Thursday, December 3, 2015

[aaykarbhavan] Judgments and Information [5 Attachments]







Process for NCLT & NCLAT constitution is initiated, Members selection has commenced: Jaitley

In a written reply to question in Rajya Sabha, Shri. Arun Jaitley, Minister of Corporate Affairs, states that Company Law Committee ('CLC') was constituted and had invited suggestions from all stakeholders on Companies Act, 2013; States that 2000 suggestions (approx.) were received by CLC and for broad-based deliberations on suggestions received, MCA had constituted 6 groups; States that process for constitution of NCLT has already been initiated and selection process for NCLT's Judicial & Technical Members and Technical Members of NCLAT has commenced; States that steps have been taken to make provision for infrastructure and other supportive requirements for NCLT/NCLAT: PIB

Click here to read more.

Details of effective CSR implementation to be known on annual filing completion: Jaitley

Shri. Arun Jaitley, Minister of Corporate Affairs, states that (in written reply to a question in the Rajya Sabha) CSR provisions are effective from April 1, 2014 and FY 2014-15 was the first year of implementation; States that cos. are still in process of filing their Annual Reports with MCA and details about number of cos. that have undertaken CSR activities are expected to be available after requisite filings are completed by the cos.: PIB  

Click here to read more.

Jaitley elaborates on the actions taken for Independent Directors' timely appointment by PSUs

In a reply to question in Rajya Sabha, Shri. Arun Jaitley, Minister of Corporate Affairs, states that the issue of director's appointment on PSU's board of directors falls in domain of Department of Public Enterprises ('DPE'); States that following actions have been taken for ensuring timely appointment of independent Directors ('IDs') on the Boards of Central Public Sector Enterprises ('CPSEs'): (i) Timelines are prescribed for various activities associated with the process of selection & appointment of non-official Directors, (ii) DPE is regularly requesting concerned administrative Ministries to furnish proposals for filling vacant positions, (iii) Search Committee has recently recommended names for filling around 150 positions of IDs on Boards of CPSEs (including listed CPSEs). Based on these recommendations, around 90 positions of IDs have already been filled: PIB 

Click here to read more.

CSR provisions exhort corporates to function in socially responsible manner: Jaitley

Shri. Arun Jaitley, Minister of Corporate Affairs, states that (in written reply to a question in the Rajya Sabha) CSR provisions under the Cos. Act, 2013, exhort eligible corporates to function in socially responsible manner with underlying spirit being to ensure use of scarce resources in a judicious manner for the greater good of Society; States that CSR implementation by prescribed cos. is mandatory under Cos. Act provisions; For effective implementation, MCA amended Schedule VII for ensuring that a wide range of activities are permissible CSR activities, issued clarificatory circular for liberally interpreting Schedule VII and amended CSR Rules: PIB

Click here to read more.

MCA has initiated against 2,414 cos. in FY 2014-2015 for non-redressal of investor grievances

In a reply to question in Rajya Sabha, Shri. Arun Jaitley, Minister of Corporate Affairs, states that as per MCA's investors' grievances data, action has been initiated against 319 cos. in 2012-13, 420 cos. in 2013-14 and 2,414 companies in 2014-15, clarifies that it is an on-going process; States that non-payment of dividend/interest by listed cos. is actionable u/s 11B/15C of SEBI Act, 1992: PIB 

Click here to read more.

Chidu, Eminent Lawyer & Former Finance Minister, Alleges "Malicious Onslaught" By CBDT; CBDT Defends Itself

P Chidambaram, eminent senior advocate and former Finance Minister, has alleged that the raids conducted by the Income-tax department on Advantage Strategic Consulting Pvt Ltd and Vasan Eye Care, companies said to be connected to his son, Karti Chidamabaram, is a "malicious onslaught" by the Government on him. In reply to the allegations, the CBDT has issued a press release dated 01.12.2015 stating that the search action was based on "credible information of tax evasion and large scale financial irregularities" committed by the group. It is also claimed that "certain incriminating evidence indicative of tax evasion and financial irregularities have been recovered during the on-going investigation". The CBDT has also clarified that there is no collateral purpose behind the search action and that no political person or his family member have been targeted



S. 68 (bogus share capital): Despite statement of Mukesh C. Choksi & Jayesh Sampat admitting bogus share capital, addition cannot be made in assessee-company's hands
If the share application money is received by the assessee company from alleged bogus share holders who's name are given to the AO then the department is free to proceed to reopen their individual assessments in accordance with law but it cannot be regarded as undisclosed income of assessee company

