On a plain reading of Clause (33) of Section 65 of the Act, it is apparent that the same envisages actual transportation of time-sensitive documents, goods or articles by a person, who utilises the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles. In the facts of the present case, the assessees are handed over cash in the form of Indian currency at the recipient branch, which issues instructions to the delivery branch, which, in turn, makes payment from the corpus available with it.
The garden expenditure was for the purpose of maintaining garden to control the pollution. The company had put up an affluent treatment plant and pollution used to generate because of release of pollutants. The maintaining a garden helped in controlling pollution arising from the pollutants. It cannot be gainsaid that the expenses for garden had nexus with business activity.
In the present case, therefore, the assessee failed to offer any explanation in not offering a particular amount to tax. This was finding of the Assessing Officer as confirmed by the Commissioner (Appeals) and the Tribunal. Even if the speculation profit was eligible for set off against carry forward speculation loss, the same would have effect of diminishing such speculation loss which would be carry forwarded for future years. It is by now well settled through statutory provisions as well as decisions of the Apex Court in case of loss return also, the penalty could be imposed if by virtue of wrong claim not made bona fide, computation of loss is likely to reduce.
We find from the order of Ld. Commissioner of Income Tax (Appeals) and the argument of the assessee that if the addition is confirmed, if any trading result should be allowed to be set off against unaccounted income of Rs. 1,90,000/- introduced in garb of guess deposits. The Ld. Commissioner of Income Tax (Appeals) has upheld the addition of Rs. 75,916/-. Therefore, telescoping effect of this addition was allowed.
In case of transfer of capital asset forming part of block of assets in respect of which depreciation has been allowed, mode of computation and cost of acquisition shall be as per modifications provided in section 50. Thus, special provision made for computation of capital assets in respect of which depreciation has been allowed, is confined for the purpose of section 50 in relation to sections 48 and 49 only.
Learned counsel for the Revenue however, vehemently contended that the assessee and M/s. K.M. Patel & Co. had agreed to share the receipts in ratio of 60:40. They could not have thereafter, modified such arrangement without any written contract. From the record it however, emerges that assessee and M/s. K.M. Patel & Co. agreed to make investment in such proportion for carrying out construction work jointly undertaken by them.
It is well settled that the proceedings of winding up is not a recovery proceeding. Once it is demonstrated that the debt is subject to a bonafide dispute, the court will not order for winding up. The principles in this regard are elucidated in Madhusudan Gordhandas (supra).
The Tribunal, upon detailed examination of the nature of relationship between the assessee and the transporter, came to the conclusion that this is not a case of sub-contract. The Tribunal noted that none of the responsibilities of the contractor vis-a-vis the execution of the work were fastened on the transporters.
In the present case, as stated hereinabove, admittedly original accused No. 2 was appointed as managing director of original accused No. 1-company and original accused No. 1-company had also the whole-time directors and the manager. The petitioner was arraigned as an accused only as a ordinary director.
In Perumon Bhagvathy Devaswom v. Bhargavi Amma [2008] 8 SCC 321 it was reiterated that sufficient cause should be understood in pragmatic and practical manner. The test is that the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on part of the appellant.
