Thank you for your judgements file. which is most helpful for me. with best regards, S.BUVANAA CHANDRA SEKAR B.Com., C.A.
--- On Thu, 9/20/12, Dipak Shah <djshah1944@yahoo.com> wrote:
From: Dipak Shah <djshah1944@yahoo.com>
Subject: [TaxFinSoft] Judgments
To: "AAYKARBHAVANGOOGLE" <aaykarbhavan@googlegroups.com>, "aaykarbhavan" <aaykarbhavan@yahoogroups.com>, "ahmedabadcas@yahoogroups.com" <ahmedabadcas@yahoogroups.com>, "ALWAR CA GROUP" <ALWAR_CHARTERED_ACCOUNTANTS@yahoogroups.com>, "aurangabadcas" <aurangabad_ca@yahoogroups.com>, "C A Bhupendra Shah Mumbai" <GlobalIndianCAs-owner@yahoogroups.com>, "C A Dipak Jain" <djain128@gmail.com>, "C A Krishanlal Bansal" <klbansal@gmail.com>, "C A Madhusoodan Kakkad." <camnkakkad@gmail.com>, "C A of Thane" <ThaneCAs@yahoogroups.com>, "C A Pune Groupd" <casofpune-subscribe@yahoogroups.com>, "CA News" <CANEWS@yahoogroups.com>, "ca expert team@yahoogroups.com" <ca_expert_team@yahoogroups.com>, "cacscw india group" <cacscwaindia@yahoogroups.com>, "cacscwaindia@yahoogroups.co.in" <cacscwaindia@yahoogroups.co.in>, "CAForumHyd@yahoogroups.com" <CAForumHyd@yahoogroups.com>, "Chartered Secretaries" <chartered_secretary@yahoogroups.com>, "Chartered_accountant@egroups.com" <Chartered_accountant@egroups.com>, "chartered accountant" <Chartered_accountant@yahoogroups.com>, "Company Secretaries Yahoo.Groups" <aicsc@yahoogroups.com>, "Company Secretary" <company_secretary@googlegroups.com>, "Company Secretary" <company_secretary@yahoogroups.com>, "CS A Rengarajan" <csarengarajan@gmail.com>, "CS" <cs_companysecretaries@yahoogroups.com>, "CS_MYSORE GROUP" <csmysore@googlegroups.com>, "Finpros Furum" <finpros@yahoogroups.com>, "ghaziabadca" <ghaziabad_ca@yahoogroups.com>, "icai-circ_ meerut" <ICAI_CIRC_MEERUT_CA@yahoogroups.com>, "itaxusers" <itaxusers@googlegroups.com>, "Jaipur CA" <Jaipur_CA@yahoogroups.co.in>, "JAIPUR CA JAIPUR CA GROUP" <jaipurca@yahoogroups.com>, "Jalgaon ICAI" <jalgaon@icai.org>, "Jalgaon C A" <jalgaoncas@googlegroups.com>, "lawprofessional Moderator" <lawprofessional-owner@yahoogroups.com>, "lucknow C A Group" <lucknow-ca@yahoogroups.com>, "lucknow" <Lucknowca_reinvented@yahoogroups.com>, "New Delhi CA forum" <new_delhi_ca@yahoogroups.com>, "nicsi@yahoogroups.co.in" <nicsi@yahoogroups.co.in>, "Panipat_CA@yahoogroups.com" <Panipat_CA@yahoogroups.com>, "CA RUNGTA PD" <pdrungta@gmail.com>, "Ranchi_Chartered_Accountants@yahoogroups.com" <Ranchi_Chartered_Accountants@yahoogroups.com>, "sensitiveadvisor2008@yahoogroups.co.in" <sensitiveadvisor2008@yahoogroups.co.in>, "taxfin" <taxfinsoft@yahoogroups.com>
Date: Thursday, September 20, 2012, 5:50 AM
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| | | | Posted on 19 September 2012 by Apurba Ghosh |
Court INCOME TAX APPELLATE TRIBUNAL
Brief On the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) has erred in allowing relief of Rs.12,23,979/- on account of allowable expenses under Section 40(a)(ia) ignoring the decision of the Hon'ble Supreme Court in the case of Geotze (India) Ltd. vs CIT (2006) 284 ITR 323 (SC) that held that the Assessing Officer had no power to entertain a claim made otherwise than by filing of a revised return of income
Citation ACIT, Circle 13(1) New Delhi (Appellant) vs M/s NHK Spring India Ltd. Plot no.31, Sector 3, IMT Manesar Gurgaon, Haryana 12050 PAN: AAACN 3501 G(Respondent)
Judgement IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: "E" NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M.GARG, JUDICIAL MEMBER ITA No: 285/Del/2012 Assessment Year: - 2007-08 ACIT, Circle 13(1) New Delhi (Appellant) vs. M/s NHK Spring India Ltd. Plot no.31, Sector 3, IMT Manesar Gurgaon, Haryana 12050 PAN: AAACN 3501 G (Respondent) Appellant by: Shri R.S.Negi, Sr.D.R. Respondent by: Shri Sandeep Sapra, Adv. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER This is an appeal filed by the Revenue against the order of the Ld. Commissioner of Income Tax (Appeals)-XVI, New Delhi dt. 14.08.2011 pertaining to the Assessment Year 2007-08 on the following ground. "1. On the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) has erred in allowing relief of Rs.12,23,979/- on account of allowable expenses under Section 40(a)(ia) ignoring the decision of the Hon'ble Supreme Court in the case of Geotze (India) Ltd. vs CIT (2006) 284 ITR 323 (SC) that held that the Assessing Officer had no power to entertain a claim made otherwise than by filing of a revised return of income". 2. The assessee is a company and is a Subsidiary of M/s NHK Spring Co.Ltd. Japan. It is engaged in the business of the business of manufacturing and marketing of the automobile suspension parts viz.,\ coil spring, stabilizers bars and torsion bars etc. The issue before us is whether the Commissioner of Income Tax (Appeals) was right in allowing deduction of expenses which were disallowed in the earlier year under Section 40A(i)(a), as the tax was deducted at source and paid during the year. The A.O. applied the decision of the Hon'ble Supreme Court in the case of Goetz India Ltd. Vs CIT 284 ITR 323 and held that a claim cannot be made by way of a letter, though the claim of deduction of the assessee appears to be justified keeping in view the relevant provisions of S.40A(i)(a) of the Income Tax Act, 1961. He was of the opinion that the assessee should have filed a revised return. Before the Commissioner of Income Tax (Appeals) the assessee had made a fresh claim. The Commissioner of Income Tax (Appeals) allowed the claim. Aggrieved the Revenue is in appeal before us. 3. Ld.D.R.Mr.R.S.Negi contends that the A.O. was not wrong in applying the judgement of the Hon'ble Supreme Court in Goetz India Ltd. Vs CIT (supra). He referred to the grounds of appeal raised by the assessee before the Commissioner of Income Tax (Appeals) and submitted that the Commissioner of Income Tax (Appeals) was wrong in holding that the A.O. should have allowed the claim. He emphasized that the assessee has not raised a fresh claim before the Commissioner of Income Tax (Appeals). 4. Ld.Counsel for the assessee Mr.Sandeep Sadra on the other hand pointed out that the assessee has made a fresh claim before the Commissioner of Income Tax (Appeals) and as all the facts are on record and as the Assessing Officer has himself recorded that the claim is correct, the Commissioner of Income Tax (Appeals) was right in allowing the claim. 