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Showing 1 to 20 of 835 Records
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2020 (7) TMI 836 - ITAT KOLKATA
Bogus purchase - information of Sales Tax Department and consequential disallowance of freight and lorry hire charges - HELD THAT:- No reason to come to a conclusion that the purchases in this case of an intermediary are fake or bogus. We find that all the parties in question are registered with the VAT Authorities and that payments have been made through cheques. Except for the fact that the assessee could not be found by the Inspector of the Income Tax Department for service of notice and the mention by the Sales tax Authorities that there is mis-match in the numbers of trucks and that some are non-transport trucks, the revenue has no evidence whatsoever to support this disallowance. When one to one reconciliation of purchase and sales is made by the assessee, no disallowance can be made. Quantitative reconciliation of stock is not challenged by the Revenue. Hence, in view of the above discussion, we delete the addition made on account of bogus purchases. Consequently, the disallowance made on account of transport payments are also deleted.
Rejection of the books of the accounts by the AO - HELD THAT:- We find that the AO his order rejected the books of accounts for the sole reason that he came to the conclusion that the purchases were bogus. As we have held otherwise, the rejection of books of accounts by the Assessing Officer is bad in law. Even otherwise, we find that though the Assessing Officer rejected the books of accounts, the entire assessment has been based on these very books of accounts only. Thus we allow Ground No. 4 of the assessee.
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2020 (7) TMI 835 - RAJASTHAN HIGH COURT
Validity of reopening proceedings u/s 147/148 - During pendency of the writ petition, it appears that assessment order came to be passed and challenging the order passed by the learned Single Judge, the present appeal has been filed.
HELD THAT:- In the present Special Appeal came to be filed seeking to challenge the subsequent order passed in assessment.
We are afraid, we cannot entertain the appeal since the appellant has alternative efficacious remedy of appeal/challenge before the learned Single Judge, if so advised.
In view of the subsequent development, the present appeal has been rendered infructuous and the same stands dismissed as having become infructuous. The appellant is at liberty to seek remedy against the order of assessment as the assessee may advice. All pending applications also stand dismissed.
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2020 (7) TMI 834 - HIMACHAL PRADESH HIGH COURT
Seeking grant of Regular bail (second bail application) - Smuggling - possessing 3 k.g. & 285 grams of Charas - HELD THAT:- Prior to the present petition, the petitioner has filed a similar bail petition, which was decided on merits, vide a detailed order dated 20.12.2019, passed in Cr.MP(M) No. 2150 of 2019. Since there is no changed circumstances, the present petition is dismissed.
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2020 (7) TMI 833 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Recording of settlement arrived at between the parties - Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 - parties have amicably settled the dispute and the Corporate Debtor has agreed to accept the amount towards full and final settlement of all claims - HELD THAT:- As the parties have reached the settlement and the ‘Committee of Creditors’ was not constituted, in exercise of powers conferred under Rule 11 of the NCLAT Rules, 2016, the impugned order dated 27th May, 2020 is set aside and exit from the ‘corporate insolvency resolution process’ which is permissible in terms of the verdict of the Hon’ble Apex Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] is allowed. The matter is accordingly disposed of in terms of the ‘Settlement Agreement’ between the parties.
In effect, order (s) passed by Ld. Adjudicating Authority appointing ‘Interim Resolution Professional’, declaring moratorium and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Resolution Professional’ are set aside.
Appeal disposed off.
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2020 (7) TMI 832 - BOMBAY HIGH COURT
Seeking grant of default bail - whether the date of remand of the accused be excluded from computation of period of 90 days, as envisaged under Section 167(2) of Cr.P.C.? - HELD THAT:- In the case of SADHWI PRAGYNA SINGH THAKUR VERSUS STATE OF MAHARASHTRA [2011 (9) TMI 1078 - SUPREME COURT], it was observed that the relevant date of counting 90 days for filing the charge-sheet is the date of first order of remand and not the date of arrest.
In SANJAY DUTT VERSUS STATE THRU. C.B.I. BOMBAY [1994 (9) TMI 351 - SUPREME COURT], the Constitution Bench considered the provisions of Section 167 of Cr. PC and Section 20 of TADA Act and it was held that the indefeasibly right accruing to the accused in such situation is enforceable only prior to filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of.
