requisite formalities - Petition allowed.
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2015 (8) TMI 1584
Deductibility of expenses incurred at Head Office on behalf of Indian Branch u/s 37(1) of the Act without restrictions contained in Section 44C - HELD THAT:- This issue is concluded against the appellant/revenue by order of this Court in an appeal filed by revenue in respect of the same respondent relating to Assessment Year 1997-98 [2015 (4) TMI 1041 - BOMBAY HIGH COURT]
Disallowance u/s 14A - Tribunal deleted addition - HELD THAT:- Section 14A of the Act specifically provides that expenditure incurred in relation to income which does not form part of total income under the Act shall not be allowed as deduction. Thus it excludes the allowing of deduction of expenditure incurred to earn the exempt income.
It does not disturb the finding of Supreme Court in Rajasthan State Warehousing Corpn. case [2000 (2) TMI 5 - SUPREME COURT] in respect of cases wherein the expenditure is incurred on earning income which is not exempt. In this case, income earned is not exempt but chargeable to tax albeit at a lower rate. In the present facts it is not disputed that income earned on interest and dividends is chargeable to tax at a special rate under Section 115A of the Act. Consequently, there could be no occasion to invoke Section 14A of the Act to disallow expenditure which has admittedly been incurred in respect of income which is taxable.
Interest income earned on funds by AO, in Indian Branch be termed as interest to self - HELD THAT:- In the present facts, the issue arising for consideration is not the deduction on account of interest paid to the Head Office but the non exigibility to tax on account of interest received from its Head Office on the ground that no person can make profit out of itself as held by the Apex Court in the case of Sir Kikabhai Premchand [1953 (10) TMI 5 - SUPREME COURT] In any view of the matter, Section 90(2) of the Act itself provides that the assessee has an option to either invoke DTAA or normal provisions of tax to the extent which of the two is more beneficial to it. In this case, by filing the revised return of income the claim to be subjected to tax under the DTAA stood withdrawn. In the above view, we see no substantial question of law arising for our consideration. Accordingly, Question as formulated by the revenue, does not give rise to any substantial question of law.
Interest on bad and doubtful debts is not chargeable to tax for this year u/s. 43D when assessee had not credited such interest to it's P&L Account of this year - grievance of the revenue is that as the crediting of interest to the RDFI account would by itself be sufficient to bring the amounts to tax under Section 43D - HELD THAT:- We find that Section 43D of the Act clearly provides that only such interest on bad and doubtful debts which are received or is credited to the Profit and Loss Account for the year under consideration, would the same be taxable. In the present facts, the amount of interest attributable to bad and doubtful debts has not been received. Further the interest has not been credited to Profit and Loss Account but to a reserve amount called RDFI account maintained in terms of Reserve Bank of India's guidelines. Besides, this Court in CIT v. Citi Bank N.A. [1994 (4) TMI 72 - BOMBAY HIGH COURT] had recorded the practice of banks to effectively control it's problem loans and it's recoveries by keeping/maintaining a memorandum record of interest due on such accounts.
This is an usual banking practice to keep a tab/check on the problem loans and interest thereon. The provision under Section 43D of the Act are very clear and unequivocal that the interest receivable on bad and doubtful debts are chargeable to tax only when it is credited to the Profit and Loss Account and/or when they are actually received. Clearly, in the present case, the interest accrued on the bad and doubtful loans has not been credited to Profit and Loss Account nor has the amounts of such interest been received by the respondent. Therefore in view of the self evident position as noticed in Section 43D of the Act, no substantial question of law arises.
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2015 (8) TMI 1583
Works contract service - taxability of service component before 1.6.2007 - whether components of a composite transaction amounting to supply of labour/rendition of service(s), under a works contract ought to be classified only under Section 65(105)(zzzza) of the Finance Act, 1994 (the Act) - it was held by majority that 'Service elements in a composite (works) contract (involving transfer of property in goods and rendition of services), where such services are classifiable under "Commercial or Industrial Construction"; "Construction of Complex" or "Erection, Commissioning or Installation" (as defined), are subject to levy of service tax even prior to (01.06.2007) insertion of sub-clause (zzzza) in Section 65(105) of the Finance Act, 1994.'
HELD THAT:- Issued notice.
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2015 (8) TMI 1582
The following substantial questions of law are admitted:
1. Whether the confiscation of foreign origin betel nuts can be set aside only on the basis of the fact that the said confiscation is based on the trade opinion only?
2. Because whether the trade opinion is not sufficient piece of evidence establishing the factual of smuggling?
3. Whether the contradictory confessional statements of the respondents recorded under Section 108 of the Customs Act are not sufficient to make seizure of the foreign origin betel nuts.
Issue notices to the respondents by Registered Post - List on the date fixed in the notice.
