Judgments
Income Tax Appellate Tribunal
Focus Consultancy Services vs. Asst. Director Of Income Tax
MANU/IL/0413/2021
14.10.2021
Direct Taxation
Retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood
The assessee has filed present appeal challenging the order passed by Learned Commissioner of Income Tax [CIT(A)], National Faceless Appeal Centre and it relates to the assessment year 2018-19. The assessee is aggrieved by the decision of Learned CIT(A) in confirming the disallowance of Rs.35.06 lakhs made under Section 36(i)(va) of the Income-tax Act,1961 [IT Act] relating to employees contribution to PF while processing return under Section 143(1)of the Act.
During the year under consideration, the assessee remitted employees contribution of ESI amounting to Rs.35,06,231 beyond the due date prescribed under the ESI Act. However, it was paid before the due date for filing return of income under Section 139(1) of the IT Act. Hence, the assessee did not make any disallowance under Section 36(1)(va) of the IT Act. While processing return of income filed by the assessee, the CPC disallowed the above said amount. Aggrieved, the assessee filed the appeal before the Learned CIT(A).
Karnataka High Court in the case of CIT Vs. Spectrum Consultants India Pvt. Ltd., wherein it was held that, the contributions, if paid before the due date prescribed under Section 139(1) of the IT Act, the same is allowable under Section 36(1)(va) of the Act since the provisions of Section 43B of the Act override section 36(1)(va) of the IT Act.
The decision rendered by Karnataka High Court in the case of Spectrum Consultants India Pvt. Ltd. and also in the case of EssaeTeroka Pvt. Ltd. Vs. DCIT supports the case of the assessee. There should not be any dispute that, the decision rendered by the jurisdictional High Court is binding on all authorities below it. Hence, the Learned CIT(A) was not justified in placing reliance on the decision rendered by non-jurisdictional High Court, when there is a decision of jurisdictional High Court on the very same issue.
The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited vs. CIT had held that, retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood. Consistent with the view taken in the above said cases, we set aside the order passed by Learned CIT(A) and direct the A.O. to delete the impugned disallowance. The appeal filed by the assessee is allowed.
Tags : Assessment Disallowance Legality
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High Court of Delhi
Intiyaz Sheikh vs Puma Se
MANU/DE/2716/2021
12.10.2021
Civil
In the absence of an application seeking condonation of delay, the written statement could not be taken on record
The present petition was filed impugning the order of the District Judge (Commercial), dismissing of the application of the Petitioner/defendant under Order VIII Rule1 of the Code of Civil Procedure, 1908 (CPC) for condonation of delay in filing the written statement. The said application was dismissed vide the impugned order, on the ground that the Commercial Courts, under the law have no power to extend the period of 120 days for filing the written statement.
The suit from which the present petition arises was filed by the Respondent/Plaintiff before the District Judge (Commercial Court), seeking permanent injunction to restrain the petitioner/defendant from selling goods under the mark 'PUMA' and logo and other ancillary reliefs. Vide order dated 15th February, 2019, the Commercial Court granted an ex parte ad interim injunction in the suit, in favour of the respondent/plaintiff and also appointed a Local Commissioner to, inspect the premises of the petitioner/defendant and take into custody all infringing goods at the said premises.
In Friends Motel Pvt. Ltd. Vs. Shreeved Consultancy LLP & Ors., this Court was seized of a situation where the application for condonation of delay was not filed within the overall time limited of 120 days and this Court held that in the absence of an application seeking condonation of delay, the written statement could not have been taken on record.
Admittedly, in the present case, though the written statement was filed on 11th December, 2019 the condonation of delay application was filed only on 26th February, 2020, as an afterthought. No reasons have been given as to why application for condonation of delay was not filed with the written statement and was filed only on 26th February, 2020. In fact, it noted in the order 15th January, 2020 of the Commercial Court that the petitioner has not filed any application for condonation of delay in filing the written statement. Yet the application was filed after almost 40 days thereafter.
Even in the application for condonation of delay filed by the Petitioner, no sufficient grounds have been given for delay in filing the written statement. Only vague and unsubstantiated averments have been made, that the petitioner was prevented from filing the written statement on time on account of strike of lawyers and the petitioner receiving threats of bodily harm. No documents were filed before the Commercial Court in support of the said ground of bodily harm.
