|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1484 Records
-
2023 (3) TMI 1484 - ITAT CUTTACK
Estimation of income - Unapproved purchases and sales - determining the profit on the alleged unproved purchases at 10% and the unproved sales at 5% - reliance on incriminating materials found in the course of search - HELD THAT:- In the present case, as it is noticed that there is no evidence to prove the alleged unproved purchases or unproved sales and as there is no evidence in any manner found in the course of search or post search enquiry or in the course of assessment proceedings to show that the sellers and buyers were bogus, no addition on account of said unproved purchases or unproved sales can be made in the hands of the assessee. This view also supports from the fact that in the statement recorded, which has been extracted above, various registers and facts have been brought to question such entries in the registers and such invoices have not been shown to be not recorded in the regular books of account of the assessee and there is neither any allegation that the books of account were produced subsequent to search whereas it is an admitted fact that the regular books of account were found on tally in the course of search.
Estimating 10% of the alleged unproved purchase and 5% of the alleged unproved sales - As we have categorically held that the addition per se of alleged unproved purchases and unproved sales cannot be made in the hands of the assessee, the question of estimation of the profit on the same no more survive. Even otherwise, the ld CIT(A) in his wisdom having rejected the books of account, could have at best estimated the income of the assessee for the whole year, he could not estimate the profit merely on the alleged undisclosed sales or unproved purchases. In these circumstances, this issue is decided in favour of the assessee and the addition as confirmed by the CIT(A) in respect of 10% profit estimated on the "unproved purchases" and 5% profit on the "unproved sales" stands deleted.
Cash creditors - As in respect of appeal in the case of Bajarangbali Steel Industries Ltd. as it is noticed that the AO has not given the assessee the copy of the statement recorded in the course of survey action u/s. 133A of Avighna Vyappar Pvt Ltd. the issue in that appeal is restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to cross examine the said Shri Dilip Das.
Coming to the arguments of CIT (OSD) in respect of Bajarangabali Steel Industries Ltd.,, wherein, the statement of Satyendra Kumar Thakur has been recorded - Admittedly, Shri Satyendra Kumar Thakur has categorically admitted to the transaction. AO has stated that on the basis of field enquiry, he has treated the transaction as bogus. However, on perusal of paper book shows the statement of profit and loss account of M/s. Arnav Financial Services Private Limited for the year ended 31.3.2020, wherein, the interest income itself has been shown at Rs. 1,10,47,708. The TDS itself is of Rs. 10,97,278 and refund is Rs. 9,40,330/-. In respect of Vaikunth Motor Finance Ltd., Pvt Ltd., for the year ended on 31.3.2020, the interest income has been shown at Rs. 1,39,15,130/-, refund has been claimed, wherein, TDS is nearly Rs. 13,51,487/-. Thus, clearly, in respect of loan creditors of Arnav Financial Services Private Limited and Vaikunth Motor Finance Ltd., Pvt Ltd.,, evidences substantially proves in favour of the assessee that these are companies with substantial holdings, financial capabilities and consequently, creditworthiness, genuineness and identity stands proves and consequently, addition is not called for.
Loan creditors - Admittedly, there is no evidence available with the Revenue in the form of any statement recorded from any of the Directors to controvert the evidence in the form of income tax returns filed, confirmation letters filed, deduction of TDS on the interest paid and the interest income offered by such loan creditors for the relevant assessment years, consequently the additions are unsustainable and the same stand deleted.
-
2023 (3) TMI 1483 - BOMBAY HIGH COURT
Validity of reassessment proceedings in name of a non-existing company - notice issued after scheme of amalgamation as approved by the High Court - HELD THAT:- In the case of Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] a Division Bench of the Delhi High Court held that once the factum of amalgamation of a company had been brought to the notice of the AO, despite which the proceedings are continued and an order of assessment passed in the name of non-existent company, the order of assessment would not merely be a procedural defect but would render it void.
Recently, the apex court in the case of Pr. CIT v. Maruti Suzuki India Ltd.[2019 (7) TMI 1449 - SUPREME COURT] despite the fact that the AO was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law.
The stand of the Revenue that the reassessment proceedings could be initiated for a period prior to the specified date as per the scheme of amalgamation even against a non-existent entity, is an argument which is clearly untenable in view of the ratio of the aforementioned judgments. WP allowed.