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2015 (8) TMI 1581
Seeking release of deputation allowance payments, claimed for the period 24-07-2008 to 20- 03-2012, when he was on deputation - HELD THAT:- The first contingency, i.e where an employee is deputed on an interim arrangement (“in the event of conversion of a Government office/organisation or a portion thereof into a PSU/ autonomous body or vice-versa”) cannot apply. The petitioner was not sent by way of interim arrangement in the event of any Government office getting converted into a Public Sector Undertaking or autonomous body. The respondents’ argument appears to be that the Force was at the stage of conversion into an autonomous body or a PSU and consequently, the Petitioner was ineligible for deputation allowance. However, there are no force in this contention.
The terms “PSU” and “autonomous body” have definite connotation, and cannot be so construed to include a statutory body created under an Act of Parliament of 2005 and by way of a special force. Furthermore, the respondents also do not state anywhere that the Petitioner fulfilled the second condition, i.e deputation to the same cadre. All along the respondents’ plea had been that the petitioner was a “deemed deputationist” under Rule 3(1) and consequently disentitled to deputation allowance.
The petitioner is entitled to the reliefs claimed, i.e. deputation allowance for the period 24- 07-2008 and 20-03-2012. A direction is issued to the respondents to ensure that the petitioner is released the deputation allowance and connected monetary benefits which he was entitled to for the said duration of time he spent in the force, within six weeks from today.
Petition allowed.
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2015 (8) TMI 1580
Challenged the re-assessment order without prior assessment - HELD THAT:- The petitioner contended that a re-assessment order was issued without any prior assessment, citing the Supreme Court decision in Ghanshyamdas Vs. Regional Assistant Commissioner of Sales Tax, Nagpur [1963 (8) TMI 2 - SUPREME COURT]. The Standing Counsel for the Finance Department acknowledged that the re-assessment orders were indeed passed without any initial assessment. Consequently, the petitions were allowed, and the re-assessment orders were set aside.
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2015 (8) TMI 1579
Eligibility of the 1st respondent, for 1st and 2nd time bound upgradation under EPP of BSNL - direction to place the case of the 1st respondent for consideration by the Screening Committee - HELD THAT:- The 1st respondent was acquitted on merits and that the Court, after considering all the facts, held that there is no cogent and reliable evidence and that the complainant himself was not clear. The Court has further held that averments made by the prosecution cannot be accepted and resultantly, when there was no evidence, the 1st respondent herein is entitled to be acquitted.
While that be the clear finding recorded in the judgment, acquitting the respondent, under the premise of appeal, being filed and pending, against the order of acquittal, the 1st respondent cannot be deprived of the time bound IDS scale upgradation, endlessly. Disposal of the appeal may take a long time. The 1st respondent is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court - if the arguments of the petitioner have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced.
Though by placing reliance on a decision of the Hon'ble Apex Court in Garikapti Veeraya v. N. Subbiah Choudhry [1957 (2) TMI 54 - SUPREME COURT], learned counsel for the petitioner contended that appeal is a continuation of the proceedings and that Vigilance has not given a clearance to the case of the 1st respondent to the Screening Committee, this Court is not inclined to accept the same.
The Writ Petition is dismissed.
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2015 (8) TMI 1578
Applicability of provisions of Section 28-A of the Land Acquisition Act, 1894 to the acquisitions under the Maharashtra Industrial Development Act, 1961 - determination of compensation on the basis of the award of the Court - HELD THAT:- The question whether the amended provisions of the Land Acquisition Act i.e., Section 23(2) and Section 23(1)(A) that relate to the payment of solatium and interest would apply to the acquisitions under the MID Act fell for consideration before this Court in the case of Resident Deputy Collector, Pune v. G.N. Landge & Anr., [1996 (11) TMI 491 - BOMBAY HIGH COURT], and this Court observed by referring to a couple of judgments of the Hon'ble Supreme Court that it had no hesitation in coming to the conclusion that the provisions of Sections 23 and 24 of the Land Acquisition Act are adopted by reference in the MID Act in the year 1967 in view of Section 33(5) of the MID Act.
After so observing, the Court held that the Maharashtra Industrial Development Corporation was liable to pay interest in terms of the provisions of Section 28 of the Land Acquisition Act for acquisitions under the MID Act. It is not in dispute that after the said decision, the Corporation started paying interest and solatium to the claimants in terms of the provisions of Sections 23 and 28 of the Land Acquisition Act.
There is another set of judgments in the cases of Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors., [1972 (12) TMI 82 - SUPREME COURT], NIT v. Vasantrao & Ors., [2002 (9) TMI 798 - SUPREME COURT] and MAHARASHTRA STATE ROAD TRANSPORT CORPORATION. VERSUS STATE OF MAHARASHTRA & ORS. [2003 (3) TMI 726 - SUPREME COURT], wherein the Hon'ble Supreme Court, by applying the test of Article 14of the Constitution of India held that different principles of compensation cannot be formulated if land is acquired for public purposes, as discrimination cannot be made on the basis of the authority acquiring the land.