In the present case, the Petitioner has neither made out sufficient cause nor demonstrated any extraordinary circumstances in support of condoning the delay. The Supreme Court, in Ambalal Sarabhai Enterprises Ltd. Vs. K.S. Infraspace has observed that, the provisions of the Commercial Courts Act, 2015 have to be strictly construed and if the provisions are given liberal interpretation, the object behind the enactment, of speedy disposal, will be defeated. No ground is made out for interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, 1950. Petition dismissed.
Tags : Delay Condonation Eligibility
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High Court of Delhi
Braj Kishore Pandey & Anr. vs The State & Ors.
MANU/DE/2722/2021
12.10.2021
Criminal
Juvenile Justice Board has exclusive jurisdiction relating to children in conflict in law; not for offences against children
Present petition is filed to quash the FIR registered against the Petitioners and thereby quashing every other proceeding undertaken in the said FIR. It is the case of the Petitioners as per the statutory provisions of the Juvenile Justice (Care & Protection of Children) Act, 2015 [JJ Act], no such power of constituting any Committee lies with the respondents and they are not authorized to run parallel proceedings, when Juvenile Justice Board is in place to look into the offences of any nature whatsoever while dealing with the issues or complaints of children in conflict with law, even otherwise the FIR is primarily based on the reports of the Committee whose constitution is not even defined in the entire Act.
The main argument of the learned counsel for the Petitioners is that as per Section 8(1) of the JJ Act, it is the only JJB, who can deal with the children who are in conflict with law and it has the only power to lodge the complaint /FIR per Section 8(3)(k) of the JJ Act, and no one else has the power to lodge such complaint.
In Lalitha Kumari v. State of UP, any receipt of an information regarding cognizable offence must be registered as an FIR. Admittedly letter/complaint, disclose cognizable offence(s) and thus, the FIR was registered.
This complaint was pursuant to an inquiry conducted by a 3- member vigilance committee conducting an inquiry into the allegations against the Petitioners which concluded the Petitioners, on several instances used filthy, offensive, taunting and humiliating language with the children resident in Observation Home for Boys as well as were physically abusive. Pursuant to the information received vide letter, the present FIR has been registered and investigation is ongoing.
Section 8(1) of the Act gives a power to the Board to deal with all proceedings under the Act relating to children in conflict. The only limitation for jurisdiction is crimes committed by children, which are subjected to the jurisdiction of Juvenile Justice Board. Pursuant to Section 8(1) of the JJ Act, the Juvenile Justice Board has exclusive jurisdiction relating to children in conflict in law; not for offences against children. Section 8(3) of the JJ Act is inclusive which no doubt give powers to the Board besides other power to order for registration of FIR for offences committed against any child in conflict but that does not debar others to lodge such FIR.
Rule 54 of JJ Rules, 2016 can be read in this context. The above rule prescribes a procedure for registration of FIR in cases where a complaint discloses cognizable offence against children. This Rule is in line with Section 154 of the Code of Criminal Procedure, 1973 (CrPC). Rule 54 of Rules allows any department or organization to register a complaint with the police of offences against children. There is no bar to the police to file a chargesheet in offences against children, and there is no specific provision for a department to file a complaint before the court of law. The procedure for complaint and otherwise, prescribed in the rules does not exclude the police in registering a case and carrying out investigation. Petition dismissed.
Tags : FIR Quashing Grant
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Income Tax Appellate Tribunal
Shri. M.S. Amarnath, Bangalore vs Assistant Commissioner Of Income
MANU/IL/0404/2021
11.10.2021
Direct Taxation
Without serving enhancement notice, it is settled position of law that, no enhancement can be made by the CIT(A)
In facts of present case, the assessee is an individual. For the assessment year 2012-2013, the return of income was filed declaring total income of Rs.26,63,180. The assessment was taken up for scrutiny by issuance of notice under Section 143(2) of the Income Tax Act, 1961 (IT Act). During the course of assessment proceedings, the A.O. noticed that, the assessee has got unsecured loans to the extent of Rs.33,25,000. The A.O. asked for confirmation for the same. The assessee had furnished the details. The A.O. noticed that, the assessee could not produce PAN on confirmation to the extent of Rs.14,00,000. Hence, the same was added back under Section 41(1) of the IT Act on account of cessation of liability.