5. Rival contents heard. Before the Ld.CIT(A) by way of written submissions the assessee pleaded as follows:- "As per the said judgement, it has not in any way curtained the authority of the appellate authorities to entertain a claim which is otherwise allowable as per the law. In view of this, it is humbly submitted that the claim which is admitted by the Assessing Officer himself also, as per his own order, is a justified claim but the same can only be claimed before him on the basis of revised return and hence disallowed, may please be entertained being a valid allowance as per the Income Tax Act, 1961. The said fact was also on record since in the tax audit report dated 22nd October, 2007 vide Annexure 6, the amount allowable is certified by the Tax Auditor." From the above it is clear that the assessee has requested that the Commissioner of Income Tax (Appeals) should have entertained a fresh claim as the facts are on record. 7. S.40A(ia) has been amended by insertion of a Proviso which reads as follows. "S.40 Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head "Profits and gains of business or profession"- (a) in the case of any assessee (i) ……………… (ia) any interest, commission or brokerage, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section (1) of section 200. Provided that where in respect of any such sum tax has been deducted in any subsequent year or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under sub-section (1) of section 200, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid". 8. As the Statute provides for a deduction and as the facts have not been disputed by the Ld.D.R., and as the Hon'ble Supreme Court in the case of Goetz India Ltd. has stated that the judgement does not effect the powers of the Appellate Authority, we uphold the order of the Ld.CIT(A). 9. In the result the appeal of the Revenue is dismissed. Order pronounced in the Open Court on 29th August, 2012. Sd/- Sd/- (C.M.GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: the 29th August, 2012 *manga Copy of the Order forwarded to: 1. Appellant; 2.Respondent; 3.CIT; 4.CIT(A); 5.DR; 6.Guard File By Order Dy. Registrar 1. Date of Dictation: 07/8 2. Draft placed before the Author on: 27/8 3. Draft proposed and placed before Second Member on: 4. Draft discussed/approved by the Second Member on: 5. Approved draft came to Sr.P.S. on: 6. Date of Pronouncement: 7. File sent to Bench Clerk on: 8. Date on which file given to Head Clerk on: 9. Date of dispatching the Order on:
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| | Posted on 19 September 2012 by Apurba Ghosh |
Court INCOME TAX APPELLATE TRIBUNAL
Brief This only issue in this appeal of assessee is against the order of CIT(A) in confirming the disallowance of interest expenditure by invoking the provisions of section 14A of the Act read with Rule 83(2)(ii) of the Income-tax Rules, 1962 (hereinafter referred to as the "Rules") and also Rule 8D(3) of the Rules at Rs.1,02,59,650/-. For this, assessee has raised following three effective grounds: "1. For that on the facts and in the circumstances of the case and in law, the CIT(A) erred in upholding the disallowance of Rs.1,08,65,937/- u/s. 14A read with Rule 8D under the I. T. Act, 1961. 2. For that on the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to correctly appreciate the details and explanations furnished by the assessee in support of the claim that no expenditure had been incurred in relation to earning exempt income in terms of Section 14A of the Act and without assigning cogent reasons upheld the disallowance made by the AO. 3. For that on the facts and in the circumstances of the case and in law, the disallowance u/s. 14A of the I. T. Act be deleted and/orreduced."
Citation Hindusthan Paper Corporation Ltd. (PAN: AAACH9463K) (Appellant) Vs. Deputy Commissioner of Income-tax Circle-5, Kolkata. (Respondent)
Judgement IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri C. D. Rao, AM] I.T.A No. 47/Kol/2012 Assessment Year: 2008-09 Hindusthan Paper Corporation Ltd. (PAN: AAACH9463K) (Appellant) Vs. Deputy Commissioner of Income-tax Circle-5, Kolkata. (Respondent) Date of hearing: 30.05.2012 Date of pronouncement: 22.08.2012 For the Appellant: Shri D. S. Damle For the Respondent: Shri L. K. S. Dahiya ORDER Per Mahavir Singh, JM This appeal by assessee is arising out of order of CIT(A)-VI, Kolkata in Appeal No. 129/CIT(A)-VI/Cir-5/10-11/Kol dated 30.09.2011. Assessment was framed by DCIT, Circle-5, Kolkata, u/s. 143(3) & 115WE(3) of the Income-tax Act, 1961 (hereinafter referred to as the "Act") for AY 2008-09 vide his order dated 29.12.2010. 2. This only issue in this appeal of assessee is against the order of CIT(A) in confirming the disallowance of interest expenditure by invoking the provisions of section 14A of the Act read with Rule 83(2)(ii) of the Income-tax Rules, 1962 (hereinafter referred to as the "Rules") and also Rule 8D(3) of the Rules at Rs.1,02,59,650/-. For this, assessee has raised following three effective grounds: "1. For that on the facts and in the circumstances of the case and in law, the CIT(A) erred in upholding the disallowance of Rs.1,08,65,937/- u/s. 14A read with Rule 8D under the I. T. Act, 1961. 2. For that on the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to correctly appreciate the details and explanations furnished by the assessee in support of the claim that no expenditure had been incurred in relation to earning exempt income in terms of Section 14A of the Act and without assigning cogent reasons upheld the disallowance made by the AO. 3. For that on the facts and in the circumstances of the case and in law, the disallowance u/s. 14A of the I. T. Act be deleted and/orreduced." 