ITO vs. Superline Construction P. Ltd (ITAT Mumbai)

COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: November 30, 2015 (Date of pronouncement)
DATE: December 3, 2015 (Date of publication)
AY: 2007-08
FILE: Click here to download the file in pdf format
CITATION:
S. 68 (bogus share capital): Despite statement of Mukesh C. Choksi & Jayesh Sampat admitting bogus share capital, addition cannot be made in assessee-company's hands
(i) The Assessing Officer failed to appreciate that there is no documentary evidence against the assessee-company to support such impugned additions. The Assessing Officer failed to appreciate that as against the statements of any person recorded u/s 143(3) r.w.s. 147, the assessee-company has fully discharged the burden of proof, onus of proof and explained the source of share capital and advances received by established the identity, creditworthiness and genuineness of transaction by banking instruments with documentary evidences. The further stand of the assessee has been that the assessee substantiated the details with the documentary evidences as extracted from the website of Ministry of Corporate Affairs, Government of India before the Assessing Officer. These facts have not been rebutted on behalf of the Revenue.
(ii) If the share application money is received by the assessee company from alleged bogus share holders who's name are given to the AO then the department is free to proceed to reopen their individual assessments in accordance with law but it cannot be regarded as undisclosed income of assessee company.
(CIT vs. M/s. Lovely Exports (Pvt) Ltd, reported in [2008] 216 CTR 195 (SC), ITO (10(2)(3) vs. J.J. Multitrade Pvt Ltd, in ITA No. 2158/Mum/2014 : AY 2007-08, J-Bench & ITA No.2159/Mum/2014 : AY 2008-09, J-Bench ITAT E Bench in M/s. SDB Estate Pvt Ltd vs. ITO-(5)(3)(2) in ITA No. 584/Mum/2015: AY 2008-09 ITO – 10(2)(1) vs. M/s. Deep Darshan Properties Pvt Ltd in ITA No. 2117/Mum/2014 : AY 2006-07 and ITA No.2118/Mum/2014 : AY 2007-08, ITO –10(2)(3) vs. Aajivan Computers Pvt Ltd in ITA No.2160/Mum/2014 :AY 2006-07, ITO –10(2)(3) vs. Dignity Securities Trading Pvt Ltd in ITA No.2157/Mum/2014 :AY 2006-07, ITO –10(2)(1) vs. M/s. Blue Hill Properties Pvt Ltd in ITA No.2119/Mum/2014: AY 2006-07 referred)

Related Judgements

  1. ITO vs. Rakam Money Matters P. Ltd (ITAT Delhi) 
    The only issue here is the addition of Rs.60 lacs made by the Assessing Officer as unexplained credit on account of the share application money. On going through the facts of the case, we notice that assessee has filed the…Read more ›
  2. EXL India Business Services Pvt Ltd vs. ACIT (ITAT Delhi) 
    The assessee filed the return of income of 29th October 2007, and that the time limit for issuance of notice, under section 143(2), selecting the case for scrutiny assessment expired on 30th September 2008. It is also an admitted position…Read more ›
  3. DCIT vs. Envision Investment & Finance Pvt. Ltd (ITAT Mumbai) 
    Even if the loss claimed by the assessee relating to share transactions as well as loss resulting on valuation of closing stock is treated as speculation loss, the same is entitled to be set-off against the profit on sale of shares in view of DLF Commercial Developers Ltd. 261…
  4. Uday C Tamhankar vs. DCIT (ITAT Mumbai) 
    The assessing officer did not bring any material on record to support his case of estimation of professional receipts of earlier years. We also notice that the assessing offer has assessed the net profit on the alleged suppressed professional receipts, meaning thereby, the assessing officer has presumed that the…
  5. R. L. Allied Industries vs. ITO (ITAT Delhi) 
    As per Section 153A(1)(b), the Assessing Officer is empowered to assess or reassess the total income of the six assessment years immediately preceding the assessment year relevant to the assessment year in which search is conducted. Thus, in other words,…Read more ›