Aggrieved by the order of assessment in making an addition under Section 41(1) of the IT Act amounting to Rs.14 lakh, the assessee preferred an appeal to the first appellate authority. The CIT(A) re-examined the entire issue. The CIT(A) held that, out of the total amount of unsecured loans of Rs.33,25,000, the details of the creditors to the extent of Rs.18,50,000 is available on record. According to the CIT(A), the balance credits of Rs.14,75,000 is unexplained and he added the same under Section 68 of the I.T. Act. The CIT(A) held that, the assessee has failed to satisfy the three conditions as per the provisions of Section 68 of the I.T. Act, namely, the identity of the creditors, capacity of the creditors and the genuineness of the transaction. Therefore, it was concluded by the CIT(A) that the addition of Rs.14,75,000 is to be made under Section 68 of the IT Act. In doing so, the CIT(A) enhanced the addition to Rs.14,75,000 in place of the A.O.'s addition of Rs.14,00,000. Aggrieved by the order of the CIT(A), the assessee has filed present appeal before the Tribunal.
It is the claim of the assessee that, the amount of loan has been received in June 2010 that is prior to the concerned assessment year, hence, the addition cannot be made under Section 68 of the IT Act. From the material on record, it is not clear, when this loan amount was received by the assessee. The assessee has to necessarily prove that, this amount has been received by him in June 2010. If the claim of the assessee that the amount has been received not in the relevant assessment year is true, the same cannot be added under Section 68 of the IT Act in view of the order the ITAT in the case of ACIT vs. Alvares & Thomas.
The order of the Tribunal was also confirmed by the Hon'ble Karnataka High Court in the case of CIT v. Alvares & Thomas. Moreover, in this case, the assessee has contended that the amount of loan taken from both Sri.Manu K.P. and Smt.Roopa Manu has been paid in the subsequent year. The matter needs to be examined afresh by the A.O. The A.O. is directed to delete the addition under Section 68 of the I.T. Act in respect of loans received from Manu K.P. and Roopa Manu, if the assessee is able to prove that loan amount has been repaid (claim of the assessee it has been repaid in the year 2014).
The CIT(A) has enhanced the addition to Rs.14,75,000 instead of Rs.14,00,000 made by the A.O. It is not clear whether the CIT(A) has served enhancement notice to the assessee. Without serving enhancement notice, it is settled position of law that, no enhancement can be made by the CIT(A). Therefore, the A.O. is directed after examining the issues that are restored to him, the total addition cannot exceed more than Rs.14,00,000. The appeal filed by the assessee is partly allowed.
Tags : Assessment Addition Legality
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Supreme Court
Gujarat State Disaster Management Authority vs. Aska Equipments Limited
MANU/SC/0842/2021
08.10.2021
Commercial
Requirement of deposit of 75% of the awarded amount as a pre- deposit is mandatory
Present appeal is against the impugned judgment and order passed by the High Court, by which the High Court confirmed the order passed by the learned Additional District Judge (Commercial), whereby the appellant herein was directed to deposit 75% of the awarded amount in terms of Section 19 of Micro, Small and Medium Enterprises Development Act, 2006 (‘MSME Act, 2006’).
The parties are governed by the provisions of the MSME Act, 2006. A dispute arose between the parties regarding payment of goods which was taken by the Appellant. The proceedings under Section 18 of the MSME Act, 2006 commenced. The Facilitation Council passed an award in favour of the respondent herein and directed the appellant to pay a sum of Rs. 105,053,387.
The short question posed for the consideration of present Court is, whether in an appeal/application filed under Section 34 of the Arbitration and Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006, the appellate court would have any discretion to deviate from deposit of 75% of the awarded amount as a pre-deposit?
As per Section 19 of the MSME Act, 2006, no application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the Appellant (not being a supplier) has deposited with it seventy-five per cent of the amount in terms of the decree, award or, as the case may be.
