Legal Reference Library

The third schedule of ID Act provides for which type of matters fall within the jurisdiction of Industrial Tribunals. It provides as under: MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL TRIBUNALS 1. Wages, including the period and mode of payment; 2. Compensatory and other allowances; 3. Hours of work and rest intervals; 4. Leave with wages and holidays; 5. Bonus, profit sharing, provident fund and gratuity; 6. Shift working otherwise than in accordance with standing orders; 7. Classification by grades; 8. Rules of discipline; 9. Rationalisation; 10. Retrenchment of workmen and closure of establishment; and 11. Any other matter that may be prescribed. See Also :  Tata Chemicals Limited Vs. Okha Mandal Majoor Sangh  [Gujarat High Court, 25-04-2017]

In Amritlal T. Shah vs. ITO, the ITAT Mumbai held that In valuing the shares of a privately held co, the “enterprise valuation” has to be taken by valuing even the assets held by subsidiaries of the Company. It is common for the sellers to charge a “controlling premium” for the sale of the shares. Such transfers to enable restructuring and re-aligning the shareholding pattern are genuine and bona fide. The alleged excess consideration for the sale of the shares cannot be treated as “unexplained income”

Smt. Ujjawala Sitaram Baheti Versus Asstt. Commissioner of Income Tax, Circle – 1, Jalgaon and Vica-Versa Computation of Long term capital gains (LTCG) - Disallowance of payment made to hutment dwellers for vacating the land - Held that:- These unauthorized occupants do not have permanent place of stay and they move from one place to another till the time they get place to settle down. Moreover, the dwellers were not personally known to the assessee. In such circumstances it is not prudent to expect from the assessee to produce the illegal occupants of land to whom payments were made. In so far as second objection is concerned the assessee has furnished a copy of title of civil suit filed in the Civil Court, Jalgaon. A perusal of same shows that the suit was filed against 19 defendants, if the assessee has included the name of some more persons in the list of unauthorized occupants to whom the payments have allegedly been made and the same are not verifiable, the Assessing Officer co...

Mr. Zameer Moon Versus The DCIT 12 (2) , Mumbai Disallowance of Club Membership Fees - Held that:- . On going through the order of the Ld. CIT(A), it is very clear that the expenses/club membership fee paid by the assessee cannot be allowed as business expenditure as it was not incurred wholly and exclusively for the purpose of business. The assessee could not prove with evidences that the amounts paid for club membership fee was incurred for the purpose of the business. None of the findings of the Ld. CIT(A) have been rebutted with evidences and therefore there is no valid reason to interfere with the findings/decision of the Ld. CIT(A) in upholding the disallowance made by the Assessing Officer. - Decided against assessee Article referred: Tax Management India.com

Appellate Tribunal for Electricity Kochi Salem Pipeline Pvt. Ltd. and Ors. v. Petroleum & Natural Gas Regulatory Board MANU/ET/0097/2016 02.09.2016 Commercial  Unless there is fraud of beneficiary or irretrievable harm or injury, Courts are not to interfere with encashment of Bank Guarantees Appellant No. 1 a Joint Venture Company formed for specific purpose of constituting, commissioning and operating Kochi-Coimbatore-Erode-Salem LPG Pipeline. A consortium of Appellant No. 2 ("Bharat Petroleum Corporation Ltd. - BPCL") and Appellant No. 3 ("Indian Oil Corporation Ltd.-IOCL") with Appellant No. 2 as lead partner has been selected by Respondent Board for grant of authorization for said Pipeline. Letter of Intent issued by Respondent-Board in term of which Appellant No. 2 was directed to submit Performance Bond/Bank. Pursuant thereto Respondent Board issued a Letter of Authorisation ("LOA"). One of conditions in said LOA was that, entity was...

In a 498 page judgment on appeals filed by the Adani, Tata, GMR and other groups, the Hon'ble Appellate Tribunal For Electricity clarified various issues including :- a) Definition of "Composite Scheme" b) Jurisdiction of CERC in "Composite Schemes" c) Alteration of tariff by the CERC The Hon'ble Tribunal decided that the supply of power to more than one State from the same generating station of a generating company, ipso facto, qualifies as ‘Composite Scheme’ to attract the jurisdiction of the Central Commission under Section 79 of the said Act. Further the Hon'ble Tribunal quashed the regulatory powers of CERC under Section 79(1)(b) of Act, to alter or modify the tariff which has been determined by way of a competitive bidding process, holding that the CERC may by way of its adjudicatory powers under section 79(1)(f) of the Act, award relief to the power generating companies as per the provisions of the PPA if a case of force majeure is made out.

