|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1740 Records
-
2019 (9) TMI 1746
Dismissal of application for amendment of the plaint and for impleading another party - Order I Rule 10 and Order VI Rule 17, read with Section 151 of the Code of Civil Procedure, 1908 - HELD THAT:- The Single Judge of the High Court, while deciding the revision petition arising from the dismissal of the application, also came to the conclusion that since the facts that were sought to be added by way of amending the plaint were within the knowledge of the plaintiff, her application was hit by the proviso to Order VI Rule 17 of the CPC, which prevents a party from amending the plaint post the commencement of the trial, unless the Court concludes that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Notably, the Single Judge did not provide any reason for rejecting the prayer for impleadment, and proceeded to dismiss the entire application only by referring to the proviso to Order VI Rule 17 of the CPC.
Undoubtedly, in the present case, the trial has commenced, and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff have been filed. However, having regard to the fact that the two defendants and Pawan Kumar are close relatives, it seems possible that the plaintiff may have been kept in the dark regarding the possession of the suit shop. We do not wish to comment on whether the defendants and Pawan Kumar colluded to actively withhold this information from the plaintiff. But the fact remains that the plaintiff did not know about the internal arrangement between the defendants and Pawan Kumar. Therefore, even though the application for impleadment and amendment of the plaint was filed by the plaintiff belatedly, the interest of justice demands that the application be allowed, to ensure that in the eventuality of the suit being decreed in his favour, the plaintiff does not become vulnerable to another round of litigation at the stage of execution. We deem it fit, however, to impose costs of Rs. 10,000 on the plaintiff.
Conclusion - i) By virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. ii) Despite the trial having commenced, the interests of justice necessitated allowing the application for amendment and impleadment.
The orders passed by the Trial Court and the High Court rejecting the application for impleadment and amendment of the plaint set aside - application allowed.
-
2019 (9) TMI 1745
Classification of goods - Manufacture of power bank/ portable mobile charger out of imported components - concessional rate of duty under the Notification No. 12/2012/ Customs dated 13/03/2012, as amended - it was held by CESTAT that 'the power bank should be classified under Heading 8504 40 30 and is eligible for the duty exemption under Notification No. 12/2012-Cus.'
HELD THAT:- Appeal Admitted.
List the matter in the second week of April, 2020.
-
2019 (9) TMI 1744
TP adjustment towards AMP expenditure - International transaction or not? - adoption of the bright line test method for making the protective adjustment by the AO - HELD THAT:- A perusal of the impugned order shows that the same proceeds on the basis of the decision of this Court in CIT Vs. Sony Ericson Mobile Communication India Pvt. Ltd.,[2015 (3) TMI 580 - DELHI HIGH COURT] In that decision, this Court rejected the adoption of the bright line test method for making the protective adjustment by the Assessing Officer. In the present case as well, the Assessing Officer had adopted the bright line test method and the Tribunal by following the decision of this Court in Sony Ericson Mobile Communication India Pvt. Ltd. (supra) has rejected the said method. In view of the fact that this Court has already rendered its decision on the same issue, we dismiss this appeal.
-
2019 (9) TMI 1743
Clandestine removal - undervaluation of finished goods by the appellant sold through M/s JBCPL and M/s MBSC - shortage of finished goods during the stock taking at the factory premises - irregular Cenvat credit on the basis of four supplier of the scrap without accompanying of the goods - no cross-examination allowed - it was held by CESTAT that 'M/s JBCPL was selling the identical goods on behalf of the other manufacturer as a dealer. No statements have been recorded from alleged buyer of finished goods, whose name appeared on these loose sheets. Hence, there is no corroboration for the authenticity of loose sheets or averment of Shri Raman Bhatia.'
HELD THAT:- Appeal is admitted.
-
2019 (9) TMI 1742
Rejection of application filed by the petitioner being arraigned as accused under Sections 45 and 73 of the Indian Evidence Act, 1872 - seeking to refer the disputed cheque for scientific examination to ascertain the age of the ink - rejection of application without justifiable reasons - principles of natural justice - HELD THAT:- Section 73 of the Indian Evidence Act, 1872 relates to comparison of signature, writing or seal with others admitted or proved. However, it is a power vested with the Court of law to consider and decide the matter by sending the disputed cheque for experts' opinion or not.