Thus, consistently, it has been held that the detention is authorised from the date of remand and therefore, the period of 60 days or 90 days starts running from the date of the order of the remand. The date of remand has not been excluded in those decisions.
The applicant was arrested and remanded to custody on 26th February 2020. The applicant was in custody from the date of first remand for a period of 4 days in the month of February (since February consisted of 29 days this year), 31 days in March, 30 days in April. 90 days were completed on 25th May, 2020. Application for default bail was preferred on 26th May, 2020 being 91st day, at 10.35 a.m. The Court called for report from the office and IO on the 26th May, 2020. The note put up by Office Superintendent indicate that after filling the application charge-sheet is received and it is under scrutiny and registration. It is not clear from the order as to when the cognizance was taken. Be that as it may application was prior in point of time. Hence the right under Section 167(2) of the Code had accrued in favour of applicant. The applicant is entitled for bail in accordance with aforesaid provision.
The applicant is directed to be released on bail, registered with Navghar Police Station, in accordance with Section 167(2) of Cr.P.C. On executing P.R. Bond in the sum of Rs. 50,000/- with one or more sureties in the like amount - bail application allowed.
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2020 (7) TMI 831 - SECURITIES AND EXCHANGE BOARD OF INDIA
Fraudulent and manipulative trading in the scrips - illegal gains made by the Noticees through the fraudulent and manipulative trades - SEBI was directed by SAT to bring out the date-wise reversal of trades done by the trading Noticees and pass a fresh order within a period of three months after granting an opportunity of hearing - HELD THAT:- In securities market, ‘reversal trades’ are understood to be trades where the parties after executing a trade enter into a ‘reverse trade’ or opposite trade for similar quantities usually within a short time period. However, as held by the Hon’ble Tribunal in the matter of Anita Dalal, in a given case reversal transaction could also happen over multiple days. What is important is the intention of the parties to manipulate the scrip as can be noted from the nature of their trades across multiple days.
The Hon’ble Supreme Court in the matter of SEBI v. Rakhi Trading [2018 (2) TMI 580 - SUPREME COURT] had held that “Once the reversal transactions are shown to be non-genuine or shown to be fictitious creating a false or misleading appearance in the market for ulterior purpose and that the stock market was misused by such manipulative device, this is in clear violation of the provisions of PFUTP Regulations, 2003.”
In the present case, since it is established that all the Noticees were acting as a group and were engaged in manipulative trading in the scrip, have no hesitation in holding that the back and forth transaction in scrip between the Noticees have to be considered as reversal trades even though such trades happened across days.
Computation of the ill-gotten gains - Noticees have submitted that as per the data available from the BSE Price Volume Data in the scrip of Polytex, 75% of total trades had been marked delivery and 25% as intra-day during the investigation period. As can be noted from Table I, the cumulative buy value of the trades by the Noticees which have been taken for the purpose of calculating the ill-gotten gains was Rs. 2,28,90,79,601 and the sell value was Rs. 2,31,96,78,775. The STT and SEBI turnover fee paid at the applicable rates during the investigation period for such trades works out to Rs. 36,06,157.46. The ill-gotten gains made by the Noticees after excluding the eligible expenses would be Rs. 2,69,93,016.79.
Directions - As in exercise of the powers conferred upon me under section 19 of the SEBI Act, 1992 read with sections 11 and 11B of the SEBI Act, and Regulation 11 of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to the Securities Market) Regulations, 2003, confirm the computation of ill gotten gains made in SEBI order dated January 31, 2019 and hereby direct the Noticees to jointly and severally, disgorge an amount of Rs. 2,69,93,016.79, as ascertained along with interest calculated at the rate of 12% per annum from 17 December, 2012 onwards, till the date of payment. The above payments shall be made by the parties in the manner provided in the SEBI order dated January 31, 2019.
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2020 (7) TMI 830 - DELHI HIGH COURT
Maintainability of appeal - Seeking release of amount against an order passed in arbitration proceedings - whether the present appeal, directed against an order passed in arbitration proceedings, is maintainable under Section 13 of the Commercial Courts Act?
