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Showing 1 to 20 of 1739 Records
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2017 (8) TMI 1745
What is equity and justice in a situation where a few employees face adverse consequences for not passing an obligatory test which was never conducted? - HELD THAT:- No doubt, Under Rule 13AA, the passing of test is obligatory for members of the Scheduled Caste and Scheduled Tribe below the rank of Sub-Inspectors in the Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated Under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation.
In ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant Sub-Inspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistant Sub-Inspectors only till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.
Conclusion - i) Rule 39 provides the government with the authority to act in a just and equitable manner, overriding other rules when necessary to prevent injustice. ii) The exemption granted by the government is valid under Rule 39, and the appeal against it is dismissed.
Appeal dismissed.
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2017 (8) TMI 1744
Disallowance of capital loss - whether the transaction of sale and purchase of the shares in question are genuine as alleged by the assessee or the same is colorable device as has been held by the authorities below - HELD THAT:- We notice that the assessee has claimed to have acquired shares of Trend Pharma Pvt. Ltd. @ Rs. 100 per share and sold the same within in one month @ 12.2 per share and has claimed loss of Rs. 70,24,000/-. The assessee has set off the said loss against the capital gain of Rs. 69,59,165/-.
As observed by the AO, the assessee and the Trend Pharma Pvt. Ltd. are controlled by the same persons. Transaction is required to be seen in the light of the law laid down in Durga Prasad More[1971 (8) TMI 17 - SUPREME COURT] and Sumati Dayal . [1995 (3) TMI 3 - SUPREME COURT] where in it has been held that test of human probabilities should be applied to verify the genuineness of any transaction.
We agree with the findings of the Ld. CIT(A) that the transaction of sale and purchase of the shares in question is a colourable device adopted by the assessee in order to avoid tax on the short term capital gain by purchasing the shares at unrealistic price and selling at substantially low prices within a period of one month. Hence, in our considered opinion, the order under challenge does not warrant any interference - Decided against assessee.
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2017 (8) TMI 1743
Prayer for substitution of the Narmada Electrodes LLP in the place of the appellant viz. Narmada Electrodes Private Limited - HELD THAT:- Such prayer is allowed.
The concerned department is directed to amend the cause title of the memorandum of appeal accordingly - Application disposed off.
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2017 (8) TMI 1742
Method of valuation - whether the assessment of Scented Supari is to be made under section 4A of Central Excise Act, 1944 on MRP declared on the multi-piece packages or under section 4 of the said Act? - HELD THAT:- In the appellant’s own case M/S A.R.S & CO VERSUS COMMR. OF CENTRAL EXCISE, TRICHY [2015 (10) TMI 354 - SC ORDER], the Hon’ble Supreme Court had held that the process of crushing of betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthol, sweetening agents etc., does not amount to manufacture. Therefore, the issue whether section 4 or 4A has to be applied for arriving at the assessable value has no relevance for consideration in this appeal. The impugned order is set aside.
Conclusion - The process of crushing of betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthol, sweetening agents etc., does not amount to manufacture. The issue whether section 4 or 4A has to be applied for arriving at the assessable value has no relevance for consideration in this appeal.
Appeal allowed.
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2017 (8) TMI 1741
Rejection of plaint - plaint disclosed no cause of action - Order VII Rule 11 of the Code of Civil Procedure, 1908 - Applicability of Order VI Rule 16 for striking out pleadings - Applicability of Provisions of Order XIV Rule 2.
Rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- What is important to remember is that the provision refers to the "plaint" which necessarily means the plaint as a whole. It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding - It is settled law that the plaint as a whole alone can be rejected Under Order VII Rule 11.
Applicability of Order VI Rule 16 for striking out pleadings - HELD THAT:- Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court.
Applicability of Provisions of Order XIV Rule 2 - HELD THAT:- The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned Counsel for the Respondent.
The impugned judgment set aside and the Defendants in the suit granted a period of eight weeks from today within which to file their written statement after which the suit will proceed to be tried - appeal disposed off.
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2017 (8) TMI 1740
Delay in contribution to provident fund U/s. 43B - amount calimed was for the preceding year and not deposited in time thus being contrary to the provisions of section 43B and 36(1) (va), 2(24)(x) - HELD THAT:- In view of the proviso which is sought to be relied upon in our considered opinion, the contention which is sought to be relied upon for previous year was not based even before the CIT (Appeal) or before the Tribunal.
It is made clear that if the payment is made before filing of the return of the relevant year, the assessee will be entitled for benefit under Section 43-B. Question of detailed payment under PF Act and other act is subject matter of decision of Supreme Court.