In the instant petition, the petitioner is arraigned as accused in C.C. No. 709/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However, the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex. P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No. 709/2014 and the same has been challenged under this petition by urging the various grounds - the disputed cheque at Ex. P-1, relating to the age of ink, signature and contents found on the said cheque, is required to be examined by the handwriting expert and a report to be secured by the Forensic Science Laboratory. Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to examine the disputed cheque relating to the age of ink and also signature, contents of writing found on the cheque, which got marked as Ex. P1 in the aforesaid case be adjudicated between the complainant and the accused.
The offence under Section 138 of the N.I. Act even though it is in a quasi judicial in nature; therefore, Section 147 of the N.I. act has been introduced before the proceedings has been ended either in conviction or in acquittal, it is based upon the evidence either documentary or oral evidence has been adduced either of the parties and would close the proceedings that they may make use of the provision of Section 147 of N.I. Act. However, based upon the evidence adduced by the complainant and so also be subjected to test of the witnesses on the parts of the complainant and so also on the parts of the accused, the Trial Court has been appreciated the evidence on record keeping in view Section 3 of the Indian Evidence Act of 1872, if the accused has been convicted for the offence punishable under Section 138 of the N.I. Act then only it shall be termed in a criminal in nature. In this case, the accused is required to facing up of trial for the offence under Section 138 of the N.I. Act. Therefore, it is required to consider the application filed by him under Sections 45 and 73 of the Indian Evidence Act.
Conclusion - Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex. P-1 relating to the age of ink, signature and writing found on the cheque, it cannot be a ground to reject the application filed by the applicant-accused.
Petition allowed.
-
2019 (9) TMI 1741
Ownership and transfer of a property - HELD THAT:- The law seems to be well settled that where the property is transferred in breach of an order of injunction or an order of status quo, regardless whether the transferee is claimed to be a bona fide purchaser for value without notice, such a transfer is void ab initio and is required to be quashed and set aside.
It has been expressly held by Supreme Court in Satyabrata Biswas that an act done in the teeth of the order of status quo is clearly illegal. This has also been held by the Supreme Court in Surjit Singh [1995 (9) TMI 382 - SUPREME COURT]. This decision has held that when the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court has the duty as also right to treat the alienation as having not taken place at all for its purposes, when such alienation is in defiance of a restraint order.
The it is clear that the transfer of the immovable property in violation of an order of injunction issued by a Court of law, confers no right, title or interest in the transferee, as it is no transfer at all.
The agreement for sale dated 15th September 2015 in respect of the subject flat is held to be illegal, null and void, non-est, bad in law and not binding upon the Plaintiff. The Respondents No. 1 to 3 and Respondents No. 5 to 8 are directed to take all necessary steps to cancel the agreement for sale dated 15th September 2015 within a period of four weeks from the uploading of this judgment and order including by applying before the concerned Sub-Registrar of Assurances for the cancellation of agreement for sale dated 15th September 2015. In the event, the Respondents No. 1 to 3 together with the Respondents No. 5 to 8 fail to comply with these directions, the appointed Court Receiver shall carry out the same under the directions of this Court.
Conclusion - Transfers of property in violation of injunction or status quo orders are void ab initio.
Notice of motion disposed off.
-
2019 (9) TMI 1740
Validity of assessment framed by Addl. CIT Range-23, New Delhi - valid jurisdiction to act as the AO in the case of the assessee - HELD THAT:- Board may assign the power to any Income Tax Authority to exercise powers of the AO having regard to territorial area etc., or the Board may authorise or empower Pr. Director General, Pr. Chief Commissioner etc., to issue order in writing to assign powers of the A.O. to other Authorities including Addl. Commissioner of Income Tax as AO. Considering the provisions of Section 2(7A) which defines the definition of the Assessing Officer would make it clear that Addl. Commissioner of Income Tax could function as an AO when jurisdiction have been assigned to him by virtue of the directions or orders issued u/s 120(4)(b).
However, in the present case the Revenue Department has failed to produce any Order or Notification in favour of Addl. CIT, Range-23, New Delhi to act as an AO, despite giving sufficient opportunities. No order or direction of the Board or any other Authority have been produced on record u/s 120(1)(2) and (4) of the I.T. Act, 1961, empowering the Addl. CIT, Range-23, New Delhi, to act as an AO in the present case to pass the impugned assessment order.
In the present case, the Addl. CIT, Range 23, New Delhi lacks in jurisdiction over the case of assessee. In the absence of any Order or Notification issued by the Board or any other Income Tax Authority in this behalf, contentions of Ld. D.R. are rejected.