3. Brief facts leading to the above issue are that the assessee is engaged in the business of manufacturing of paper. The assessee filed its return of income on 30.09.2008. Subsequently, assesee's case was selected for scrutiny u/s. 143(2) of the Act. During the course of assessment proceedings, AO noticed from the audited accounts of the assessee that it has invested huge amount of capital in unquoted shares specially shares of subsidiary companies and earned exempted income at Rs.12.38 cr. Accordingly, AO invoked the provisions of section 14A of the Act r.w.s. Rule 8D of the Rules and made following disallowances: "The disallowance u/s. 14A as per Rule 8D is as under: (i) Rule 8D(2)(ii) – axb/c Here, a = amount of expenditure by way of interest other than the amount of interest included in clause (i) incurred during the previous year – Rs.31,19,00,000/-. b = the average of value of investment, income from which does not or 'shall not' form part of the total income, as appearing to the balance sheet of the assessee, on the first day and last day of the previous year – Rs.205,19,30,000/-. c = the average of the total assets as appeared in the balance sheet of the assessee, on the first day and the last day of the previous year – Rs.10,55,26,23,500/-. So, a x b/c = Rs.6,06,287/- (ii) Rule 8D(iii) – An amount = ½% of the average of value of investment, income from which 'does not' or 'shall not' form part of the total income, as appearing in the balance sheet of the assessee, on the first day and the last day of the previous year. ½% of Rs.205,19,30,000/- = Rs.1,02,59,650/- Therefore, total of Rs.1,08,65,937/- is considered and disallowed as expenditure related to earning of exempt income u/s. 14A, as per method provided under Rule 8D." Aggrieved, assesee preferred appeal before CIT(A), who also confirmed the disallowance of prorata interest expenditure. The CIT(A) held that the assessee has huge investment for which there are different types of expenses incurred by it i.e. interest and other expenses. According to CIT(A), funds of the assessee are going from common kitty and there is no distinction of own funds and borrowed funds. According to CIT(A), assessee cannot take the plea that at that particular time it had its own free funds and because of that borrowed funds were not utilized for investment in shares from where exempted income was earned. The CIT(A) finally held that the transactions includes investment yielding exempted income, which are integral part of the business of the assessee. Hence, he confirmed the addition made by AO. Aggrieved, now assessee is in appeal before us. 4. Before us Ld. Counsel for the assessee Shri D. S. Damle narrated the facts that the assessee during the year earned dividend income of Rs.12.38 cr. from shares held of its subsidiary Hindusthan Newsprint Ltd. and the same was exempted u/s. 10(33) of the Act and accordingly, the same was claimed as exempt. Ld. Cousnel stated that the assessee has made investments in two subsidiaries i.e. Nagaland Pulp & Paper Co. Ltd. (NPPCL) and Hindusthan Newsprint Ltd. (HNL). He explained the background of investment made and stated that the Govt. of India nationalised loss making NPPCL brought under the administrative control of the assessee by way of subsidiary. According to him, the newsprint division was converted into its wholly owned subsidary at the instance of Govt. of India and it functioned under the administrative control of Ministry of Industries, who required the control operations of these two subsidiary companies. According to Ld. Counsel, the Govt. exercises control over its subsidiaries through the agies of the assessee. He narrated that even financial assistance and funding provided by the Central Govt is routed through the assessee to these two companies. Even the entire investment in these two subsidiaries was made out of capital contribution received from Govt. of India. He drew our attention to audited accounts and took us to fresh investments made at Rs.17.46 cr. with HNL. He stated the fact that the said investment was made as per advice of Govt. of India vide letter dated 8(15)/2005-PE7 dated 18.05.2006, which is enclosed at assessee's paper book at pages 6 & 7. He drew our attention to clause (2) specifically wherein it is categorically mentioned that out of the proceeds investment in HNL of Rs.718.80 cr. was made, the assessee also invested a sum of Rs.60 cr. out of its internal accruals. The relevant para 2 reads as under: "2. The project cost of Rs.718.8 crore will be met by the Company through a term loan of Rs.500.00 crore from Banks and Financial Institutions and the balance amount of Rs.218.8 crore out of linternal accruals of HPC (Rs.60.00 crore) and HNL (Rs.158.80 crore) without any budgetary support or guarantee from GOI. HNL: has paid up equity of Rs.82.54 crore against the authorised equity capital of Rs.100 crore. HPC would contribute Rs.17.46 crore towards the remaining equity. The balance assistance of Rs.42.54 crore would be given by HPC through leasing of an equipment/component to be purchased for EDP towards which lease rental would be chargted by HPC from HNHL." Ld. Counsel stated that even this fact is clear from the P&L Account drawn as on 31.03.2008 which shows that the profit after tax, which assessee earned during the year at Rs.91.83 cr. And there is sufficient profit available with the assessee to cover up the cost of fresh investment of Rs.17.46 cr. He also drew our attention to Schedule 1A of the annual financial statement for the year year ending 31st March, 2008 which shows that during FY 2007-08 the Govt. of india infused capital fund of Rs.54.60 cr. in the assessee company and this was infused in the month of September 2007. Ld. Counsel stated that it means that the assessee was having Govt. of India funds to the extent of Rs.54.60 cr. in September, 2007 and as on 31.03.2008 the profit earned during the year amounting to Rs.91.83 cr.. He stated that assuming but not accepting that the internal accruals were not utilised for making fresh investments even though the fresh capital infused by Govt. of India during September, 2007 fund had a clear nexus with the investment made during the year and subsidiary company HNL from where it earned dividend of Rs.12.38 cr. He also narrated that the cost of investment Rs.21,392.30 lacs whereas assessee's own funds available are at Rs.87981.12 lacs. In such facts, Ld. Counsel stated that there is no need for AO to make disallowance under Rule 8D(2) of the Rules as there was no nexus between borrowed funds and acquisition of investment which gives exempted income to the assessee. According to Ld. Counsel the interest exenditure of Rs,6,06,287/- disallowed and confirmed by lower authorities should be deleted in full. He also stated that administrative expenses disallowed by AO at Rs.1,02,59,650/- as alleged by AO that this expenditure is in relation to earning exempt income is preposterous and illogical. Ld. Counsel for the assessee stated that there cannot be any expenditure to earn such dividend income because the dividend is from a subsidiary company HNL and the investment was made in earlier years not in this year. He stated that for collecting dividend warrant the assessee has not to incur any expenditure reason being the dividend warrrant is directly being credited to the bank of the assessee company. Even in collecting there is no expenditure incurred by assessee. In view of these facts, the Ld. Counsel for the assessee stated that the disallowance of administrative expenses however establishing any proximate cost or nexus of the same with the exempted income is without any basis. Hence, it deserves to be deleted. 