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2017 (8) TMI 1739
Sanction of scheme of amalgamation - section 230-232 of Companies Act, 2013 - HELD THAT:- It was observed in that case that upon amalgamation of the Petitioner Subsidiary Company, with the Holding Transferee Company, no reorganization of the share capital of the Transferee Company is involved. The Scheme if sanctioned, would not be detrimental to the interests of the members or creditors of the Transferee Company or to the public interest at large. Further, the Regional Director has not made any observations in his affidavit to this effect. In these circumstances it was observed that there is no requirement for the Transferee Company to initiate separate proceedings. In the instant case also net worth of the Petitioner Subsidiary Company is positive and it has excess of assets over the liabilities.
The 'Scheme' of amalgamation of Petitioner Company with 'Transferee-Company' is sanctioned - Application allowed.
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2017 (8) TMI 1738
Availment of CENVAT Credit - duty paid on towers (in CKD/SKD form), parts of towers, shelters / prefabricated buildings purchased by them and used for providing output service - HELD THAT:- The controversy raised in these Appeals and the questions of law are covered by our judgment in the case of VODAFONE INDIA LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI II [2015 (9) TMI 583 - BOMBAY HIGH COURT] where it was held that 'Goods are neither ‘capital goods' as defined in rule 2(a)(A) of the CENVAT Credit Rules, 2004 and nor do they fall within the definition of ‘input' as defined in rule 2(k) thereof. This Court has further held that in any event the towers and parts thereof are in the nature of immovable property and are non-marketable and non-excisable and therefore, they cannot be classified as ‘inputs' so as to fall within the definition of rule 2(k) of the CENVAT Credit Rules, 2004.'
Appeals of the Assessee are dismissed.
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2017 (8) TMI 1737
Availment of CENVAT credit on the strength of advisory notes - advisory notes are proper document for availment of cenvat credit or not - CENVAT Credit - tower - input service or not for providing landline services.
Availment of CENVAT credit on the strength of advisory notes - advisory notes are proper document for availment of cenvat credit or not - HELD THAT:- On perusal of record, it appears that on the basis of advise of Transfer for Debit issued by Central Telecom Store Depot which procures the material and passed on the cenvat credit to various units alongwith the material supplied.
From the record, it appears that the issue has come before the Tribunal in appellant own case vide Final Order No. A/124/2012-EX where the matter was remanded to the adjudicating authority for fresh decision. So, on the first issue of cenvat credit, the impugned order is set aside and the matter remanded to the adjudicating authority for fresh adjudication by following the earlier order.
CENVAT Credit - tower - input service or not for providing landline services - HELD THAT:- For mobile phones, towers are needed the appellant is not providing mobile services. But, this fact is not emerging from the impugned order. On this issue also, the matter is remanded to the adjudicating authority.
The impugned order is set aside and matter is remanded to the adjudicating authority to decide the issue denovo, but by providing an opportunity of hearing to the appellant. Fresh evidence, if necessary, may be admitted as per law - appeal is allowed by way of remand.
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2017 (8) TMI 1736
Mainatinability of appeal - deletion of additions based on loose slips and GR slips during search operations - deletion of additions due to lack of evidence from the Revenue - HELD THAT:- Appeal admitted on the substantial questions of law.
Issue notice to the respondent.
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2017 (8) TMI 1735
Denial of Exemption u/s 54F - AO held that transaction as short term capital gains and not entitled for deduction and assessee has not furnished any evidence for acquiring the new property - HELD THAT:- When the assessee has made the full payment and taken possession of the house in the interest of justice the deduction should be allowed. A.R. further submitted that when the full payment was made if the deduction is not granted, it would cause injury to justice and the assessee would be placed with undue hardship.
D.R. did not produce any evidence to controvert the submission made by the assessee. Since the assessee has paid the complete consideration to the vendor of the land, which is duly acknowledged by the vendor, merely because of the registration is pending we are of the view that deduction allowable u/s 54 of the Act should not be rejected. This view is upheld by case of Balraj [2001 (12) TMI 51 - DELHI HIGH COURT]. Therefore, we direct the AO to allow the deduction u/s 54F of the Act. Accordingly, the appeal of the assessee is allowed.
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2017 (8) TMI 1734
Legal acceptability of the judgment and decree - grant of permanent injunction restraining the defendants from interfering with the possession of the plaintiff in respect of the property in question - ground was taken that the partition deed had not seen the light of the day for more than 22 years and when its genuineness was questioned on the basis of materials brought on record, the said issue had not been appositely addressed - HELD THAT:- The impugned judgment passed by the High Court is perused. It is clearly demonstrable that the High Court has neither analysed the evidence brought on record nor has it answered the issues raised in law. Stating the facts and thereafter reproducing few passages from the trial Court and ultimately referring to certain exhibited documents in a cryptic manner, we are disposed to think, will not convert an unreasoned judgment to a reasoned one. In fact, as we notice, the learned Judge has posed the question about the defensibility of the ultimate direction by the trial Court and thereafter proceeded to quote paragraphs from the trial Court judgment. Posing a question which is relevant for adjudication of the appeal is not enough. There has to have been proper analysis of the same. That apart, there are other issues they deserved to be dealt with. Therefore, the obvious conclusion is that the judgment passed by the High Court is not a reasoned one.