We are of the view that Addl. CIT, Range-23, New Delhi do not have jurisdiction over the case of assessee and since he did not assume the jurisdiction legally and validly, therefore, the impugned assessment order framed by him is vitiated and illegal and without jurisdiction. Appeal of Assessee allowed.
-
2019 (9) TMI 1739
Seeking quashing of impugned Charge Sheet - Whether the prolonged delay in the trial proceedings constituted a violation of the petitioner's right to a speedy trial under Article 21 of the Constitution, thereby warranting the quashing of the charge sheet? - HELD THAT:- In the case on hand, it is pending for trial from the year 2003. The second respondent after a period of 3 years from the date of final report, filed a petition for further investigation. It was ordered after a period of 5 years from the date of filing. It was ordered by the Trial Court for further investigation after a period of 8 years from the date of further investigation. Therefore, it causes 21 years delay in the process of trial. As the judgment held by the Hon'ble Supreme Court of India that no general guideline can be fixed by the Court and that each case has to be examined on its own facts and circumstances. It is the bounden duty of the Court and the prosecution to prevent unreasonable delay. The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the Courts and on the prosecution an obligation to proceed with reasonable dispatch. The prosecution failure to initiate the trial proceedings for the past 21 years without there being any lapse on behalf of the petitioner herein. Thus, permitting the State to continue with the prosecution and trial any further would be total abuse of process of law. So far, the petitioner had undergone the ordeal trial for the past 21 years, the pendency of the trial would not serve any purpose and as such it is liable to be quashed.
Conclusion - The delay of 21 years in the trial proceedings was unreasonable and constituted a violation of the petitioner's right to a speedy trial.
The impugned Charge Sheet in C.C. No. 360 of 2003 pending on the file of the learned Judicial Magistrate, Palani, Dindigul District, is hereby quashed. Accordingly, this Criminal Original Petition is allowed.
-
2019 (9) TMI 1738
Addition u/s 68 - unexplained cash credit - genuineness of transactions of loan not proved - onus to prove - effect of not producing the cash creditors before the AO - HELD THAT:- We observe that the alleged unsecured loan was received through account payee cheque, interest paid after deducting TDS, financial statement, income tax return, bank statement and confirmation of account were also filed.
We also find that the alleged loan amount was repaid in April 2010 which further adds to prove the genuineness of the loan. AO has not doubted any of the documents filed by the assessee and only reason for which he made addition was that the assessee failed to produce the cash creditors before him.
As in the case of S.K. Bothra & sons vs. ITO [2011 (8) TMI 22 - CALCUTTA HIGH COURT] while dealing with the issue of genuineness of transactions of loan taken by the assessee, held that the initial onus is always upon the assessee and if the same is discharged by the assessee by producing sufficient material in support of the loan transaction, the onus shifts to the AO and after verification, he can call for further explanation from the assessee.
Examining the fact we find that the assessee discharged its initial onus by filing necessary documents to prove identity, genuineness and creditworthiness of the loan taken and further the loan was also stands repaid. But the ld. AO made the addition only for not producing the cash creditors.
Thus, merely for not producing the cash creditors before the Ld. AO even when all the necessary documents as required to prove the identity, creditworthiness and genuineness of the cash creditors are furnished by the assessee, cannot be a reasonable basis to make addition for unexplained cash credit u/s 68 - Decided in favour of assessee.
-
2019 (9) TMI 1737
Denial of exemption notification No. 50/2003 CE dated 10.06.2003 - whether the appellant are liable to pay NCCD, auto Cess, Education Cess and Senior Higher Education Cess while claiming the exemption Notification No. 50/2003-CE dated 10.6.2003, or not? - HELD THAT:- Basically in the case of BAJAJ AUTO LIMITED VERSUS UNION OF INDIA & OTHERS [2019 (3) TMI 1427 - SUPREME COURT] wherein the Hon’ble Apex Court observed 'when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the “whole of the duty of excise or additional duty of excise.” We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit.'
Thus, the appellants are not liable to pay the Central Excise duty while claiming the exemption under Notification No. 50/2003-CE dated 10.6.2003 - while claiming the Notification No. 50/2003-CE dated 10.6.2003, the appellant are not liable to pay Education Cess and Senior Higher Education Cess.
Conclusion - NCCD, Education Cess, and Senior Higher Education Cess are considered surcharges on excise duty and should be exempted when the primary excise duty is exempted under the relevant notification. The appellants are not liable to pay NCCD, auto Cess, Education Cess and Senior Higher Education Cess and therefore, demand confirmed against the appellant vide impugned order are set aside.
Appeal allowed.
