Judgments
High Court of Delhi
Brajendra Singh Bhadouriya vs. Central Bureau Of Investigation
MANU/DE/4890/2022
30.11.2022
Criminal
Bail cannot be declined to an accused only because the accused is charge-sheeted for a grave economic offence
Present is an application on behalf of the Petitioner under Section 439 read with Section 482 of Code of Criminal Procedure, 1973 (CrPC) for the grant of regular bail. CBI filed the supplementary charge sheet without arresting the petitioner/accused. The Petitioner was summoned by the court pursuant to filing of the supplementary charge sheet. The Petitioner had duly appeared before the Learned Special Judge, CBI and moved a bail application. However subsequently, on his appearance, the Petitioner was taken into custody by the court rejecting his bail application. The petitioner continues to be in judicial custody since then.
It is also submitted that, the Petitioner had been co- operating with the investigation throughout. No recovery of any incriminating document/material has been made from/at the instance of the Petitioner.
There cannot be any quarrel about the proposition that bail cannot be declined to an accused only because the accused is charge-sheeted for a grave economic offence. In facts of the instant case, it is submitted on behalf of the Petitioner that, he never evaded the process of law during all these years since registration of the FIR in 2014 ; he has been joining the investigation as and when required ; he had not made any attempt of fleeing from justice. Same is not disputed. Petitioner has also submitted that investigation qua the petitioner has been completed.
Further, the supplementary charge sheet against the Petitioner, wherein the Petitioner has been implicated as accused/A-27, was filed, without arrest of the petitioner. The fact that so far, total 447 witnesses have been cited by the CBI vide charge sheets already filed in the matter, is not disputed. Petitioner's plea that it would take a long time in examination of these witnesses/conclusion of trial, more so, as the investigation is still continuing as per CBI, cannot also be disputed. The Petitioner is a government servant, (though stated to be under suspension) and is a family person and is not having any previous involvement.
In view of facts and circumstances and that the petitioner is a government servant, a family person, has been joining the investigation and cooperating in the investigation; and taking into account that the above co-accused persons have already been granted bail, trial in the matter would take a long time, the petitioner is admitted to bail on his furnishing a personal bond in a sum of Rs. 2,00,000 with one surety in the like amount, to the satisfaction of Learned trial Court, subject to the conditions.Bail application of the Petitioner is disposed off.
Tags : Bail Grant Eligibility
Share :
Top
Income Tax Appellate Tribunal
Shri Jitendra P. Shah, Ahmedabad vs. The DCIT
MANU/IB/0707/2022
30.11.2022
Direct Taxation
Where income is assessable to tax over a number of years, credit for tax deducted at source shall be allowed across those years in same proportion in which income is assessable to tax
Present is an appeal filed by the assessee against the order of the learned Commissioner of Income Tax (Appeals), in proceeding under Section 154 of Income Tax Act, 1961 (IT Act) vide orderpassed for the assessment year 2016-17.
The limited point for consideration is whether in the instant set of facts, the assessee is eligible to claim credit of TDS in assessment year 2016-17, when the assessee offers this income on "receipt" of the same, since the assessee is following the cash basis of accounting and offers income on receipt basis.
In the case of Shri Anupallavi Finance & Investments, the ITAT held that for the assessee, who was following cash basis of accounting, credit for TDS, under section 199 is to be allowed in year in which corresponding income is assessable/ offered to tax. In the case of Sasken Network Engineering Ltd, the ITAT held that in terms of Section 199, Rule 37BA provides that credit for tax deducted at source and paid to Central Government shall be given for assessment year for which such income is assessable/ offered to tax. The ITAT held that where income is assessable / offered to tax over a number of years, credit for tax deducted at source shall be allowed across those years in same proportion in which income is assessable/offered to tax. The ITAT, Ahmedabad on identical set of facts in the case of Chirag M Shah has also held that the assessee is entitled to get credit of TDS in the year in which he has offered to tax the professional fees income on receipt basis i.e. by following cash basis of accounting, even though the client/deductor had deducted tax in earlier years by following an "accrual" basis of accounting.
In view of the consistent position on this issue by various Courts, present Tribunal is of the considered view that the assessee is eligible to claim credit for TDS in assessment year 2016-17, when such professional income has been offered to tax by the assessee on "receipt" basis, since the assessee has been consistently following cash basis of accounting since inception, even though TDS was deducted on such income in the prior assessment year 2015-16. The appeal of the assessee is allowed.