In the case of GIRNAR TRADERS & DIGAMBAR MOTIRAM JHADHAV VERSUS STATE OF MAHARASHTRA & ORS. & THE COMMISSIONER & ORS. [2011 (1) TMI 1343 - SUPREME COURT], Hon'ble Supreme Court was mindful of the purpose of legislation by reference and legislation by incorporation, viz. that in a legislation by reference all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply to the later law and in a case of legislation by incorporation the subsequent amendments in the former law could not be treated as a part of the incorporating Act. The Hon'ble Supreme Court held that though there is a reference to the provisions of the Land Acquisition Act by Section 126(3) of the MRTP Act by incorporation, the amending provisions of the Land Acquisition Act to the extent of acquisition of land, payment of compensation and recourse to legal remedies could be read into the acquisitions under the MRTP Act.
The object of the provisions of Section 28-A is to provide similar compensation to the land holders that are affected by the same Section 4 notification. It cannot be said that Section 28-A was enacted only with a view to help the inarticulate and poor people. Section 28-A appears to have been enacted, as reflected from the statements of objects and reasons to remove inequality and discrimination in the payment of compensation. If the object of enacting the provisions of Section 28A is as such, it cannot be said that the said provisions cannot be read in the provisions of the MID Act so as to make the same applicable to the acquisitions under the MID Act.
It is hereby held that the provisions of Section 28-A of the Land Acquisition Act would apply to the acquisitions under the MID Act. The respondent No. 2 is directed to consider the applications of the petitioners for determination of compensation on the basis of the award of the Court, in accordance with the provisions of the Land Acquisition Act.
The petition are allowed.
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2015 (8) TMI 1577
Reopening of assessment u/s 147 - reason to believe - share premium amount received over and above the intrinsic value of shares, is income which has escaped assessment - HELD THAT:- It is not the case in the reasons to believe that what has been received as share premium is in fact not share premium. In fact the reasons do proceed on the basis that what has been received is indeed share premium. Prima facie, we are of the view that the basis of the impugned notice stands concluded in Vodafone India Services Pvt. Ltd. Vs Union of India and others [2014 (10) TMI 278 - BOMBAY HIGH COURT] and also Central Board Circular No.2 dated 29 January 2015 that receipt of share premium being on a capital account and cannot be subjected to tax as income.
We were inclined to dispose of the petition at the stage of admission itself after hearing the parties. Additional Solicitor General expressed his inability to waive service at this stage. In view of the above, adinterim reliefs in terms of prayer clause (d).
Petition is placed for final hearing in the week commencing from 19 October 2015.
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2015 (8) TMI 1576
Illegal gratification - Acceptance of Bribe or not - offence punishable Under Section 5(1)(d) of the Prevention of Corruption Act, 1947 - HELD THAT:- It is apparent that the High Court has failed in its duty to come to the close quarter of the reasoning employed by the trial court while reversing the judgment of acquittal. Appreciation of evidence to hold it to be credible was required which has not been done by the High Court at all. In a cursory manner without reappraisal of the evidence and probabilities, the judgment of acquittal has been reversed. Though the High Court has the power to re-appraise the evidence in appeal against acquittal but that has not been done. It is incumbent upon the High Court while reviewing the evidence and to reverse the order of acquittal to consider all matters on record including the reasons given by the trial court in respect of the order of acquittal and should consider all the circumstances in favour of the accused which has not been done.
In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K.M. Eregowda, PW-2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW-1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K.N. Eregowda, PW-2, has stated that the currency notes were kept by the accused beneath the book on the table - Since the complainant was not available for cross-examination, the view taken by the trial court could not be said to be the one which was not possible in the prevailing scenario. Even if two views are possible on the facts, one taken by the trial court did not call for interference, especially in appeal against acquittal.
In A. Subair v. State of Kerala [2009 (5) TMI 912 - SUPREME COURT], this Court has laid down that illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence.
Thus, acceptance of the bribe has not been established by adducing cogent evidence. In view of the circumstances discussed above, the view taken by the trial court was a plausible one and could not have been interfered with by the High Court, that too without coming to the close quarters of the reasoning and re-appraisal of the evidence. The judgment of the High Court is not only cryptic but also no attempt has been made to look into the evidence-both oral and documentary.
There are no hesitation in setting aside the judgment and order passed by the High Court and restore that of the trial court - appeal allowed.
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2015 (8) TMI 1575
Determination of suppressed production - estimation of production and the consequent profits thereon on the basis of consumption of electricity vis-à-vis production of TMT bars - addition was worked out in the hands of the assessee on the basis of US standards - CIT(A) in applying gross profit rate of 4% and consequently allowing manufacturing and administrative expenses on the unaccounted production - HELD THAT:- The issue arising in the present appeal is identical to the issue before the Tribunal in Shree Om Rolling Mills Pvt. Ltd. [2015 (10) TMI 2316 - ITAT PUNE] and following the same reasoning, we direct the Assessing Officer to delete the addition made on account of excess production following the consumption of electricity as per US standards as not merited. However, addition of additional income in the hands of assessee on account of admission made by the assessee of clandestine removal of goods without payment of Excise duty is to be made in the hands of the assessee as per our directions in the above said appeals. Appeals of the assessee are allowed.
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9911796707