-
2019 (9) TMI 1736
Validity of the Deed of Assignment and the obligations of the appellant under the Real Estate (Regulation and Development) Act, 2016 (RERA) - delay to deliver possession of the flats to the respondents - Entitlement of respondents to interest for delayed possession under Section 18 of RERA - HELD THAT:- A perusal of the said Deed of Assignment clearly indicates that prior to the date of execution of the said Deed of Assignment, the said M/s. Rebuilt Developers had already sold various flats on the ground + 7 upper floors and 9 flats out of 10 flats proposed to be constructed on the 8th floor. The said Deed of Assignment clearly provided that the said M/s. Rebuilt Developers had authorised the appellant to receive balance consideration from the new flat purchasers and to issue NOC in favour of those new flat purchasers as per list annexed to the Deed of Assignment.
The names of flat purchasers including the respondents herein were mentioned in the list annexed at Annexure-II to the Deed of Assignment. A perusal of the said list indicates that out of 10 flats proposed to be constructed on 8th floor, two flats were purchased by the partners of the appellant and five flats were purchased by the respondents herein - The appellant had agreed to indemnify the society the cost of the litigation in respect of the claim raised by the new flat purchasers against the society or any individual member including the cost incurred for litigation in Court, Arbitration, advocate fees etc. - it cannot be accepted that the appellant had not received any consideration from the respondents and thus was not liable to pay any interest on the delayed period under Section 18 of the said RERA.
This Court enquired from the learned Counsel for the appellant whether the appellant is ready and willing to return the amount spent by the respondents to the erstwhile promoter with interest as provided under Section 18 of the said RERA without prejudice to any other remedy available to the respondents against the petitioner, the learned Counsel for the appellant on instruction states that his client is not agreeable to return the amount paid by the respondents with interest as contemplated under first part of Section 18 of the said RERA.
The said Tribunal had recorded various findings of facts after considering the submissions made by the parties and the documents on record. The said Tribunal has interpreted various provisions of the said RERA. There are no perversity in the findings rendered by the said Tribunal. No substantial question of law arises in these appeals.
These appeals are totally devoid of merit - appeal dismissed.
-
2019 (9) TMI 1735
Dismissal of appeal filed by the Revenue on monetary grounds - HELD THAT:- It is informed about the Instructions dated 11.07.2018 issued by the C.B.E. & C. in exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 fixing monetary limits below which appeal shall not be filed in the Tribunal. Subsequently, the monetary limit has been enhanced to Rs. 50 lakhs through the F.No.390/Misc/116/2017-JC dated 22 August, 2019. Further, the said instructions clarified that the said instructions will apply to all pending cases.
Further, the Hon’ble High Courts of Madras, Karnataka and Gujarat have held that the litigation policy containing monetary limit for filing appeals will apply to pending appeals also.
The appeal filed by the Revenue dismissed under litigation policy for the respondent.
-
2019 (9) TMI 1734
Possession of secured asset i.e. agricultural land/holding - Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- It is true that there is a remedy available to the petitioners to approach the Debt Recovery Tribunal but the order passed by the District Magistrate is void abnitio in the light of Section 31(i) of SARFAESI Act, 2002 which categorically provides that the provisions of Act of 2002 are not applicable in respect of any security interest created in agricultural land and therefore, once the Act of 2002 was not applicable in respect of the agricultural land, the order passed by the District Magistrate is a nullity and there appears to be no justification in forcing the petitioners to file an appeal.
The Apex Court has dealt with Section 31(i) of the SARFAESI Act, 2002 and in view of ITC Limited Vs. Blue Coast Hotels Limited [2018 (3) TMI 932 - SUPREME COURT] this Court is of the opinion that the impugned order passed by the learned District Magistrate deserves to be set aside and is accordingly set aside. However, it is made clear that the respondent no.2-Bank shall be free to take recourse to other remedies available under the law for realization of debts.
The writ petition stands allowed.
-
2019 (9) TMI 1733
Seeking rectification of mistake apparent in the record - applicant submits that the error in the order is apparent in the first paragraph itself indicating lack of information about registration when, according to him, such registration suffices to erase dutiability under Customs Act, 1962 - HELD THAT:- There are no reason to accept the application. The first paragraph of order, in common with others, is a summation of the facts as prevailing then and we find no error that can be read into it. The Tribunal has taken note of the submissions and incorporated it in the order. As no further evidence of non-applicability of customs law was brought on record, the findings of the Tribunal cannot be said to be flawed.
There are no reason to recall the order. The application is dismissed.