The Supreme Court in M. S. KAZI VS. MUSLIM EDUCATION SOCIETY has held that all Tribunals are not necessary parties in a Special Civil Applications under Articles 226 and 227 of the Constitution, when they are not required to defend its orders when they are challenged before the High Court. Three Judge Bench comprising of Chief Justice of India T S Thakur, Justices A M Khanwilkar and Dr D Y Chandrachud made this observation while setting aside Gujarat High Court judgment which had dismissed Letters Patent Appeal against a Single Bench order for the reason that the Gujarat Higher Secondary Education Tribunal was not impleaded in the Special Civil Application. The Court observed: “The lis is between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. W...

If the spouse has not invested in a property and is merely a co-holder, then on sale of such property, she cannot be liable for tax on capital gains, the Mumbai Income-Tax Appellate Tribunal (ITAT) has recently ruled. The ITAT order will help many taxpayers as married couples are increasingly opting for property registration in joint names, even if only one of them is the investor. Anil Harish, an advocate specializing in real estate, said: "Co-holding of property is popular. Often the name of a spouse (say wife) is added to provide a sense of comfort, to ensure ease of succession on death of the partner or other reasons such as facilitating voting in a general body meeting of the housing society." The ITAT gave the order on Wednesday while hearing a case of a medical professional, Vandana Bhulchandani. An income-tax (I-T) officer, based on information in his possession, noted that Bhulchandani had not disclosed the capital gains arising from the Rs 2.12-crore sale of a...

“Reasonable cause” for the purpose of application of Section 271C in the backdrop of Section 273B has been explained by the Hon’ble Delhi High Court in the case of Woodward Governors India (P) Ltd. Vs. CIT (2002) 253 ITR 0745 to mean a probable cause, an honest belief founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the person concerned to come to the conclusion that same was the right thing to do. The cause should not be found to be frivolous, without substance or foundation.

Lahoti Overseas Ltd vs. DCIT In every case of delay, there can be some lapses on the part of the litigant concern. That alone is not enough to turn down the plea and to shut the doors against him, unless and until, it makes a mala-fide or a dilatory statutory, the court must show utmost consideration to such litigant. In matters concerning the filing of appeals, in exercise of the statutory right, a refusal to condone the delay can result in a meritorious matter being thrown out at the threshold, which may lead to miscarriage of justice. Since the employee who was earlier handling the tax matters of the assessee company, while leaving the job of the assessee company, did not handover the relevant papers either to the assessee or to the next person, a fact which caused the delay, the delay was liable to be condoned by taking a lenient view. Article referred: http://itatonline.org/archives/2016/05/page/2/

Arvind Asmal Mehta vs. ITO The purchase of shares in the immediately preceding year was accepted by the Department in an order u/s 147 r.w.s 143(3) of the Act. The shares were evidenced by entries in the demat statement and consideration was received through banking channel. There was no clinching material to say that the impugned transaction was bogus. Also, the statement recorded during the search on M/s Alliance Intermediaries & Network Pvt. Ltd. does not contain any infirmity qua the impugned transaction. Therefore, the addition as income from undisclosed income was liable to be deleted. Article referred: http://itatonline.org/archives/2016/05/page/2/

For allowing / disallowing any expenditure under Section 37 of the Act, the basic thing to be seen as to whether the expenditure was incurred for furtherance of business interest of the Assessee or not. It is a fact that in this case because of the expenditure incurred no new assets came into existence. The expenditure was incurred considering the old relation with the supplier and to avoid future business complications. If an assessee makes payment which is compensatory nature, it has to be allowed. In this case, the payment was made in pursuance of an agreement and that was of compensatory nature i.e.it was not penal, hence it was to be allowed Article referred: http://itatonline.org/archives/2016/05/

Award passed by Labour Court or Industrial Tribunal: Award passed by Labour Court/Industrial Tribunal is binding till it is substituted by another award/court order/court compromise indicating such substitution, or is replaced by another settlement, or terminated by either party under S. 19(6). Settlement/compromise/scheme in question arrived at before court after passing of awards concerned, did not amount to substitution of the awards in absence of any specific indication as to such substitution given in order passed by court pursuant to compromise. [T.N. Terminated Full Time Temporary LIC Employees Assn. v. LIC, (2015) 9 SCC 62]

M/s Ganapathy & Co vs. CIT (i) It is well settled that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and reappraisal of the evidence on record. The aforesaid position in law has been consistently laid down by this Court in several of its pronouncements out of which, illustratively, reference may be made to Karnani Properties Ltd. Vs. Commissioner of Income-Tax, West Bengal [82 ITR 547], Rameshwar Prasad Bagla vs. Commissioner of Income-Tax, U.P. [87 ITR 421], Commissioner of Income-Tax, Bombay City vs. Greaves Cotton and Co. Ltd. [68 ITR 200] and K. Ravindranathan Nair vs. Commissioner of Income-Tax [247 ITR 178]. (ii) The legal position in this regard may be summed up by reiterating that it is the Tribunal which is the final fact finding authority and it is beyond the power of the High ...