-
2023 (3) TMI 1482 - DELHI HIGH COURT
Appointment of Ld. Sole Arbitrator for adjudication of the disputes and differences between the Petitioner and the respondent Nos. 1, 2, 3 and 4 - award of costs of this Petition as per Section 31(A) of the Act be paid by the respondents in favour of the petitioner - seeking deposit of (or security for) the amount due and outstanding i.e., Rs 1,34,00,00,000/- to the petitioner from the respondents - also restraint has been sought particularly against respondent No. 1 from making any further payments and/or transferring any assets to respondent No. 2, prior to making payments to the petitioner.
Whether arbitration clauses are not applicable as the petitioner has a remedy available under the RDDBFI Act and the SARFAESI Act? - HELD THAT:- A perusal of Clause 33 of the Facility Agreement reveals that it is in the eventuality that the lender (petitioner herein) does not have the benefit of the RDDBFI and SARFESI Acts, then, the parties will have a right to refer any dispute arising out or in connection with the Facility Agreement, to the arbitration.
The Supreme Court in M.D. FROZEN FOODS EXPORTS PVT. LTD. & ORS. VERSUS HERO FINCORP LTD. [2017 (9) TMI 1266 - SUPREME COURT] on which reliance has been placed by Mr. Rao has held, the remedy under SARFAESI Act is in addition and not in derogation to the RDDBFI Act, which is an alternative remedy available to the lender for recovery of money. The Supreme Court also held that the remedy for recovery of money and the remedy under the SARFAESI Act can proceed simultaneously. Hence this submission of Mr. Chidambaram is liable to be rejected.
Whether all the parties including respondent Nos. 2 and 3 are required to be referred to arbitration when admittedly the respondent Nos. 2 and 3 are not the signatories to the CAL and Facility Agreement? - HELD THAT:- In MAHANAGAR TELEPHONE NIGAM LTD. VERSUS CANARA BANK & ORS. [2019 (8) TMI 576 - SUPREME COURT], the Supreme Court had applied the Doctrine of Group of Companies and held that the CANFINA (a non-signatory party therein) was undoubtedly a necessary and proper party in the arbitration proceedings.
Whether respondent Nos. 2 and 3 can be referred to arbitration along with petitioner and respondent No. 1? - HELD THAT:- The plaintiffs suit was specifically for non-payment of those dues under the main agreement by the defendant No. 1 and also for non-payment of the dues by defendant No. 3 under the personal guarantee. Whereas, the case of the defendants was that the main agreement between plaintiff and defendant No. 1 for supply of goods contained the arbitration clause and thus main claim of the plaintiff arising out of that agreement is covered by the arbitration agreement, thus, the parties must be referred to arbitration under Section 8 of the Act of 1996. The Court after hearing the submissions of both the sides, negated the plea on behalf of the defendants by holding that the arbitration clause being entered into only between the creditor and the principal debtor and not with the guarantors, all the parties including the guarantors thus cannot be referred to arbitration.
This Court appoints Justice L. Nageswara Rao, a Former Judge of Supreme Court of India (Mob. No. 9810035984), as the sole Arbitrator, who shall adjudicate the disputes between the parties, through claims and counter claims, if any. He shall give his disclosure under Section 12 of the Act of 1996. The learned Arbitrator can fix the fee to conduct arbitration proceedings in consultation with the counsel for the parties.
Petition disposed off.
-
2023 (3) TMI 1481 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL. PRINCIPAL BENCH, NEW DELHI
Maintainability of application under Section 7 of IBC - application barred by limitation which is prescribed under Article 137 of the Limitation Act, 1961 or not - Appellant made various payments up to February, 2017 but also on 07.03.2019 sent a proposal for one time settlement of term loan which tantamounts to acknowledgement - HELD THAT:- There is no substance in the argument of Counsel for the Appellant because the Respondent has appended complete detail of various payments made by the Corporate Debtor in the loan account no. 56000983 much after 2015 or till 23.02.2017 when the last payment USD 1 Lakh was made, therefore, there was an acknowledgment on the part of the Corporate Debtor about the debt which was to be paid and since the application under Section 7 was filed on 31.01.2020, therefore, it is well within the limitation.
There is hardly any substance in the present appeal for the purpose of interfering in the order of admission on the ground of limitation.
There are no merit in the present appeal and the same is hereby dismissed.