It is well settled in law that the reason is the life of law. It is that filament that injects soul to the judgment. Absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable.
In Girijanandini Devi [1966 (8) TMI 65 - SUPREME COURT], the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice.
In the case at hand, the learned Judge has really not ascribed any reason. There has been no analysis of facts or law. There is no discussion with regard to the points urged. While agreeing with the general approval of reasons to support the conclusions of the judgment in appeal, the High Court has to keep in view the language employed in Order XLI Rule 31 CPC and the view expressed in Santosh Hazari [2001 (2) TMI 131 - SUPREME COURT]. Analysis and reason are to be manifest. When that is not done, needless to say, the judgment of the High Court becomes indefensible.
The impugned judgment and decree passed by the High Court is set aside - matter remanded for fresh disposal in accordance with law - appeal allowed.
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2017 (8) TMI 1733
Liability of appellant to pay Excise duty in respect of waste and scrap arising at the job worker’s factory and cleared by the job worker without payment of duty - appellant is the principal manufacturer and was sending raw materials to their job workers for conversion in terms of N/N. 214/86-CE dated 25.3.1986 - HELD THAT:- The issue stands covered in favour of the appellant in their own case, for an earlier period, vide Final Order No. 41307/2017 dated 26.7.2017.
The demand is unsustainable - The impugned order is set aside - the appeal is allowed.
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2017 (8) TMI 1732
Assessment on a company which is not in existence - assessee company has been liquidated and does not exist in the eyes of law - HELD THAT:- As noted, it is a fact that assessment in this case was made on the assessee by issue of notice dated 29.03.2012. But, much before the date on initiation of the assessment proceedings, the assessee company had liquidated on 11.03.2009. We do not find any infirmity in the order of the CIT(A) in holding that the assessment framed as null and void in the name of the company which had already liquidated. Decided in favour of assessee.
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2017 (8) TMI 1731
Levy of service tax - construction of complex services - HELD THAT:- The identical issue has come up before the Tribunal in the case of M/S. RAJ CONSTRUCTION CO. VERSUS C.C.E. & S.T. JAIPUR-I [2017 (7) TMI 1468 - CESTAT NEW DELHI] where the ratio laid down by MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI [2008 (9) TMI 80 - CESTAT, CHENNAI] as well as COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] was discussed. Finally the Tribunal observed that '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'.
Thus, matter remanded to the adjudicating authority to decide the issue afresh in the light of the above observation, but by providing an opportunity of hearing to the appellant - appeal allowed by way of remand.
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2017 (8) TMI 1730
Taxability of salary received in India u/s 5(2)(a) - salary accrued to a non-resident seafarer for services rendered outside India on a foreign ship - period of stay in India - Assessee is a Marine Engineer engaged with M/s. OMI Crewing Services - persual of 'Continuous Discharge Certificate' it was found by the AO that assessee was on ship 'M/T Torm Agnes' of Singapore from 10.05.2011 to 11.11.2011 - as argued assessee was outside India for 187 days on employment and qualifies to be a 'Non-Resident'.
HELD THAT:- CBDT has issued a Circular No. 13/2017, dated 11.04.2017 wherein CBDT has clarified that the salary accrued to a non-resident seafarer for services rendered outside India on a foreign ship shall not be included in the total income merely because the salary has been credited in the NRE account maintained with an Indian Bank by the seafarer. It is well settled that the circular issued by the CBDT are binding on the Revenue authority. This position has been confirmed by the Hon'ble Apex Court in the case of Commissioner of Customs v. Indian Oil Corpn. Ltd. [2004 (2) TMI 66 - SUPREME COURT] as held when a Circular issued by the Board remains in operation then the revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the Statute.
Thus salary accrued to a non-resident seafarer for services rendered outside India on a foreign ship shall not be included in the total income merely because the salary has been credited in the NRE account maintained with an Indian Bank by the seafarer, therefore, based on the reasons mentioned above, the grounds raised by the assessee are allowed.
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2017 (8) TMI 1729
Appeal effect order - calling upon the Assessee to deposit “immediately now” a sum being the tax payable with reference to one of the issues that arose from the return filed by the Assessee - probability be required to deposit the entire demanded amount thus causing undue hardship and severe prejudice to the Petitioner particularly since the impugned order is on the face of it untenable in law.