DCIT vs. Fritz D. Silva (ITAT Mumbai) The controversy before us is as to whether the interest paid by the assessee on loans taken for acquiring the shares in the past can be allowed as a deduction u/s 48 as cost of acquisition while computing capital gain on sale of such shares. On this aspect, the Ld. Representative for the respondent assessee relied upon the Judgment of Hon’ble Madras High Court in the case of Trishul Investments Ltd. 305 ITR 434 (Madras) which is directly on the point. In the case before the Hon’ble Madras High Court, the assessee was carrying on the business of investment in shares/securities and the profit derived from sale of shares was held subject to capital gains. Apart from other issues, the Revenue had contested the order of the Tribunal wherein the assessee was allowed the interest liability incurred on borrowings utilized to acquire the shares, while determining the cost of acquisition of shares for the purpose of computing capital gain. As per the Hon’...

Kerala High Court has declared that an Arbitral Tribunal cannot pass an order to enforce its order by directing the Advocate Commissioner/Receiver to repossess the vehicle from the opposite party. Justice A. Muhamed Mustaque observed that enforcement can be only through a civil court. Some vehicle owners who had availed loan from financiers had approached the High Court complaining that the interim order of repossession passed by the Arbitral Tribunal is enforced/being attempted to be enforced without putting the orders for enforcement, following the procedures under the Code of Civil Procedure. The Tribunal had ordered appointment of an Advocate Commissioner/Receiver to repossess the vehicle either directly or with the assistance of police. Power of High Court to directly interfere with Arbitral Award/Interim Orders of Tribunal Justice Musaque has first considered the question whether High Court can interfere with Arbitral Award/Interim Orders of Tribunal and answered it as follows; T...

M/s Ganapathy & Co vs. CIT (Supreme Court) dated 18/1/16 S. 256: While findings of fact found by the Tribunal are final and the High Court cannot reappraise the same, the High Court can take note of facts on record which are lost sight of by the Tribunal and also construe certain facts to be of significance as against the different view of the Tribunal (i) It is well settled that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and reappraisal of the evidence on record. The aforesaid position in law has been consistently laid down by this Court in several of its pronouncements out of which, illustratively, reference may be made to Karnani Properties Ltd. Vs. Commissioner of Income-Tax, West Bengal [82 ITR 547], Rameshwar Prasad Bagla vs. Commissioner of Income-Tax, U.P. [87 ITR 421], Commis...

Baleshwar Dayal Jaiswal Vs. Bank of India & Ors, Dated on AUGUST 05, 2015. [Civil Appeal No.5924 of 2015 arising out of SLP (C) No.27674 of 2011] [Civil Appeal No.5925 of 2015 arising out of SLP (C) No.36316 of 2011] [Civil Appeal No.5926 of 2015 arising out of SLP (C) No.38436 of 2012] [Civil Appeal No.5927 of 2015 arising out of SLP (C) No.5789 of 2013] Judgment Details Baleshwar Dayal Jaiswal Vs. Bank of India & Ors. [Civil Appeal No.5924 of 2015 arising out of SLP (C) No.27674 of 2011] [Civil Appeal No.5925 of 2015 arising out of SLP (C) No.36316 of 2011] [Civil Appeal No.5926 of 2015 arising out of SLP (C) No.38436 of 2012] [Civil Appeal No.5927 of 2015 arising out of SLP (C) No.5789 of 2013] ADARSH KUMAR GOEL, J. 1. Leave granted. 2. The question in this batch of appeals is whether the Appellate Tribunal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the SARFAESI Act") has...

The common practice of keeping vacancies of chairpersons in tribunals pending for long periods and allowing bureaucrats to act as their heads received another blow, this time from the Gujarat High Court. The State Electricity Regulatory Commission was topless for a long time and one technical member was presiding over it along with a former employee of the electricity board. This was challenged by Utility Users' Welfare Association. Allowing most of its prayers, the high court stated that since "the vacancy of chairperson was not filled up for a long time and a large number of litigants are waiting for adjudication, the state government is directed to undertake the process for making the appointment of chairperson at the earliest, but not later than three months." The court ruled that the powers exercised by the commission are equal to that of a civil court and so a person with judicial background must preside over it as far as possible. Otherwise, it may result in the ex...