-
2019 (9) TMI 1732
Reversal of proportionate credit of the service tax utilised in the construction of flats - it is case of Revenue that the said sale and purchase of flats after the completion certificate do not attract any service tax liability - HELD THAT:- The issue is no more res integra and stands settled by the Tribunal in the decision of M/S ALEMBIC LTD. AND SHRENO LTD. VERSUS C.C.E. & S.T. VADODARA-I [2018 (10) TMI 1557 - CESTAT AHMEDABAD]. The said decision of the Tribunal stands upheld by the Gujarat High Court when the appeal filed by the Revenue was rejected reported as THE PRINCIPAL COMMISSIONER VERSUS M/S ALEMBIC LTD. [2019 (7) TMI 908 - GUJARAT HIGH COURT]. It stands held in the said decision that as the credit availed initially was in accordance with law and there being no provision in the CENVAT Credit Rules, 2004 for reversal of such credit after completion of the services, the revenue’s stand requiring such reversal cannot be upheld.
The impugned order is set aside - appeal allowed.
-
2019 (9) TMI 1731
Maintainability of appeal - monetary limit of amount involved in the appeal - HELD THAT:- It is informed that the Instructions dated 11.07.2018 issued by the C.B.E. & C. in exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 fixing monetary limits below which appeal shall not be filed in the Tribunal. Subsequently, the monetary limit has been enhanced to Rs. 50 lakhs through the F.No.390/Misc/116/2017-JC dated 22 August, 2019. Further, the said instructions clarified that the said instructions will apply to all pending cases.
The Hon’ble High Courts of Madras, Karnataka and Gujarat have held that the litigation policy containing monetary limit for filing appeals will apply to pending appeals also - reliance can be placed in COMMISSIONER OF C. EX., BANGALORE-III VERSUS PRESSCOM PRODUCTS [2011 (3) TMI 726 - KARNATAKA HIGH COURT] and COMMR. OF C. EX. & CUS., VADODARA-I VERSUS PHARMANZA HERBAL PVT. LTD. [2014 (9) TMI 330 - GUJARAT HIGH COURT].
The appeal filed by the Revenue dismissed under litigation policy for the respondent.
-
2019 (9) TMI 1730
Maintainability of appeal on low tax effect - HELD THAT:- We find that the amount disputed before us is below the tax effect limit prescribed by CBDT vide Circular No. 17/2019 dated 08.08.2019 for preferring appeals before tribunal by the revenue. On perusal of the Circular No. 17/2019 dated 08.08.2019 and the materials available on record, Ld. Sr. DR could not point out as to how and why such a Circular is not applicable to the facts of the case.
We find that the subsequent clarification dated 20.08.2019 makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals also. The Circular is binding on the tax authorities. Hence, we hold that the appeal of the revenue deserve to be dismissed on account of low tax effect vide Circular No. 17/2019 dated 08.08.2019 and subsequent clarification on 20.08.2019. Accordingly, on account of low tax effect case, we dismiss this appeal of revenue in limine, without going into the merits of the case.
-
2019 (9) TMI 1729
Estimation of income - bogus purchases - purchases were treated as non-genuine purchases and an estimated addition of 12.5% was made against the stated purchases - FAA restricted the additions to 6% - HELD THAT:- We find that the estimated addition of 6% is in accordance with the decision of this Tribunal in the case of assessee’s sister concern for AY 2011-12. Nothing on record would suggest any change in material facts. Therefore, finding no infirmity in the impugned order, we dismiss both the appeals.
-
2019 (9) TMI 1728
Challenge to Excise Policy Announcements - levy of additional fee and penalty, for producing and/or selling, less than the quota allotted to each licensee - Condition No. 10.28(A), but with specific focus on Condition No. 10.28(A)(8) of the Excise Policy for 2014-2015 - Condition No. 4.3 of the Excise Policy announced in respect of four consecutive years namely, 2013-14, 2014-15, 2015-16 and 2016-17 - HELD THAT:- The obligation to lift the minimum guaranteed quota, as fixed by the concerned Authority year after year, is imposed by Rule 35-A(22) of the H.P. Liquor License Rules, 1986 itself. The consequences that would fall upon the licensees in the event of their failure to fulfill this obligation, are also spelt out in Rule 35-A(22) itself. Therefore, what is left by Rule 35-A(22) to the executive is only the determination of the minimum guaranteed quota every year.