S. 271(1)(c): A penalty notice u/s 274 which does not strike out the irrelevant portion & which does not specify whether the penalty is for "concealment" or for "furnishing inaccurate particulars" renders the penalty order void
The next argument that the show cause notice u/s.274 of the Act which is in a printed form does not strike out as to whether the penalty is sought to be levied on the for "furnishing inaccurate particulars of income" or "concealing particulars of such income". On this aspect we find that in the show cause notice u/s.274 of the Act the AO has not struck out the irrelevant part. It is therefore not spelt out as to whether the penalty proceedings are sought to be levied for "furnishing inaccurate particulars of income" or "concealing particulars of such income"

Suvaprasanna Bhattacharya vs. ACIT (ITAT Kolkata)

COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS: , ,
COUNSEL:
DATE: November 6, 2015 (Date of pronouncement)
DATE: December 3, 2015 (Date of publication)
AY: 2006-07
FILE: Click here to download the file in pdf format
CITATION:
S. 271(1)(c): A penalty notice u/s 274 which does not strike out the irrelevant portion & which does not specify whether the penalty is for "concealment" or for "furnishing inaccurate particulars" renders the penalty order void
(i) On the question whether proper satisfaction was arrived at by the AO for initiating penalty proceedings u/s 271(1)(c), the order of assessment nowhere spells out or indicates that the AO was of the view that the assessee was guilty of either concealing particulars of income or furnishing inaccurate particulars of income. The offer to tax of income by the assessee has just been accepted. It is no doubt true that it is not the requirement of the law that the satisfaction has to be recorded in a particular manner, especially after the introduction of the provisions of Sec.271(1B) of the Act with retrospective effect from 1.4.1989. Nevertheless, as laid down by the Hon'ble Delhi High Court in the case of Ms.Madhushree Gupta, the position of law both pre and post Sec.271(1B) of the Act is similar, inasmuch, the AO will have to arrive at a prima facie satisfaction during the course of proceedings with regard to the assessee having concealed particulars of income or furnished inaccurate particulars, before he initiates penalty proceedings 'prima facie' satisfaction of the AO that the case may deserve the imposition of penalty should be discernible from the order passed during the course of the proceedings. At the stage of initiation of penalty proceeding, the order passed by the AO need not reflect satisfaction vis-a-vis each and every item of addition or disallowance, if overall sense gathered from the order is that a further prognosis is called for. The decision of the Hon'ble Supreme Court in the case of MAK Data (P) Ltd. (supra) has to be understood in the context of the facts of the said case. The Revenue places reliance only on the sentence appearing in para-10 of the judgment without reading it in the context of the observations in the last portion of para-9 of the said judgment. Therefore even the Hon'ble supreme court's decision suggests that the satisfaction need not be recorded in a particular manner but from a reading of the assessment order as a whole such satisfaction should be clearly discernible. If the AO accepts all the contentions of the assessee and the offer of income that has not been declared in the return of income to tax without indicating either directly or indirectly that the assessee has concealed particulars of income or furnished inaccurate particulars of income, it cannot be said that satisfaction for initiation of penalty proceedings is discernible from the order of assessment. If the assessee in good faith offers income to tax voluntarily prior to any positive detection by the AO, such voluntary offer cannot be taken advantage of by the AO to initiate penalty proceedings against the assessee without specifying the reasons why penalty proceedings are initiated u/s.271(1)(c) of the Act. In the present case, we have read the order of assessment as a whole and are satisfied that satisfaction for initiation of penalty proceedings is not discernible from the order of assessment. We therefore concur with the argument of the learned counsel for the assessee that initiation of penalty proceedings was not proper in the present case and on that ground the imposition of penalty u/s.271(1)( c) of the Act is unsustainable.
(ii) The next argument that the show cause notice u/s.274 of the Act which is in a printed form does not strike out as to whether the penalty is sought to be levied on the for "furnishing inaccurate particulars of income" or "concealing particulars of such income". On this aspect we find that in the show cause notice u/s.274 of the Act the AO has not struck out the irrelevant part. It is therefore not spelt out as to whether the penalty proceedings are sought to be levied for "furnishing inaccurate particulars of income" or "concealing particulars of such income".
(iii) The Hon'ble Karnataka High Court in the case of CIT & Anr. v. Manjunatha Cotton and Ginning Factory, 359 ITR 565 (Karn), has held that notice u/s. 274 of the Act should specifically state as to whether penalty is being proposed to be imposed for concealment of particulars of income or for furnishing inaccurate particulars of income. The Hon'ble High court has further laid down that certain printed form where all the grounds given in section 271 are given would not satisfy the requirement of law. The Court has also held that initiating penalty proceedings on one limb and find the assessee guilty in another limb is bad in law. It was submitted that in the present case, the aforesaid decision will squarely apply and all the orders imposing penalty have to be held as bad in law and liable to be quashed. It is clear from the aforesaid decision that on the facts of the present case that the show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed. Following the decision of the Hon'ble Karnataka High Court, we hold that the orders imposing penalty in all the assessment years have to be held as invalid and consequently penalty imposed is cancelled.