HELD THAT:- Section 13 of the Commercial Courts Act provides for an appeal from orders passed by a Commercial Division of a High Court to the Commercial Appellate Division of that High Court, which are enumerated under Order XLIII of the CPC, as amended by the Commercial Courts Act or from orders which are mentioned in Section 37 of the A&C Act.
In KANDLA EXPORT CORPORATION & ANR. VERSUS M/S OCI CORPORATION & ANR. [2018 (2) TMI 412 - SUPREME COURT], while deciding an appeal arising from a decision of the Division Bench of the High Court of Gujarat that had dismissed an enforcement appeal which had arisen from an order passed in an execution proceeding under the Arbitration Act, in respect of a foreign award, the Supreme Court had observed an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.
The present appeal is directed against an interlocutory order passed in proceedings under Section 36 of the A & C Act, whereby a part of the amount which had been deposited by the appellant in this court, has been directed to be released in favour of the respondents. Under Section 37, no appeal is maintainable from any order passed under Section 36 of the A&C Act. Further, Section 36 of the A&C Act does not attract the provisions of the Code of Civil Procedure. Since the statue does not provide for an appeal against and order passed under Section 36, it is axiomatic that the present appeal is also not maintainable.
The impugned order would neither fall under Order XLIII of the CPC, nor under Section 37 of the A&C Act. Therefore, the present appeal filed under Section 13 of the Commercial Courts Act, is not maintainable.
Appeal dismissed being not maintainable.
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2020 (7) TMI 829 - ITAT MUMBAI
Income deemed to accrue or arise in India - addition on account of alleged royalty taxable u/s 9 (l)(vi) of the Income Tax Act, 1961 read with article 12(3) of India Switzerland Double Taxation Avoidance Agreement - HELD THAT:- As decided in assessee's own case 2013-14, [2020 (11) TMI 466 - ITAT MUMBAI] we uphold the plea of the assessee and delete the impugned addition. No other issues were pressed before us. In any event, the other points raised in the appeal were in the nature of consequential levies. Decided in favour of assessee.
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2020 (7) TMI 828 - JHARKHAND HIGH COURT
Removal of defect in bail application - seeking hearing of bail application as it is a regular bail in which petitioners are in custody since 07.03.2020 (after removal of defects by petitioner) - HELD THAT:- It appears that the money transaction of Rs.53,60,000/- between the month of April, 2018 to November, 2019 in the bank account has been admitted by the petitioners. The petitioners are now ready and willing to deposit the said amount before the learned trial court. It appears that the informant has also filed a Civil Suit No.118 of 2019 before the Hon'ble High Court of Himachal Pradesh at Shimla for specific performance of contract but the agreement is not admitted by the petitioners, as such, this Court directs the petitioners named above to be released on provisional bail on furnishing bail bonds of Rs. 50,000/- each with two sureties of the like amount each to the satisfaction of learned S.D.J.M., Bokaro in connection with Balidih P.S. Case No.206 of 2019, corresponding to G.R. Case No.376 of 2020 on the conditions imposed.
Bail application allowed.
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2020 (7) TMI 827 - KARNATAKA HIGH COURT
Permitting the respondent No. 3 to investigate all purported violations of the provisions of the Prevention of Corruption Act, 1988 (PC Act, 1988), by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and to identify and investigate all persons involved in the alleged violation of the provisions of the PC Act, 1988 - impugned order bears reason for granting sanction to prosecute the concerned persons or not - petitioner has locus standi to question the impugned order or not - impugned order is a consent or sanction.
HELD THAT:- A perusal of the impugned Order indicates that the consent was to enable the respondent No. 3 to investigate the violations of the PC Act, 1988 by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and for identification and investigation of person/s involved in connection with the alleged violation of the provisions of the PC Act, 1988. The reference to the petitioner in the impugned Order was only incidental while recording the findings of the Enforcement Directorate and nothing else. The petitioner failed to establish as to how any of his rights were infringed or violated by the consent granted by the respondent No. 1 or as to how he was aggrieved by the consent granted under Section 6 of the DSPE Act, 1946. It is not the case of the petitioner that the respondent No. 1 could not itself investigate the offences committed by Mr. D.K. Shivakumar and other officials of the Government under the PC Act, 1988, based on the documents/information provided by the Enforcement Directorate - The word "sanction" found in the impugned Order is wrongly employed as what is contemplated under Section 6 of the DSPE Act, 1946 is only a "consent" to enable the respondent No. 3 to investigate the offences.