Rule 35-A(22) occupies the field in respect of issues (i) and (iii). It leaves issue (ii) alone to be determined by the executive, year after year, depending upon the average annual consumption in the State, district-wise. Therefore, what is left unoccupied by the statutory Rules, where the executive can have a play in the joints, is the fixation of minimum guaranteed quota every year. Since the other two issues fall in the occupied field, the respondents cannot issue Annual Policy Announcements, without amending the Rules.
Just as a Statute cannot override the Constitution and just as a Rule cannot override a Statute, an executive instruction cannot override a Rule. Fixing a rate of additional fee and a rate of penalty, by ignoring the rate of additional fee stipulated in Rule 35-A(22), would tantamount to executive instructions overriding the statutory Rules. Therefore, condition No. 4.3 of the Excise Policy announced in respect of the years 2013-14, 2014-15, 2015-16 and 2016-17, is ultra vires Rule 35-A(22) and hence, all the writ petitions of the retailers challenging condition No. 4.3, deserve to be allowed - it is pointed out that the respondents are entitled to collect the additional fee at the rate and in the manner prescribed in Rule 35-A(22), for all these years in question, including the years from which and during which, the Rule had been in force.
But since what is sought to be collected by way of additional fee and penalty, is as per the terms of the contract, they can be tested in terms of the provisions of the Contract Act. When so done, it is found that the wholesalers and manufacturers are imposed with a financial burden, not for their own failure to fulfill the contractual obligations, but for the failure of third parties namely retailers to fulfill their obligations - For one act of failure on the part of one of the three parties, which results in the loss of revenue in the form of duty of excise to the extent of a particular amount, it is unreasonable to impose a burden upon all the three categories of persons resulting in the collection of more amount than what was lost by way of duty of excise. Therefore, condition Nos. 10.28(A) (8) and 10.29 of the policy conditions for the year 2014-15, insofar as manufacturers and wholesalers are concerned, are liable to be set aside.
The writ petitions filed by the manufacturers and wholesalers are allowed and condition Nos. 10.28(A)(8) and 10.29, insofar as they impose the burden of additional duty and penalty for failure to lift the minimum guaranteed quota are set aside, however with a rider that they shall pay the license fee for the entire minimum guaranteed quota - the writ petitions filed by the retailers are partly allowed and condition No. 4.3 of the policy announcements for all the 4 years namely 2013-14 to 2016-17 are set aside, with a rider that the retailers will be liable to pay the license fee for the entire minimum guaranteed quota together with the additional fee as stipulated in Rule 35-A(22) of the Himachal Pradesh Liquor License Rules, 1986 for all the years during which the said rule is in operation.
-
2019 (9) TMI 1727
Income from house property - Determination of annual value or determined vacancy allowance - Deemed/assumed rental income - as argued property in question remained vacant throughout the year under appeal because no tenant could be found - CIT (A) held that the benefit of the vacancy allowance u/s 23(1)(c) of the Act is not available to the assessee as a property was not let out anytime, at least once - HELD THAT:- Having regard to the clear provisions of the Act, and harmonious reading of Section 23(1)(a) and 23(1)(c) of the Act, were hereby hold that the rent received by the assessee has to be treated as the annual value of the house and liable to tax under income from house property. The action of the ld. CIT (A) on this ground is hereby upheld.
Addition on account of cash and jewellery found from the residence of the Appellant and bank lockers in the names of family members of the Appellant during search and seizure operations - argument of the ld. AR that the jewellery was purchased with the imprest money of the company available with the assessee -HELD THAT:- Wealth Tax Return of Surpreet Suri and Kinty Suri[wife] shown a total amount of 2481.672 gms whereas the total jewellery found and recorded as per the panchanama pertaining to Surpreet Suri and Kinty Suri was 3622.15 gms. Since, the assessee has got two sons and no provision has been given by the revenue regarding the jewellery possessed by them in view of the Instruction No. 1916 dated 11.05.1994 in para (ii) and (iii), keeping in view the return income of the assessee which is 4.5 crores for the assessment year 2013-14, we hereby consider it fair to allow 200 gms of jewellery per person and thus, an amount of 740 gms can be treated as unexplained excess jewellery in the hands of the assessee against 2528 gms determined by the revenue.
This was due to the fact that the amount of jewellery of 1388 gms belonging to Narender Kaur Suri and Preet Pal Suri parents of the assessee, found at the residence of the assessee were treated in the hands of the assessee wrongly, even though the panchnama reveals clearly that the jewellery belongs to the parents of the assessee. The appeal of the assessee on this ground is treated as partly allowed.
........
|
9911796707