Related Judgements

  1. Tristar Intech (P) Ltd vs. ACIT (ITAT Delhi) 
    There are two different charges i.e. concealment of particulars of income or furnishing of inaccurate particulars of income. The penalty can be imposed only for a specific charge. Furnishing inaccurate particulars of income means, when the assessee has not disclosed the particulars correctly or the particulars disclosed by the…
  2. Global Green Company Limited vs. DCIT (ITAT Delhi) 
    Despite the insertion of sub-section (1B) to s. 271, the necessity for "prima facie satisfaction" for initiation of penalty proceedings continues to be a jurisdictional fact. The AO has to record the finding that there was concealment of income. In the s. 143(3) assessment order, the AO has not…
  3. DCIT vs. Pioneer Marbles & Interiors Pvt Ltd (ITAT Kolkata) 
    S. 271 AAA makes a paradigm shift on the imposition of penalty in respect of unaccounted income unearthed as a result of search operation. Unlike s. 271(1)(c), s. 271 AAA penalty is imposable on undisclosed income without "concealment" or "furnishing inaccurate particulars" having to be shown. S. 271AAA(2)…
  4. Hafeez S. Contractor vs. ACIT (ITAT Mumbai) 
    The notice issued by the AO u/s 274 read with section 271 of the Act at the time of initiation of penalty proceedings states that it is issued for "concealment of particulars of income or furnishing of inaccurate particulars of income". The assessing officer has not specified that as…
  5. DCIT vs. Nepa Limited (ITAT Indore) 
    (i) It is incumbent upon the Assessing Officer to state whether penalty was being levied for concealment of particulars of income by the assessee or whether any inaccurate particulars of income had been furnished by the assessee. There are two…Read more ›


Cancelling Parle's biscuit-packet designs on visual comparison unwarranted, expert-opinions must; Remands matter

SC quashes Calcutta HC order whereby Parle's ('appellant') biscuit packet designs registered under Designs Act ('the Act') by Controller of Patents and Designs were cancelled; Calcutta HC on Britannia Industries' ('respondent') appeal, had observed that Parle's designs lacked novelty & originality; However, SC observes that HC order was "based on a visual comparison of the impugned designs" and no expert opinions were taken; States that Sec 36(3) of the Act enables HC to obtain views/opinion/assistance of an expert, and HC "ought to have obtained the views of the expert(s) before deciding the matter."; Thus, remands matter back to HC for fresh disposal:SC

The ruling was delivered by Justice Rajan Gogoi and Justice N.V. Ramana.
Senior Advocates Shyam Divan, Aniruddha P. Mayee alongwith Advocates A. Selvin Raja, Charudatta Mahindrakar argued on behalf of the appellant. Respondent was represented by Senior Advocate Prathiba Singh and Advocates Nandini Gore, Tahira Karanjawala, Karan Dev Chopra, Aditi Bhatt, Arjun Sharma and Manik Karanjawala.

Pan-masala trademark 'RAJSHREE' phonetically similar to 'RAASHEE'; Rejects 'different meaning' defence

HC grants injunction to registered owner of trademark 'RAJSHREE' ('plaintiff') against use of trade mark/word mark 'RAASHEE' by defendant, both being used for same for same class of products viz., pan masala, supari, betel nuts etc.; Observes that use of trademark RAASHEE by defendant is visually/ phonetically similar plaintiff's trademark RAJSHREE for reason that Hindi alphabets JA and R many a times while speaking word-mark RAJSHREE become silent alphabets, which is not unnatural in class of customers who purchase such goods; Rejects defendant's explanation that meaning of RAASHEE or sun sign/zodiac has a different meaning than RAJSHREE in Hindi; Holds that "mere difference in meanings of two wordmarks will not take away the deceptive similarity especially because products in question will not be purchased by relating purchase to meaning of the word marks/trade marks"; Relies on SC rulings in Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories, Laxmikant vs. Patel Vs. Chetanbhai Shah and Another and Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd :Delhi HC