In view of the language used in Section 19 of the MSME Act, 2006 and decision in case of Goodyear India Limited v. Norton Intech Rubbers Private Limited and the object and purpose of providing deposit of 75% of the awarded amount as a pre-deposit while preferring the application/appeal for setting aside the award, it has to be held that the requirement of deposit of 75% of the awarded amount as a pre- deposit is mandatory. Therefore, as such, both the High Court as well as the learned Additional District Judge (Commercial), Dehradun were justified in directing the appellant to deposit 75% of the awarded amount as a pre-deposit.
In view of facts and circumstances and that the Petitioner-Authority is a Public Sector Undertaking, in exercise of the discretion vested with the court under Section of the said Act, present Court directs the Petitioner-Authority to deposit Rs.2,50,00,000 before the Appellate Authority within a period of four weeks from today. On such deposit, the District and Sessions Judge, Dehradun, is directed to take up the appeal on file and proceed with the same.
Tags : Pre-deposit Condition Legality
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Supreme Court
The Commissioner of Income Tax, Chennai vs. Mohammed Meeran Shahul Hameed
MANU/SC/0813/2021
07.10.2021
Direct Taxation
Receipt of the order passed under Section 263 of the IT Act by the assessee has no relevance for the purpose of counting the period of limitation
The Assessing Officer (AO) passed an assessment order under Section 143 (3) of the Income Tax Act ( IT Act) for the assessment year (AY) 2008-¬09 vide assessment order. The Commissioner of Income Tax initiated revision proceeding under Section 263 of the IT Act to revise the assessment order passed by the learned Assessing Officer and issued a notice to the assessee ¬ Respondent. The assessee – respondent herein filed written submissions. The learned Commissioner passed an order under Section 263 of the IT Act holding that, the Assessing Officer had failed to make relevant and necessary enquiries and to make correct assessment of income after due application of mind and thus the assessment order made under Section 143 (3) of the IT Act was held to be erroneous and prejudicial to the interest of the revenue. The learned Commissioner set aside the assessment order with a direction to Assessing Officer to make necessary enquiries on the aspects mentioned in the order under Section 263 of the IT Act.
The order passed by the learned Commissioner in exercise of powers under Section 263 of the IT Act was challenged by the assessee – respondent herein before the learned ITAT. Vide order, the learned ITAT accepted the contention on behalf of the assessee – Respondent herein and allowed the appeal filed by the assessee by holding that the revision order passed by the learned Commissioner was passed beyond the period of limitation.
By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the order passed by learned ITAT holding that the order passed by the learned Commissioner under Section 263 of the IT Act was barred by limitation. The High Court held that the date on which the order was received by the assessee – respondent herein is the relevant date for the purpose of determining the period of limitation under Section 263 (2) of the Act.
As mandated by sub¬section (2) of Section 263 of the IT Act, no order under Section 263 of the IT Act shall be “made” after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is “made” and not the order “received” by the assessee. Even the word “dispatch” is not mentioned in Section 263 (2) of the IT Act. Therefore, once it is established that the order under Section 263 of the IT Act was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the IT Act. Receipt of the order passed under Section 263 of the IT Act by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the IT Act.
In the present case, the order was made/passed by the learned Commissioner on 26th March, 2012 and according to the Department, it was dispatched on 28th March, 2012. The relevant last date for the purpose of passing the order under Section 263 of the IT Act considering the fact that the assessment was for the financial year 2008¬09 would be 31st March, 2012 and the order might have been received as per the case of the assessee – Respondent on 29th November, 2012. However, the date on which the order under Section 263 of the IT Act has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the IT Act. Therefore the High Court has misconstrued and has misinterpreted the provision of sub¬section (2) of Section 263 of the IT Act. The word used is “made” and not the “receipt of the order”. As per the cardinal principle of law, the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that, the order under Section 263 of the IT Act passed by the learned Commissioner was barred by period of limitation, as provided under sub¬section (2) of Section 263 of the IT Act.
The order passed by the learned Commissioner under Section 263 of the IT Act was within the period of limitation prescribed under sub¬section (2) of Section 263 of the IT Act. The present appeal is allowed.
Tags : Income Assessment Time period
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