Tags : TDS Credit Eligibility
Share :
Top
Income Tax Appellate Tribunal
Arun Polymers , Madurai vs. DCIT
MANU/IX/0854/2022
30.11.2022
Direct Taxation
If the employees' contribution to PF and ESI has been paid beyond the time prescribed under the relevant Act, then same is not allowable under Section 43B of the IT Act
The assessee is a partnership firm engaged in the business of manufacturing of plastic products. The Appellant had filed its return of income for assessment year 2018-19 on 29.09.2018, declaring a total income of Rs. 40,72,168. The DCIT (CPC), processed return of income filed by the assessee and issuedintimation under Section 143(1) of the Income-tax Act, 1961 on 03.09.2019 and determined total income of Rs. 56,58,512, by making addition towards disallowance of belated payment of employees' contribution of ESI and PF under Section 36(1)(va) r.w.s. 2(24)(x) of the Act. The assessee carried the matter in appeal before the first appellant authority, but could not succeed. The Learned CIT(A), National Faceless Appeal Centre (NFAC), Delhi, vide their order dismissed the appeal filed by the assessee.
The Hon'ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT, has considered an identical issue and held that, if the employees' contribution to PF & ESI has been paid beyond the time prescribed under the relevant Act, then same is not allowable under Section 43B of the Act, even after the payment has been made before the due date of filing return of income under the Income-tax Act. It was further held that such sum will be treated as income of the assessee in terms of section 36(1)(va) read with Section 2(24)(x) of the Act.
Therefore, by respectfully following the Hon'ble Supreme Court decision in the case of Checkmate Services Pvt Ltd vs CIT, present Tribunal is inclined to uphold the findings of the Learned CIT(A) and dismiss the appeal filed by the assessee. Appeal filed by the assessee is dismissed.
Tags : Assessment Addition Disallowance
Share :
Top
Supreme Court
Sansera Engineering Limited vs. Deputy Commissioner, Large Tax Payer Unit, Bengaluru
MANU/SC/1553/2022
29.11.2022
Excise
For claiming rebate of duty under Rule 18 of the Central Excise Rules, the period of limitation prescribed under Section 11B of the Central Excise Act, shall have to be applied
The original writ Petitioner/Appellant has preferred the present appeal feeling aggrieved with the impugned judgment passed by the High Court, whereby the Division Bench of the High Court has confirmed the common judgment and order passed by the learned Single Judge dismissing the writ petitions, upholding the order passed by the Respondent rejecting the claim of the appellant for rebate on the ground that the claim was barred by time/limitation prescribed under Section 11B of the Central Excise Act, 1944.
The short question which is posed for consideration of this Court is, whether the claim for rebate of duty provided under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1994 shall be applicable or not?
Section 11B of the Act is a substantive provision in the parent statute and Rule 18 of the 2002 Rules and notification dated 6.9.2004 can be said to be a subordinate legislation. The subordinate legislation cannot override the parent statute. Subordinate legislation can always be in aid of the parent statute. When the statute specifically prescribes the period of limitation, it has to be adhered to.
It is required to be noted that Rule 18 of the 2002 Rules has been enacted in exercise of rule making powers under Section 37(xvi) of the Act. Section 37(xxiii) of the Act also provides that the Central Government may make the rules specifying the form and manner in which application for refund shall be made under section 11B of the Act. In exercise of the aforesaid powers, Rule 18 has been made and notification dated 6.9.2004 has been issued. At this stage, it is required to be noted that as per Section 11B of the Act, an application has to be made in such form and manner as may be prescribed. Therefore, the application for rebate of duty has to be made in such form and manner as prescribed in notification dated 6.9.2004. However, that does not mean that period of limitation prescribed under Section 11B of the Act shall not be applicable at all as contended on behalf of the appellant. Merely because there is no reference of Section 11B of the Act either in Rule 18 or in the notification dated 6.9.2004 on the applicability of Section 11B of the Act, it cannot be said that the parent statute – Section 11B of the Act shall not be applicable at all, which otherwise as observed hereinabove shall be applicable with respect to rebate of duty claim.
While making claim for rebate of duty under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 shall have to be applied and applicable. In the present case, as the respective claims were beyond the period of limitation of one year from the relevant date, the same are rightly rejected by the appropriate authority and the same are rightly confirmed by the High Court. There is no reason to interfere with the impugned judgment and order passed by the High Court. Appeal dismissed.