Restrains Indian co. to trade upon German co.'s 'well-known' trademark 'SIEMENS'

HC grants ex-parte injunction against use of trade mark 'SIEMENS', and domain name www.siemensprojectindiapvtltd.com, as deceptively similar to German co.- Siemens Aktiengesellschaft's ('plaintiff')​ "well known trademark" 'SIEMENS'; Notes that plaintiff has overwhelming 150 years of national/  international reputation, with trademark SIEMENS being registered in several countries; Observes that defendant offered services in relation to chemical plants, pharmaceutical plants, fertilizer, boiler plant etc under trade name SIEMENS, on its website; States that domain name not only serves as an address for internet communication but also identifies it with owner's products and information, thus holds that, "defendant has adopted the trademark SIEMENS in relation to its goods/ services so as to trade upon the reputation and goodwill accruing to the plaintiff in their said trademark SIEMENS and further, to take advantage thereof the goodwill and earn undue profits"; Further holds that defendant's use of website www.siemensprojectindia.pvtltd.com  creates an impression that there is nexus between plaintiff and defendant, thus, it dilutes distinctive quality of plaintiff's famous trademark; Refers to Delhi HC rulings in Time Incorporated Vs. Lokesh Srivastava & Anr and Microsoft Corporation Vs. Rajendra Pawar & Anr., and grants punitive damages of Rs. 3 lakhs to plaintiff:Delhi HC

Restrains Indian software co. from using unlicensed Microsoft software, amounts to copyright-infringement

HC in an ex-parte order grants permanent injunction in favour of Microsoft Corporation ('plaintiff') against Hyderabad-based Indian software services co. ('defendant') restraining defendant's from using pirated/unlicensed software programs of plaintiff; Notes that Software Review Management (SAM) program conducted by plaintiff revealed numerous licence gaps in softwares used by defendant; Observes that despite plaintiff's request, defendant made no effort to close such licence gaps; Thus, holds that defendant has infringed biggest software publisher's copyright in software programs :Delhi HC

Protects housing project trademark 'ASHIANA' from infringement, grants punitive damages

HC grants permanent injunction against defendant (a real eastate developer) from using trademark/logo 'Ashiana', 'Ashiana Anmol' for any of its new construction projects, as deceptively similar to Ashiana Housing Ltd.'s ('plaintiff') tradename 'Ashiana'; Notes that plaintiff was incorporated in the year 1986 and since then have been registered proprietor of trademark 'Ashiana' and has over the years acquired considerable goodwill & reputation; Observes that defendant using plaintiff's trademark has been causing confusion and deception among public and trade; Refers to Delhi HC rulings in Time Incorporated Vs. Lokesh Srivastava & Anr. and Microsoft Corporation Vs. Rajendra Pawar & Anr., and grants plaintiff punitive damages of Rs.3 lakhs:Delhi HC

Saves global e-commerce marketplace's trademark 'Groupon' from infringement by surreptitious Indian registration

HC grants ex-parte injunction against the use of trade mark 'Groupon', as deceptively similar to Groupon Inc.'s ('plaintiff')​ trademark, also entitles plaintiff to apply for cancellation of defendant's domain name 'www.groupon.in'; Notes that plaintiff and its predecessors-in-title have been engaged in business of offering daily deals/ discount on best products/ services to their online subscribers in nearly 40 countries since 2002 under trademark 'Groupon' through their website www.groupon.com; Also observes that plaintiff has registered trade mark 'GROUPON' in countries including USA, European Union, Switzerland, Norway, New Zealand etc; Notes that defendants have registered trade mark 'Groupon' with respect to identical business/ services in India, accepts plaintiff's submission that defendant have surreptitiously registered identical trade mark; Relies on Delhi HC (Division Bench) ruling in N.R. Dongre Vs. Whirlpool Corp. :Delhi HC



__._,_.___
View attachments on the web
Posted by: Dipak Shah <djshah1944@yahoo.com>


receive alert on mobile, subscribe to SMS Channel named "aaykarbhavan"
[COST FREE]
SEND "on aaykarbhavan" TO 9870807070 FROM YOUR MOBILE.

To receive the mails from this group send message to aaykarbhavan-subscribe@yahoogroups.com




__,_._,___
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)