The word "consent" is phonetically, etymologically and textually different from the word "sanction" and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No. 1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word "consent" admits of myriad definitions as per its use in various legislations such as consent in contractual matters, consent in offences relating to human body, consent for establishment under the Environmental laws. In so far as the word "consent" found in Section 6 of the DSPE Act, 1946, it only means a "permission" of the concerned State in the Constitutional scheme of things.
Whether grant of consent under Section 6 of the DSPE Act, 1946 is more in the nature of an administrative Order and does not require enormous rejigging as the issue is whether to allow the investigation to be done by the CBI or not? - HELD THAT:- In so far as the present case is concerned, the raid was allegedly conducted by the Department of Income Tax followed by investigation by the Enforcement Directorate into the alleged acts of money laundering, which found violations of the PC Act, 1988. Thus, in the fitness of things, the respondent No. 1 has felt it appropriate that the violations of the PC Act, 1988 be investigated by the respondent No. 3. Even if it is assumed that the respondent No. 1 was required to apply its mind before granting the consent, the opinion of the Advocate General would indicate that the Enforcement Directorate had shared documents pertaining to the said investigation in the form of a complaint filed before the Special Court for Economic Offences, the communication made by the Enforcement Directorate to the Central Bureau of Investigation etc., and the impugned Order itself would indicate the circumstances that compelled it to grant consent. It is thus the subjective satisfaction of the respondent No. 1 which has resulted in a consent under Section 6 of the DSPE Act.
The writ petition is dismissed.
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2020 (7) TMI 826 - KERALA HIGH COURT
Making additional entry in the Basic Tax Register on the basis of enabling orders passed under the Kerala Land Utilisation Order 1967 - Direction to applicants to pay 25% of the scheduled fee as enjoined in Sub Rule 17 of Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Rules 2008 as amended in 2018 consequent to the Amendment of Act, 2018 - HELD THAT:- Section 27A was brought into force on and with effect from 30.12.2017, to deal with change of nature of unnotified land, thus requiring any owner of an unnotified land desiring to utilise any Paddy land for residential or commercial purpose or for other purpose, to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application. Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation order 1967 - none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive.
Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar - it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application.
The appellants have not made out any case for interference with the judgment of the learned Single Judge - appeal dismissed.
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2020 (7) TMI 825 - ITAT KOLKATA
Addition u/s 56(2)(vii) v/s 69 unexplained investment - HELD THAT:- DR fails to dispute the clinching fact that the impugned addition u/s 56(2)(vii) never formed subject matter of assessee’s grounds in the lower appellate proceedings nor any such issue had arisen in the assessment order. This tribunal’s co-ordinate bench’s decision in Bikram Singh [2016 (4) TMI 822 - ITAT DELHI] CIT(A) was not empower to enhance an income on an issue which was not the subject matter of the assessment. CIT(A) cannot touch upon an issue which does not arise from the order of the assessment and was outside the scope of the order of the assessment.
Thus direct the Assessing Officer to delete the impugned addition. Assessee’s appeal is allowed.
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2020 (7) TMI 824 - ITAT DELHI
Income deemed to accrue or arise in India - royalty receipt - consideration received by the Appellant from supply/distribution of its copyrighted software products - DTAA between India and Ireland ('AADT) - Whether right to use' the copyright in the software? - HELD THAT:- The issue arising in the present appeal is identical to the issue raised in assessee’s own case in Assessment Year 2013-14 [2018 (12) TMI 112 - ITAT DELHI] and applying the ratio laid down by the Jurisdictional High Court in Infrasoft Ltd. [2013 (11) TMI 1382 - DELHI HIGH COURT], we hold that the receipt from sale of software by the assessee was not in the nature of ‘Royalty’ under Article 12 of DTAA between India and Ireland. Since the treaty provisions are more beneficial, there is no merit in adjudicating the issue vis-àvis amended provisions of section 9(1)(vi) - Ground of appeal raised by the assessee are thus allowed.