5. On the other hand, the Ld. CIT, DR Shri L. K. S. Dahiya first of all relied on the orders of the lower authorities i.e. the orders of AO as well as the CIT(A). Ld. CIT, DR stated that the assessee has invested a sum of Rs.214 cr. approximately in investments i.e. in acquiring the shares of subsidiary particularly HNL whereas its own fund was to the tune of Rs.880 cr. Shri Dahiya argued that the funds of the assessee are from common kitty and there is no distinction of own funds or borrowed funds and assessee cannot take the plea that at that particular time it had its own free funds because the borrowed funds were utilised for the purpose of investment. According to him, all the transactions including investments yielding exempted income, are integral part of the business of the assessee. Ld. CIT, DR drew our attention to the provisions of section 14A of the Act r.w.s. 8D and stated that Rule 8D applies to the relevant assessment year 2008-09 and Rule 8D has prescribed a formula where the funds are common and cannot draw distinction between the borrowed funds and assessee's own funds in that eventuality Rule 8D will be applied for computation of disallowance. The AO has adopted the same and there is no other way out to compute the disallowance except as provided in Rule 8D of the Rules. With respect to disallowance on administrative expenses, Ld. CIT, DR Shri Dahiya stated that the assessee has made huge investment rendering into crore of rupees and that also Rs.214 cr. in acquiring shares of its subsidiaries which requires a lot of advisory consultation including payment of fees, technical deliberations, strategic investment, decision by the management which has a cost. Ld. CIT, DR also relied on the decision of Hon'ble Calcutta High Court in the case of Dhanuka & Sons Vs. CIT (2011) 339 ITR 319 (Cal). He also relied on 203 Taxman 639, He also relied on the decision of Hon'ble Calcutta High Court in the case of CIT Vs. Smt. Leena Ramachandran (2011) 339 ITR 296 (Cal) and the decision of ITAT Delhi Bench in the case of Technopak Advisors (P) Ltd. Vs. Addl. CIT (2012) 50 SOT 31 (Del. Bench). 6. In reply, Ld. Counsel for the assessee Shri Damle relied on the provision of section 14A (1) and (2) of the Act wherein the provision talks of nexus of borrowed fund utilised for tax free income and in case there is no nexus the disallowance cannot be made or the provisions of section 14A read with Rule 8D of the Rules cannot be invoked. He drew our attention to Rule 8D(1) of the Rules wherein the AO's satisfaction in respect to correctness of the claim of the assessee in relation to income which does not form part of the total income is must. Ld. Counsel stated that in the present case before us neither the AO nor the CIT(A) has tried to establish any nexus of borrowed funds with the investment bearing exempted income. In such case, no disallowance can be made. Ld. Counsel for the assessee relied on the case law of Hon'ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. vs. DCIT [2010] 328 ITR 81 (Bom.). 7. We have heard rival submissions and gone through facts and circumstances of the case. We find from the P&L Account of the assessee company for the year ended 31.03.2008 that it has earned dividend from subsidiary company at Rs.12.38 cr. The assessee's investments which are declared in assessee's Balance Sheet Schedule 6, which is enclosed at assessee's paper book page 5 are as under: (Rs. In Lakh) SCHEDULE : 6 INVESTMENTS – AT COST As at As at Long Term Investments: (i) Nagaland Pulp & Paper Company Limited 11,392.31 11,392.31 11,39,231 Equity shares of Rs.1000/- each (ii) Hindustan Newsprint Limited 9,999.99 8,253.99 9,99,99,900 Equity Shares of Rs.10/- each ________ _________ Total 21,392.30 19,646.30 It means that during the year the assessee has made investment in acquiring shares of HNL and total investment during the year was 17.74 cr. We further find from the documents placed before us at page 6 of the assessee's paper book that this investment of Rs.17.46 cr. on the advice of Govt. of India vide letter dated 18.05.2006 as reproduced above. As per Schedule 1A of the Annual Financial Statement as on 31.03.2008 it is evident that during the FY 2007- 08 Govt. of India infused capital fund of Rs.54.60 cr. in the month of September, 2007. It is also a fact that the assessee acquired shares of HNL in the month of September, 2007, it means that the fresh investment in the shape of acquiring of shares of HNL by the assessee was out of fresh capital infused by Govt. of India. As per the argument of Ld. Counsel and going through the P&L Account for the year ended 31.03.2008, we find that the profit after tax was at Rs.91.83 cr. which is also available to the assessee for making investment in purchase of shares and subsidiary HNL. These facts clearly establishes that the fresh investment in HNL by assessee was out of interest free funds and no borrowed funds were utilised. But taking the argument of Ld. CIT, DR Shri Dahiya that the funds of the assessee are going from common kitty and there is no distinction of own fund and borrowed fund and assessee cannot take the plea that at that particular time it had its own fund because borrowed funds were still there. According to Shri Dahiya, the transactions of investments yielding exempted income are integral part of the business of the assessee, but in any case, the AO has to prove the nexus between the borrowed funds and investments made by assessee for earning dividend income. Further, as regards to disallowance of administrative expenses, the assessee's contention was that there is