Tags : Rebate claim Limitation period Applicability
Share :
Top
Supreme Court
Solomon Selvaraj and Ors. vs. Indirani Bhagawan Singh and Ors.
MANU/SC/1564/2022
02.12.2022
Civil
Application for permission to sue as an indigent person could not be allowed, if the allegations in the plaint could not show any cause of action
The original applicants – Plaintiffs have preferred the present appeal feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court confirming the order passed by the learned Trial Court rejecting an application filed by the Appellants seeking leave to file the suit as indigent persons.
From the scheme of Order 33 CPC, it emerges that the application under Order 33 Rule 1 CPC seeking permission to sue as indigent person can be rejected on the grounds mentioned in Order 33 Rule 5 CPC. It includes that the allegations in the application would not show cause of action …… or that the allegations made by the applicant in the applications show that the suit would be barred by law for the time being in force (Order 33 Rule 5(d) & (f) CPC). Identical question came to be considered by this Court in the case of Kamu Alias Kamala Ammal. While considering Order 33 Rule 5, CPC, it is observed and held that the application for permission to sue as an indigent person has to be rejected and could not be allowed if the allegations in the plaint could not show any cause of action.
When having prima facie found that the plaint does not disclose any cause of action and the suit is barred by res judicata, it cannot be said that the learned Trial Court committed any error in rejecting the application to sue as indigent persons.
Any observations made by the learned Trial Court and the High Court that the suit is barred by res judicata and/or on no cause of action shall be treated confine to deciding the application to sue as indigent person only. However, at the same time it will be open for the defendants to file an appropriate application to reject the plaint under Order 7 Rule 11 CPC and/or any other application to reject the plaint and as and when such application is/are filed, the same be considered in accordance with law and on its own merits without in any way being influenced by any of the observations made by the High Court while rejecting the application to sue as indigent persons. Present appeal stands disposed of.
Tags : Application Indigent persons Rejection
Share :
Top
Income Tax Appellate Tribunal
DCIT vs. Bindal Papers Mills Ltd.
MANU/ID/1872/2022
02.12.2022
Direct Taxation
Mere reflecting the unexplained cash in the books of accounts in absence of any supportive documents, cannot be ground for deletion of the addition
In present case, the assessee was engaged in manufacturing and trading of paper and paper board. The assessee filed return of income declaring 'NIL' income under Section 139(1) of the Income Tax Act, 1961 (IT Act). Subsequently, the assessee revised the return of income again declared 'NIL' income. The case of the assessee was selected under CASS for complete scrutiny. The assessment order came to be passed by making an addition of Rs. 1 crore seized from one Mr. Pankaj Goel which is found to be unaccounted cash of the assessee company. Accordingly, the said cash has been treated as unexplained money and added to the Assessee's total income under Section 69A of the IT Act. Further, the Learned A.O. made disallowance of Rs. 6,23,081 under Section 14A of the IT Act and computed the total income of the assessee at Rs. 1,06,23,081.
Aggrieved by the assessment order, the assessee has preferred an appeal. The Learned CIT(A) vide order deleted the addition of Rs. 1 crore made on account of unexplained money under Section 69 of the Act. Aggrieved by the said deletion of Rs. 1 crore by the CIT(A), which was made under Section 69A of the IT Act by the A.O., the Revenue has preferred the present appeal.
Admittedly, the assessee company is the owner of the seized cash, but the assessee has failed to explain with regard to source of the said cash. Therefore the Learned A.O. has rightly made the addition which should not have been interfered by the Learned CIT(A). The assessee has only relied on the cash book which cannot be believed in the absence of corroborative evidence such as bank statement, audited balance sheet, profit and loss account along with tax audit report for the year under consideration. The Learned CIT(A) without appreciating the above facts, based on the statements of the parties and mere relying on the cash book which was not corroborated with other documents, deleted the addition made by the A.O. which cannot be sustained.
When the cash is found with an assessee, it is the duty of the assessee to prove the source of such cash by providing sufficient evidence to come to a conclusion to satisfy the source of such cash. In the absence of such proof, the Revenue Authorities are bound to make additions. Mere reflecting the unexplained cash in the books of accounts in absence of any supportive documents cannot be ground for deletion of the addition. The Learned CIT(A) has committed an error in deleting the addition. Therefore, the order of the Learned CIT(A) is deleting the addition is set aside and the addition made by Learned A.O. is hereby sustained. Appeal filed by the Revenue is allowed.
Tags : Assessment Deletion Legality
Share :