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2020 (7) TMI 823 - ITAT KOLKATA
Revision u/s 263 - effect of omission of clause (i) of section 92BA w.e.f 01.04.2017 - meaning of “omission” - Specified domestic transactions referred to in clause (i) of section 92BA - reference to Transfer Pricing Officer (TPO) - HELD THAT:- As in respect of specified domestic transactions which is referred to clause (i) of section 92BA of the Act, which was omitted with effect from 01.04.2017 and the effect of such “omission” of clause (i) of section 92BA means that this provision never existed in the statute book, hence reference to TPO was bad in law.
As the issue is squarely covered in favour of the assessee by the decision of Coordinate Bench in the case of M/s Raipur Steel Casting India (P) Ltd. [2020 (6) TMI 629 - ITAT KOLKATA] and there is no change in facts and law and the Revenue is unable to produce any material to controvert the above said findings of the Co-ordinate Bench. Therefore, respectfully following the decision of Co-ordinate Bench on the technical issue narrated above we allow appeal of the assessee.
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2020 (7) TMI 822 - ITAT MUMBAI
TP adjustment made on account of intra-group services - assessee has purportedly received support services from its regional headquarter primarily in the areas of management of human resources, sale, debt management and collection, advertisement and marketing, legal services, etc. - TPO applied ‘benefit test’ on the intra-group services received by the assessee and determined the ALP of such services at ‘Nil’ - HELD THAT:- We find that the TPO has failed to properly analyse the support services received by the assessee from its regional headquarter - The settled legal position now is that the ALP of intra group services cannot be determined at ‘Nil’. The ‘benefit test’ analysis which was earlier accepted has now been held to be redundant. The Tribunal in the case of Merck Ltd. [2016 (3) TMI 1105 - ITAT MUMBAI] has held the concept of ‘benefit test’ as irrelevant. The Tribunal held that by applying befit test ALP of intra-group services cannot be determined at ‘Nil’. Thereafter, in various decisions by the Tribunal the application of benefit test analysis has been rejected. Thus, we deem it appropriate to restore the issue back to the file of TPO for fresh adjudication and for determination of ALP of intra-group services by applying most appropriate method specified in section 92C of the Act. Ground No.1 of the appeal is thus, allowed for statistical purposes.
Adjustment in respect of reimbursement of expenses - Since we have restored ground No.1 to the TPO, we deem it appropriate to restore ground No.2 of the appeal as well, to the TPO for de-novo adjudication after affording reasonable opportunity of hearing to the assessee.
Adjustment made in respect of loans extended by the assessee to domestic group companies, held as ‘deemed International Transaction’ - HELD THAT:- A bare perusal of the meaning of “international transaction” defined in section 92B (1) would show that a transaction would fall within the ambit of international transaction if, either or both the associated enterprises are nonresident. In the present case none of the AEs i.e. neither the assessee nor the domestic group companies with which the assessee had entered into transaction are non-residents. All the companies are domestic entities and are subject to tax under the provisions of the Act.
In the present case, the authorities below have failed to take note of the fact that the transactions in question are within domestic entities only. No overseas entity is involved in the transaction. Unless the conditions set out in subsection (1) are satisfied, the provisions of subsection (2) cannot be invoked. The authorities below in the present case have erred in invoking deeming fiction solely on the premise that since shareholders of overseas holding company are holding shares of the assessee and AEs, ‘in substance’ the transaction between the assesse and the domestic group entities would fall within the ambit of “deemed international transaction”. Deeming provisions cannot be invoked by expanding the latitude of expressions used in the section. The authorities below have failed to take into consideration the fact that all group entities are companies incorporated in India having separate legal existence. Except for common shareholding, no material has been relied on by the TPO/DRP to substantiate that the transaction between the entities was influenced by the overseas holding company.
The findings of the lower authorities are based on conjectures and surmises. The authorities below have travelled too far to bring the transactions between the assessee and domestic entities within the domain of ‘deemed international transaction’ under section 92B (2) of the Act (prior to amendment). We find merit in ground no.3 of the appeal, according the same is allowed.