only one dividend and which has been sent through ECS directly in the assessee's bank account by HNL. We find that the facts are clear that the dividend warrant was only one and HNL sent the dividend through banking channel i.e. through ECS and it seems that there is no expenditure involved in it. Even otherwise to substantiate that there requires same disallowance on acount of pro rata interest and also administrative expenses. AO has to find out the nexus which is the very essence for invocation of the provisions of section 14A of the Act. The relevant provision of section 14A reads as under: "14A. 38[(1)] For the purposes of computing the total income under this Chapter, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under this Act.] 38[(2) The Assessing Officer shall determine the amount of expenditure incurred in relation to such income which does not form part of the total income under this Act in accordance with such method as may be prescribed, if the Assessing Officer, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under this Act. (3) The provisions of sub-section (2) shall also apply in relation to a case where an assessee claims that no expenditure has been incurred by him in relation to income which does not form part of the total income under this Act :] Rlule 8D(1) is also reproduced as under: "8D. (1) Where the Assessing Officer, having regard to the accounts of the assesee of a previous year, is not satisfied with – (a) the correctness of the claim of expenditure made by the assessee; or (b) the claim made by the assessee that no expenditure has been incurred, in relation to income which does not form part of the total income under the Act for such previous year, he shall determine the amount of expenditure in relation to such income in accordance with the provisions of sub-rule (2). " 8. We find from the above factual and legal position, that we have already taken a view exactly on similar facts in the case of M/s. Balarampur Chini Mills Ltd. Vs. DCIT ITA No.504/K/2011 for AY 2008-09 dated 29.07.2011, wherein it is held as under: "8. Here in the present case, there is no linkage or nexus between the funds borrowed by assessee and the impugned investments, hence, no interest expenditure can be disallowed by mechanically applying the Provisions of Rule 8D of the Rules. The assessee has explained that the share capital and reserves, that is its own funds, were utilised for the purpose of investment in shares for earning dividend income and this has not been negated by lower authorities i.e. neither CIT(A) nor AO. The assessee has explained each and every investment with sources of funds and its utilization as well as opening application of funds and closing application of funds as noted above. It is an admitted position in law that expenditure can be disallowed U/s.14A of the Act if and only if it is incurred in relation to income which does not form part of total income. From the facts of the present case, it is clear that there is no link with expenditure for earning of dividend income incurred by the assessee and once the facts are clear, no disallowance can be made by invoking rule 8D of the Rules. Neither the AO nor CIT(A) has recorded any finding that having regard to the account of the assessee, they are not satisfied with the correctness of the claim of expenditure made by assessee or the claim made by assessee that no expenditure has been incurred in relation to income which do not form part of the total income under the Act for the relevant assessment year. In the absence of any such finding, facts of the present case shows that the investment in shares was made out of own capital employed and not from borrowed funds, no disallowance on account of interest expenditure can be made by invoking rule 8D of the Rules. Accordingly, in the given facts and circumstances, we delete the addition and allow this issue of assessee's appeal." We find from the above that the issue is squarely covered in favour of the assessee and hence, we allow the claim of assessee and this issue of assessee's appeal is allowed. 9. In the result, appeal of assessee is allowed. 10. Order pronounced in the open court on 22.08.2012. Sd/- Sd/- (C. D. Rao) (Mahavir Singh) Accountant Member Judicial Member Dated: 22nd August, 2012 Jd.(Sr.P.S.) Copy of the order forwarded to: 1. APPELLANT – Hindusthan Paper Corporation Ltd., 75C, Ruby Building, Park Street, Kolkata-700 016. 2. Respondent – DCIT, Circle-5, Kolkata. 3. The CIT(A), Kolkata 4. CIT Kolkata 5. DR, Kolkata Benches, Kolkata True Copy, By order, Asstt. Registrar. |
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| | Posted on 19 September 2012 by Apurba Ghosh |
Court HIGH COURT OF DELHI
Brief The relevant facts of the case are that the deceased workman was working as a clerk with the petitioner bank and during the relevant period he was posted at its G.B. Road Branch in Delhi. He was charge-sheeted on 20th December, 1996 on the following allegations:- "You attempted to defraud Shri Yogendra Kumar Gupta, holder of SB a/c NO. 10561 at the branch on 06.04.1996 by a sum of Rs. 5000/- and thus tried to derive undue pecuniary benefits at the cost of the Bank/Customer by committing various other irregularities detailed below:- That you have been maintaining SB-201 and 9644 with our G.B. Road Branch, New Delhi and SB-10392 at our Ballabhgarh Branch. That during the period between 25.06.1993 and 13.02.1996, you got discounted 16 cheques aggregating to Rs. 60,000/- drawn on your/third party Saving Bank account with our Ballabhgarh Branch, G.B. Road Branch, Faridabad Branch and Oriental Bank of Commerce, Sihi Faridabad Branch and withdrew the amounts there under through the above said SB account and derived undue pecuniary advantage at the cost of the Bank by committing various other irregularities detailed below:- That you issue Cheques drawn on your SB a/c no. 9644 maintained at G.B. Road Branch to various parties without maintain sufficient balances in the said SB account which were returned unpaid when presented in clearing and thereby tried to derive undue pecuniary advantage by committing various other irregularities detailed below:- That you misused additional housing loan facility availed at our Ballabhgarh Branch during March-April, 1996 and thereby derived pecuniary benefits at the cost of the Bank."