HELD THAT:- Court notices that the SCN and the impugned ‘appeal effect order’ both dated 26th July 2017 were despatched on the same day under despatch Nos. 264 and 265. The demand for AY 2009-10 was in fact quantified only by the ‘appeal effect order’ passed on that very day i.e., 26th July 2017. That sum could not therefore be said to have not been paid as of that date when clearly the appeal effect order was being despatched together with the SCN.
When asked about this, Mr Jain, on instructions, states that the Income Tax Department will not give effect to the said SCN dated 26th July 2017 insofar as it proposes to initiate penalty proceedings against the Petitioner for alleged failure to pay the demand raised by the impugned ‘appeal effect order’ pertaining to AY 2009-10. The said statement is taken on record.
As clarified that there may be other questions that may arise after pleadings are complete in the matter.
The Court is satisfied, at the present stage, that there is a prima facie case in favour of the Petitioner for passing an ad interim order to the effect that no coercive steps should be taken against the Petitioner until further orders. The balance of convenience in passing such an interim order is in the circumstances also in favour of the Petitioner. Given the amount demanded from the Petitioner by the impugned ‘appeal effect order’, and the requirement that it should be paid ‘immediately now’ the Petitioner would be subjected to hardship and prejudice if such an interim order is not passed.
For the aforementioned reasons, it is directed that till the next date of hearing no coercive steps shall be taken against the Petitioner. List on 21st August, 2017 at 2:15 p.m.
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2017 (8) TMI 1728
Debarring the medical college of the Petitioner in the name and style of "Kanachur Institute of Medical Sciences and Research Centre" from making admission in MBBS Course for the academic years 2017-18 and 2018-19 and authorizing as well the Medical Council of India, to encash the bank guarantee of Rs. 2 crores furnished by it - requirement of opportunity of fair hearing - audi alteram partem Rule - HELD THAT:- The fact that the Petitioner's college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant. The observation of the Hearing Committee that Petitioner's college/institution has not explained the deficiency of faculty is belied by its representations and also the observations amongst others of the Oversight Committee.
The Hearing Committee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in Clause xii (a) to (c) of the Inspection Report in concluding that, the Petitioner's college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, thus stands vitiated by the non-consideration of the representations/explanations of the Petitioner's college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records.
The approach of the Respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to 'fair hearing', it is not longer res integra is an important ingredient of audi alteram partem Rule and embraces almost every facet of fair procedure.
In view of the persistent defaults and shortcomings in the decision making process of the Respondents, the Petitioner's college/institution ought not to be penalised. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, the conditional LOP granted to the Petitioner's college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed.
The impugned order is set aside - petition allowed.
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2017 (8) TMI 1727
Probation of the will - contention of Bikash is that Mary withdrew various sums of money from the joint accounts held in the name of Mary and Abha. The moneys that she withdrew belonged to Abha and accordingly formed part of Abha's estate and hence Mary must pay back/deposit all such moneys withdrawn by her.
HELD THAT:- A probate court is required to decide whether the Will in question was the last Will of the testator, whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will. The Probate Court has also the jurisdiction to consider whether execution of the Will was vitiated by fraud, undue influence, coercion etc. being practised upon the testator or whether the Will was executed by the testator under some mistake or induced by false representation. It is settled law that a Probate Court is not entitled to go into the question as to whether or not the testator had title or possession in respect of the property covered by the Will. The probate granted by a Testamentary Court does not establish that the testator had title to the property covered by the Will.
It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will in question purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. It would be most injudicious to upset the settled practice of this court which has been uniformly followed since a long time and for the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will.
The Probate Court has no authority or jurisdiction to decide questions of title. If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property. Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets. Such person has to establish his/her right to such property in an appropriately constituted civil suit following due process of law.
The rival claims made by Bikash and Mary in their respective applications are completely beyond the scope and ambit of the present probate proceeding - there are no reason to withhold grant of probate of the said Will.
Application disposed off.
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2017 (8) TMI 1726
Revision of assessment and grant of time to the petitioner to file objection - HELD THAT:- This Court has repeatedly pointed out that if assessments are sought to be reopened based on the information culled out from the Official Website, the Assessing Officers cannot assess the dealer to tax without conducting an enquiry and in fact elaborate procedure has been suggested in the decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. However, the respondent did not embark upon any such exercise, though he has admitted in the impugned assessment order that mere information on website may not constitute information. Therefore, the impugned order to the said extent proposing to assess the petitioner to higher rate of tax based on information gathered from the department website has to be set aside.
The writ petition is partly allowed and the finding rendered by the Assessing Officer on the proposal made in the notice dated 23.05.2017 is set aside and the matter is remanded back to the respondent for fresh consideration, who shall furnish full particulars as sought for by the petitioner, grant 15 days time to submit their objections and after affording an opportunity of personal hearing to the petitioner, redo the assessment to the said extent in accordance with law.
Petition allowed in part and part matter on remand.
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