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2020 (7) TMI 821 - ITAT DELHI
TP Adjustment - working capital adjusted PLI of the comparables not considered - As per assessee PLI of the comparables after carrying out working capital adjustment, which is much less than the PLI the assessee - HELD THAT:- Though the assessee submitted working capital adjusted PLI of the comparables before Transfer Pricing Officer but same was not considered because unadjusted PLI of the assessee was higher than the average marginal comparables and resultantly, no adjustment was proposed to the international transaction of provision of information technology enabled services reported by the assessee
As the effect of the working capital adjustment has not been considered or examined by the lower authorities, we feel it appropriate to restore this limited issue whether the adjustment for delayed receivables from associated enterprises get subsumed in working capital adjustment, to the file of the learned Assessing Officer/Transfer Pricing Officer for adjudicating in accordance with law. It is needless to mention that assessee shall be afforded adequate opportunity of being heard. Appeal of the assessee is allowed partly for statistical purposes.
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2020 (7) TMI 820 - KERALA HIGH COURT
Compassionate appointment or not - claim of the writ petitioner was rejected on the ground that only the dependants of the Part-Time Contingent Employees, who die before attaining the age of 60 years are eligible to be considered for compassionate appointment in terms of the industrial settlement entered into between the Kerala State Electricity Board and its employees, in 2007 - HELD THAT:- It is settled law that repeal of the Principal Act will result in the repeal of subordinate legislation framed under the provisions of the repealed enactment unless the same was specifically saved by the repeal and saving clause. We cannot, in S. 185, see any saving clause which protects Ext. P2 Regulation or gives life to Ext. P2 regulation de hors the repeal of Electricity (Supply) Act, 1948 - The provisions of sub-section (2), obviously cannot apply to save Ext. P.2 Regulations, in the manner suggested by the learned counsel for the Writ Petitioner as, obviously, the said provision can apply only to past actions under any of the repealed enactments. A reading of S. 185(2)(a), suggests that things, which have already been done will be saved insofar as it is not inconsistent with the provisions of the Electricity Act, 2003.
We accept the contention of the learned counsel for the writ petitioner that there is nothing contrary to the provisions contained in Ext. P2 in the Electricity Act, 2003. However, the lack of any inconsistency with the provisions of the 2003 Act cannot offer any protection, insofar as the writ petitioner is concerned, on account of the fact that it is not his case that any action had been taken in terms of Ext. P2 Regulation prior to the repeal of the Electricity (Supply) Act, 1948. In fact, as already noticed, the mother of the writ petitioner under whom he claims appointment under the dying-in-harness Scheme passed away only on 21.3.2011 on which date Ext. P2 Regulation was clearly not in force on account of the repeal provision in S. 185(1) - In the absence of any statutory regulation, the provisions of the long term settlement will apply.
Sub-section (5) of S. 185, only makes it clear that the specific mention and saving of certain enumerated provisions/rules in sub-section (2) does did not mean that the effect of Section 6 of the General Clauses Act, 1897 was inapplicable in respect of provisions not so enumerated.
The right of the 1st respondent (if any) can be considered only in terms of the relevant provisions of the industrial settlement in force and not in accordance with the provisions - Appeal allowed.
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2020 (7) TMI 819 - ALLAHABAD HIGH COURT
Invocation of extraordinary jurisdiction of this Court under section 482 Cr.P.C. - locus of opposite party no. 2- Kaptan Singh to ignite the instant criminal prosecution - HELD THAT:- It is undisputed that the contesting parties have entered into an agreement to sell on 27.10.2010 and from the FIR, it has been borne out that on 05.08.2015, the alleged Power of Attorney was executed by Mrs. Munni Devi in favour of Kaptan Singh but astoundingly no power of attorney in this regard has been annexed with the record. There are balled averments, conferring this stature of Kaptan Singh (opposite party no. 2), which cannot be accepted on its face value. For all the practical purposes, he is rank outsider and stranger to the ‘surreptitious’ deal, therefore, the criminal prosecution initiated at his behest would lead into nullity. In all fairness, he ought to have annexed the Power of Attorney allegedly executed by Ms. Mamta Devi in his favour with the counter affidavit. On the strength of bald Power of Attorney the opposite party no.2 Kaptan Singh has initiated the criminal case.