Citation SYNDICATE BANK ....Petitioner! Through: Mr. S.K. Taneja, Sr. Advocate with Mr. Puneet Taneja & Mr. Amrit Anand, Advocates Versus $ R.K.ROHILLA (SINCE DECEASED) THROURH LRs. …Respondents Through: Ms. Sumeet Kaur, Advocate
Judgement * IN THE HIGH COURT OF DELHI AT New Delhi % W.P.(C) No. 1888/2006 + Date of Decision: 13th August, 2012 # SYNDICATE BANK ....Petitioner! Through: Mr. S.K. Taneja, Sr. Advocate with Mr. Puneet Taneja & Mr. Amrit Anand, Advocates Versus $ R.K.ROHILLA (SINCE DECEASED) THROURH LRs. …Respondents Through: Ms. Sumeet Kaur, Advocate CORAM: * HON'BLE MR. JUSTICE P.K.BHASIN JUDGMENT P.K.BHASIN, J: In this writ petition the petitioner bank(hereinafter to be referred as „the management‟) has assailed the correctness of the award dated 3rd October, 2005 passed by the Central Government Industrial Tribunal-cum-Labour Court(„CGIT‟ in short) whereby the respondent-workman(hereinafter to be referred as „the deceased workman‟ since he expired during the pendency of this petition and is being represented by his legal heirs) was awarded the penalty of stoppage of four increments service after setting aside the punishment of dismissal from service which had been awarded to him by the management for his having committed certain acts of serious misconduct. 2. The award dated 3rd October, 2005 came to be passed after the following industrial dispute raised by the workman about his dismissal from service was referred by the appropriate Government to CGIT for adjudication:- "Whether the action of the Assistant General Manager, Syndicate Bank, Zonal Office, 6 Bhagwan Dass Road, New Delhi in dismissing from services to Shri R.K. Rohilla, Clerk of Syndicate Bank, G.B. Road Branch, Emp. No. 315331 New Delhi with effect from 21/11/1998 is justified, proper and legal? If not, what relief the concerned workman is entitled to?" 3. The relevant facts of the case are that the deceased workman was working as a clerk with the petitioner bank and during the relevant period he was posted at its G.B. Road Branch in Delhi. He was charge-sheeted on 20th December, 1996 on the following allegations:- "You attempted to defraud Shri Yogendra Kumar Gupta, holder of SB a/c NO. 10561 at the branch on 06.04.1996 by a sum of Rs. 5000/- and thus tried to derive undue pecuniary benefits at the cost of the Bank/Customer by committing various other irregularities detailed below:- That you have been maintaining SB-201 and 9644 with our G.B. Road Branch, New Delhi and SB-10392 at our Ballabhgarh Branch. That during the period between 25.06.1993 and 13.02.1996, you got discounted 16 cheques aggregating to Rs. 60,000/- drawn on your/third party Saving Bank account with our Ballabhgarh Branch, G.B. Road Branch, Faridabad Branch and Oriental Bank of Commerce, Sihi Faridabad Branch and withdrew the amounts there under through the above said SB account and derived undue pecuniary advantage at the cost of the Bank by committing various other irregularities detailed below:- That you issue Cheques drawn on your SB a/c no. 9644 maintained at G.B. Road Branch to various parties without maintain sufficient balances in the said SB account which were returned unpaid when presented in clearing and thereby tried to derive undue pecuniary advantage by committing various other irregularities detailed below:- That you misused additional housing loan facility availed at our Ballabhgarh Branch during March-April, 1996 and thereby derived pecuniary benefits at the cost of the Bank." 4. Since the deceased workman had delayed the filing of his explanation the management decided to hold an enquiry into the aforesaid allegations levelled against him. The enquiry officer after concluding the enquiry submitted his report dated 9th July, 1998 holding the deceased workman guilty of all the acts of misconduct attributed to him in the charge sheet. The Disciplinary Authority of the deceased workman concurred with the enquiry officer‟s report and inflicted the punishment of dismissal from service upon the deceased workman vide order dated 21st November, 1998. The deceased workman went in appeal against the order of the disciplinary authority but the same was rejected by the Appellate Authority by its order dated 10th March, 1999. 5. The deceased workman then raised an industrial dispute which was referred to the CGIT and there a statement of claim was filed on behalf of the deceased workman alleging that the enquiry held against him was not fair and proper and there were many violations of the principles of natural justice. 6. The management contested the claim of the deceased workman and pleaded in its written statement that the deceased workman was dismissed from service after holding a fair and proper enquiry against him in which he was given full opportunity to defend himself but he had failed to avail of the opportunity. The management had placed before the CGIT the enquiry record. No prayer was made by any of the parties to decide the validity of the enquiry as a preliminary issue. 7. After examining the enquiry record and other evidence adduced before it the CGIT observed as follows in its award:- ".......................Even if principles of natural justice have been followed in the inquiry procedure and the CSE has deliberately absented himself from the inquiry proceedings and the inquiry is quite proper, in that case too only charges regarding irregularity and negligence are proved against the workman applicant. It is settled law that the Tribunal can interfere in the quantum of punishment when the same is not in proportion to the misconduct committed by the CSE. In the present case the punishment is shockingly harsh. The CSE is found guilty of negligence and minor irregularities so there is no grave misconduct on the part of the applicant. The management should have considered his satisfactory long tenure of service and negligence committed by him he should have been awarded proportionate punishment. He was dismissed on 21.11.1998 by the management. The misconduct committed by the workman applicant does not warrant dismissal. It is the last penalty awarded in the extreme cases. If the penalty of dismissal is awarded for negligence or minor misconduct, in that case again when charge of serious misconduct is proved no other penalty than the dismissal would be awarded. Dismissal is the last penalty which should be awarded for very grave and serious charges found proved against the CSE. In the present facts and circumstances of the case the punishment of dismissal is not appropriate and it is not in proportion to the misconduct committed by the workman applicant. Interference is required on the part of the Tribunal for reducing extremely harsh punishment to the cumulative stoppage of four increments from the date of suspension of the workman applicant. He deserves to be reinstated and his wage paid after deducting the amount which is accrued by way of stoppage of four increments with cumulative effect. The punishment is no doubt shocking. The workman applicant has worked after his suspension period so he was found suitable for discharge of his duty when his suspension order was revoked and he was again entrusted duty as he has not committed any serious misconduct and grave misconduct and grave misconduct which warrants the extreme punishment of dismissal. The reference is replied thus:- The action of the Assistant General Manager, Syndicate Bank, Zonal Office, 6, Bhagwan Dass Road, New Delhi in dismissing from services to Shri R. K. Rohilla, Clerk of Syndicate Bank, G.B.Road Branch, Empl. No. 315331, New Delhi w.e.f 21.11.1998 is neither justified nor proper nor legal. The workman applicant deserves to be reinstated from 20.08.1998 with stoppage of four increments with cumulative effect. The workman applicant is entitled to get his entire wages after deduction of the amount of stoppage of four increments with cumulative effect within one month from the publication of the award." 