Section 482 envisages inherent power to the High Courts to pass necessary orders for securing the ends of justice. In the case of Indian Oil Corporation v. NEPC India Ltd [2006 (7) TMI 575 - SUPREME COURT], the Division Bench of Hon'ble Apex Court reviewed the precedents on the exercise of jurisdiction under section 482 Cr.P.C., and formulated the guiding principles holding that
In the instant case, there are two documents, annexed by the applicants. Though both the documents were executed on 27.10.2010 and signed by the contesting parties, this Court is at serious loss to spell out the genuineness of the aforesaid documents either way. Moreover, the civil courts are seized with the mater and they are required to adjudicate the pivotal question by taking evidence at their discussion on the point.
The present application filed under Section 482 Cr.P.C., is allowed.
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2020 (7) TMI 818 - MADRAS HIGH COURT
Revision u/s 263 by CIT - whether the assessee was eligible for the claim u/s 54F? - HELD THAT:- AO records that after a thorough verification of all records, the same has been found to be correct and the assessment completed by accepting the return filed by the assessee. We find that nothing more is required to be recorded by the assessing officer, especially when the assessment file would contain all the material which has been produced by the assessee. In fact the bank details have been produced to show that the amount has been invested in Capital Gain Scheme Account in two banks viz., Bank of Maharashtra and UCO Bank and the banks have given letters dated 31.12.2015 to the said effect. Thus, we are of the view that there was no material to indicate that the assessment was an erroneous assessment in so far as it is prejudicial to the interest of the revenue.
The tribunal fell in error in not testing at the very first instance, as to whether the show cause notice issued by PICT was justifiable for assumption of jurisdiction under Section 263 of the Act. Thus, without addressing the moot point, the tribunal proceeded on a different footing. In fact, before the tribunal, the assessee raised a point about non applicability of SEBI guidelines, because the transaction was between an individual and the company. We find that there has been no adjudication on the said issue.
Assessee had also specifically contended that it was necessary to comply with Section 54F (iv) and if the assessee invests the entire consideration in capital gains scheme account as contemplated within the period, then, such investment shall be deemed to be only cost of new asset and exemption under Section 54F is automatic.
The assessee further contended that shares were sold for Rs.15 Crores on 18.01.2011 and before the due date for filing the return, the assessee had deposited into Capital Gains Scheme Account, LTCG and therefore, contended that as per Section 54F(iv), the assessee had duly complied with the condition for availing exemption. These issues were not adjudicated by the tribunal. Thus, we hold that the assumption of jurisdiction by the PCIT is erroneous and the order passed by the tribunal confirming such an order, calls for interference. Decided in favour of the Assessee.
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2020 (7) TMI 817 - ITAT MUMBAI
TP Adjustment - adjustment to the Arm’s Length Price of the assessee’s international transaction - Comparable selection - ‘Persistent loss’ making companies - HELD THAT:- A company can be accepted as comparable if it has not suffered persistent losses. The expression ‘persistent loss’ is not defined under the Act or the Rules framed thereunder. The expression has evolved in judicial rulings. One of the initial decisions of Tribunal supporting this principle is Bobst India (P.) Ltd. vs. Dy. CIT [2015 (12) TMI 684 - ITAT PUNE] ‘Persistent loss’ means losses in three consecutive financial years including the Financial Year corresponding to the Assessment Year under dispute and immediately two preceding Financial Years. The thumb rule of excluding persistent loss making company has been accepted in various judicial precedents over the period of time.
The company at Sr.No.1 has suffered losses in only one year and the companies at Sr. No.2 & 3 have incurred losses in two financial years. Thus, none of the above said three companies fall within the ambit of persistent loss making companies. The CIT (A) has directed the TPO to include AMI Computer (I) Ltd., Mercury Travels Ltd. and Nucleus Netsoft & GIS India Ltd. as these are not continuous loss making companies. We concur with the findings of CIT (A). The impugned order is upheld, ergo, the appeal of revenue is dismissed sans merit.
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