8. Feeling aggrieved with the award of the CGIT the management approached this Court by filing the present writ petition. It was contended by Shri S.K.Taneja, learned senior counsel for the management that the CGIT had erroneously rejected the evidence of bank‟s customer who was an illiterate paan-wallah and from whose account the deceased workman had attempted to withdraw money in excess of what the illiterate paan-wallah wanted to withdraw with his assistance in good faith. It was further contended by the learned senior counsel that it had been erroneously held by the CGIT that the charges established during the enquiry were of mere negligence and minor irregularities on the part of the deceased workman not warranting the extreme penalty of dismissal from service. Mr. Taneja further contended that the CGIT had also erred in not leaving the question of punishment to be decided by the management even if some lesser punishment was to be awarded and awarding of the punishment of stoppage of increments without even enquiring from the management as to whether any increments were due or not to the deceased workman at the relevant time had even otherwise resulted in the deceased workman getting rewarded and being let off without getting punished since in fact no increments were due to him at the relevant time. Learned senior counsel concluded his submissions by saying that this is a fit case where this Court should exercise certiorari jurisdiction and quash the impugned award of the CGIT and restore the punishment awarded to the deceased workman by the management. 9. On the other hand, Ms. Sumeet Kaur, learned counsel for the legal heirs of the deceased workman supported the award of the CGIT and submitted that this is not a fit case for any interference in the award of the CGIT by this Court as no perversity had been committed by it in coming to the conclusion that the management could succeed only in showing that the deceased workman was only negligent and the impugned acts committed by him did not amount to serious acts of misconduct and that he had committed minor irregularities and directing his re-instatement. 10. I have given my due consideration to the rival submissions and also perused the Labour Court‟s record which includes the enquiry proceedings and also the enquiry officer‟s report. 11. There is no doubt that High Court should not interfere with the findings of the industrial adjudicators unless the same are perverse or are so unreasonable that no reasonable person would have come to those conclusions, as was the submission of the learned counsel for the legal heirs of the deceased workman. So, in order to find out whether the CGIT in the present case had acted unreasonably in not agreeing with the findings of the enquiry officer, as was the submission of the learned senior counsel for the management, I have examined the enquiry record. The charge of which the deceased workman was exonerated was of attempting to cheat an illiterate customer of the petitioner bank Yogender Kumar Gupta who was a petty paan-wala and was examined in the enquiry as MW-1. Enquiry record shows that MW-1 was regularly appearing in the enquiry for his statement but the deceased workman had been getting the proceedings adjourned on one pretext or the other. Since this material witness had come for his statement after closing his shop more than once and the deceased workman was getting adjournments to get the recording of his statement deferred, the enquiry officer finally decided to record his statement in the absence of the deceased workman. The CGIT had itself also observed in the impugned award that the deceased workman had been absenting from the enquiry deliberately. This is what MW-1 had stated before the enquiry officer:- "On 6.4.96 I went to Syndicate Bank G.B.Road Branch as I wanted to withdraw Rs.1500/- from my SB a/c NO: 10561 with them. As I am illiterate I used to go to Mr. Mishra, the pigmy agent for assisting in doing my banking transactions. On that day Mr. Mishra was not there so I approached Masterji, i.e, Mr. Rajinder Kumar Rohilla, staff of the branch and requested him to help me to withdraw Rs.1500/- from my said SB a/c. Masterji Sri Rajinder Kumar Rohilla brought a withdrawal slip and made me put my thumb impression on the blank withdrawal slip. He did not give me token. However immediately he gave me Rs. 1500/- (Rupees one thousand five hundred) which were in the denomination of Rs.500/- i.e. 3 x 500. After withdrawing the money I went to the market for making purchases and when I returned to my shop then somebody told me that I have been called by the Manager of Syndicate Bank to the branch. I went to the branch and met Mr. Arora. Mr. Arora enquired from me as to how much amount I have withdrawn from my a/c. I informed Shri Arora that I have asked for a withdrawal of Rs. 1500/- and Masterji (Mr. R. K. Rohilla) has given me the said payment in denomination of Rs. 500/-. Then on 8.4.96 Masterji (i.e. Mr. Rajendra Kumar Rohilla) approached me and informed that there is some mistake in my a/c and I should withdraw an amount of Rs. 6500/- from my said a/c and 1500/- would be given to him and rest of 5000/- I could re-deposit after a day. Accordingly on 8.4.96 I withdrew the said amt. of Rs. 6500/- and given Rs. 1500/- to Masterji (Mr. R.K.Rohilla). On 9.4.96 I have deposited an amt. of Rs. 5500/- in my said SB a/c which is inclusive of 500/- of savings lying with me. I have also given the above facts in writing in Hindi addressed to Sri M.K. Venkatesan, Vigilance Officer, Syndicate Bank, Delhi. During investigation the said statement has been told by me to Sri Anil Kumar Mishra, pigmy agent of the branch, recorded in Hindi, later on read it out to me and thereafter I put my thumb impression on that and the same was witnessed by Sri D.K.Arora, I identify the said document and standby the contents of the same. I also identify the withdrawal slip bearing no. 719580 on which my thumb impression was obtained by Shri Rohilla on 6.4.96 when it was blank. All the details were filled up by him subsequently. I reiterate that I told him to withdraw only Rs. 1500/- on 6.4.96 and received only Rs.1500/- in the denomination of Rs. 500/- rupee notes. I also identify/confirm that I have put my thumb impression to obtain the above withdrawal slip in the register. I also identify the withdrawal slip no. 719601 dt. 8.4.96 through which I had withdrawn Rs. 6500/- as insisted by Masterji (i.e. Sri R. K. Rohilla) for the reasons best known to him." 12. The enquiry officer, however, in order to give opportunity to the deceased workman to cross-examine MW-1 had still adjourned the proceedings many times after recording ex parte statement of Yogender Kumar Gupta. The enquiry record shows that every time the witness appeared in the enquiry adjournment was sought on behalf of the deceased workman for cross-examining him on one pretext or the other. Finally, the witness felt so frustrated by coming to attend the enquiry again and again that he refused to come any more for his cross-examination. 13. When the defence statement of the deceased workman was recorded by the enquiry officer this is what he had stated in respect of the charge of attempting to cheat the bank‟s customer Yogender Kumar Gupta:- "With regard to the charge of attempt to defraud it is totally a lie and due to the enmity in the branch some people have worked against me and made this to happen and as such there was no fraud taken place. Even there was no complaint from the customer and there is no loss to the bank and may be some irregularities here and there due to my ignorance. The withdrawal slip was issued by me and the token was issued to him and since he was in a hurry he asked me to pay Rs. 1500/- (Rupees one thousand five hundred) and rest of money he will collect it later. That being a Saturday the business hours were closed at 12.00 clock and since the customer did not turn up I was forced to cancel the same and again it is a fact that the customer Mr. Gupta did not come to the branch even after around 2.00 clock when I left the branch. He might have come afterwards and rest of the allegations were made against me. Or otherwise he would not have filled up a withdrawal for Rs.6500/- on 8.4.96 which was filled by some third person and his thumb impression was identified by some other person due to his necessity though Mr. A.K. Mishra was present in the branch, the very fact shows on 6th also he demanded that he needs 6500/- from his a/c........................." 14. Then the enquiry officer had generally questioned him and the question put to him in respect of the allegation of attempting to cheat Yogender Kumar and his answer are being re-produced below:- "Q. 05) : Have you paid Rs. 1500/- to Sh. Yogendra Kumar Gupta the holder of SB-10561, after getting the withdrawal slip passed or before that? Ans : I have paid it before passing of the withdrawal slip from my pocket as customer was known to me and balance of Rs. 5000/- he will collect it later." 15. From the foregoing narration of the statement of Yogender Kumar Gupta, which had remained unchallenged, and the defence version of the deceased workman it is clear that Yogender Kumar Gupta being a customer of the bank knew the deceased workman and he had obtained the thumb impression of Yogender Kumar Gupta on a withdrawl slip. Since Yogender Kumar Gupta was an illiterate person the deceased workman did nothing wrong in offering his help to him in getting the money withdrawn. However, the deceased workman had obtained his thumb impression on a blank slip and Yogender Kumar Gupta must have done that in good faith. Since the deceased workman had not challenged the statement of Yogender Kumar Gupta by not cross-examining him that his thumb impression was obtained on a blank withdrawl slip the same had to be accepted as correct and in fact the same stood corroborated also by the statement of the investigator who was also examined in the enquiry as MW-4 and who had claimed that Yogender Kumar had told him also that the deceased workman had obtained his thumb impression on a blank withdrawl slip and had paid him Rs. 1500/- from his pocket. Thus, the enquiry officer did nothing wrong in accepting the statement of Yogender Kumar Gupta and rejecting the cock and bull story put forth by the deceased workman that since the customer was in a hurry he had paid him Rs. 1500/- immediately and the customer had told him that he shall collect the balance money later on. This defence taken by the deceased was highly improbable. The deceased workman had no business to pay money from his own pocket to the bank‟s customer, as was admitted by himself before the enquiry officer, even if he was known to the customer, and telling him to go after obtaining his thumb impression on a blank withdrawl slip. That showed his bad intention right from the beginning. However, before he could withdraw any money from the account of the customer the official at the cash counter became suspicious and he insisted the presence of the customer himself and so no money could be withdrawn by the deceased workman from the account of the customer. The deceased workman did not say anything as to why he could not withdraw the money from the account of Yogender Kumar Gupta and how he got back Rs. 1500/- if not in the manner stated by Yogender Kumar Gupta in the enquiry. 16. The deceased workman was, however, exonerated by the CGIT of the aforesaid serious charge. The learned Presiding Officer of the CGIT had refused to accept the evidence of Yogender Kumar Gupta on totally flimsy grounds. First reason given was that his statement was not recorded in the presence of the deceased workman and he was also not produced in the enquiry to be cross-examined by the deceased workman. Other reason given was that the deceased workman was not given the copy of the preliminary investigation papers demanded by him. In my view, the rejection of the evidence of Yogender Kumar Gupta is totally unsustainable and the reasoning of the CGIT is perverse since it had been observed by the CGIT itself in the impugned award, and which observations have already been highlighted by me in para no. 7, that there was no violation of the principles of natural justice in the enquiry and also that the deceased workman himself had been deliberately avoiding to participate in the enquiry. So, no fault could be found in the recording of the statement of Yogender Kumar Gupta by the enquiry officer in the absence of the deceased workman after noticing that the charge-sheeted employee(CSE) had been avoiding to appear in the enquiry and accepting the objection of the management‟s representative that the witness was being put to great inconvenience by calling him again and again. Even when this witness was appearing for cross-examination the enquiry officer had noticed that the deceased workman was deliberately avoiding to appear in the enquiry and this observation was endorsed by the CGIT also. So, evidence of Yogender Kumar Gupta could not be excluded by the CGIT from consideration while examining the question whether the management‟s case stood proved or not in respect of this charge. 17. The CGIT also ignored the fact that the deceased workman had in his defence statement also admitted the management‟s case that he had obtained the thumb impression of Yogender Kumar Gupta on a withdrawl slip and without giving it back to him to be presented at the cash counter had himself paid Rs. 1500/- to the customer from his own pocket. He should have told the customer to himself present the withdrawl slip at the cash counter instead of telling to go with Rs. 1500/- only and come back to collect the balance amount. Even if the customer was in great hurry to go back the deceased workman had no business to retain the withdrawl slip with him for withdrawing the cash from the account of a customer in his absence. In these circumstances, non-supply of the documents/statements pertaining to the preliminary investigation, which admittedly was carried out by the management before charge-sheeting the deceased workman, to the deceased workman could not be made a ground by the CGIT for rejecting the statement of Yogender Kumar Gupta. In fact, the management had examined the investigator himself who had conducted the preliminary enquiry into all the allegations of misconduct levelled against the deceased workman and he had stated before the enquiry officer as to how in his opinion, which was based on what he was told by the witnesses examined by him during the investigation, including Yogender Kumar Gupta, and the relevant documents perused by him the deceased workman had committed various acts of misconduct enumerated in the charge-sheet. He was cross-examined at length by the representative of the workman even in the absence of enquiry documents having been supplied to him and so non-supply of those documents also could not be made a ground for rejecting the management‟s case in respect of this charge of which the deceased workman was exonerated by the CGIT. Even otherwise, the deceased workman had not even claimed before the CGIT that he had in any way been prejudiced due to non-supply of the preliminary investigation report and before this Court also the learned counsel for the legal heirs was unable to show any prejudice having been caused to the deceased workman. In fact, lengthy cross-examination of the investigator (MW-4) by the deceased workman even without copies of the papers relating to the investigation conducted by him negatived even a possibility of any kind of prejudice to the deceased workman on that count. 18. As regards other charges the CGIT had accepted the decision of the enquiry officer though it was observed that those were minor acts of misconduct/irregularities and that factor appears to have weighed with the learned presiding officer while considering the question of punishment and coming to the conclusion that the punishment of dismissal from service inflicted upon the deceased workman was quite harsh and disproportionate to the irregularities committed by him. In my view, the charge of attempting to cheat the bank‟s customer, which has also been now found to have been established, by itself is grave enough to attract the punishment of dismissal and considering the fact that the deceased workman had been found guilty of other acts of misconduct also by the CGIT there is no scope for any interference with the punishment awarded by the management. 19. This writ petition is accordingly allowed and the award of CGIT is set aside and the decision of the management to dismiss the deceased workman stands restored. P.K. BHASIN, J
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