-
2023 (3) TMI 1480 - ORISSA HIGH COURT
Validity of Revision u/s 263 - ITAT has set aside the said order of the Principal CIT as noted “this is not a case of inadequacy of enquiry. It is a case of absence of enquiry” - HELD THAT:- The view taken by the ITAT appears to be a plausible one and not erroneous in law. Consequently, the Court is not satisfied that any substantial question of law arises. The appeal is dismissed.
-
2023 (3) TMI 1479 - SC ORDER
Over-valuation of imported goods - goods imported for setting up power projects - case of Revenue is that though the power sector projects carry NIL rate of duty and the goods were imported directly to India, but the documents were routed through an intermediary entity created by APML and APRL for the purpose of raising invoices with inflated prices - related parties or not - it was held by CESTAT that as none of the contention advanced by the learned special counsel for the appellant have any force, the order dated 22.08.2017 passed by the adjudicating authority dropping the proceedings that were initiated by issuance of a show cause notice dated 15.05.2014 does not call for any interference in this appeal.
HELD THAT:- The matters are concluded by the findings of fact recorded by the authorities below and the impugned order(s) does not require any interference here - appeal dismissed.
-
2023 (3) TMI 1478 - CESTAT MUMBAI
CENVAT Credit - removal of inputs can be said to be trading of goods or not - non-payment of 6% amount on value of electricity supplied to the MSEDCL for period from Sept. 2013 to June 2014 - HELD THAT:- Undisputedly EDC is an input for the appellant and they could have cleared the same on reversal of credit taken on the said inputs as per Rule 3 (5) of the Cenvat Credit Rules, 2004. Such removal of the inputs cannot be said to be trading in the inputs and the clearance of inputs against which the appellants have taken the credit need to be dealt in terms of the said rule 3 (5) and not in the terms of Rule 6, ibid.
In case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS PUNJAB STEELS [2010 (7) TMI 252 - PUNJAB AND HARYANA HIGH COURT], Hon'ble High Court held that Once the rule-making authority has defined the terms specifically and used the same in different provisions consciously, the argument of learned counsel for the Revenue that merely by analogy even if in one provision both the terms have been used, the same should be read in the other provision as well, where it has not been specifically mentioned, has no legs to stand, as the tax cannot be levied merely by inference or presumption.
There are no merits in the impugned order whereby the reversal has been sought to be made in terms of the Rule 6 of the CENVAT Credit Rules, 2004 by treating such removals to be trading in inputs.
It is also settled position in law as per the following decisions that the substantial benefit of proportionate reversal should not be disallowed to the appellants just for reason of procedural irregularities such as non filing of prior declaration or intimation - the demand raised under Rule 6(3)(i) on the ground that the appellants have not filed declaration under Rule 6(3)(ii) read with Rule 6(3A) of CCR, 2004 is erroneous.
The matter needs to be reconsidered by the original authority for determination of the amount to be reversed against the electricity wheeled out to MSEDCL against a price, by application of the formula as prescribed by Rule 6 (3) (ii) read with Rule 6 (3A) - Appeals is allowed and the matter remanded back to original authority to re-determine the amounts to be reversed on the electricity wheeled out.
Appeal allowed by way of remand.
-
2023 (3) TMI 1477 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Seeking Leave, to prefer an Appeal, against the Impugned Order - Person, who is not a Party, to the Original Proceedings, can prefer an Appeal or not - petitioner contends that in deciding, whether a Leave, must be granted, an Application / Appeal, ought to be taken on Demurrer, and the merits of the matter, cannot be gone into, for the sake of determining an Application, praying for Leave? - Section 61 (3) of the I & B Code, 2016 - HELD THAT:- It is pertinently pointed out that the 1st Respondent / Petitioner, had filed an application, before the Adjudicating Authority (‘Tribunal’), as per Section 60(5) of the I & B Code, 2016, read with Regulations 32A (e), seeking Sale’ of the ‘Corporate Debtor, as a Going Concern, through a Private Sale, along with other Reliefs. Indeed, the 2nd Respondent (G C Logistics India Private Ltd. / Buyer), is arrayed as a Party, in the said Application.
It transpires that the Petitioner / Shareholder of the Corporate Debtor, was not part of the Stakeholders Consultation Committee, and in fact, there is no obligation, on the part of the 1st Respondent / Liquidator, to consult the Petitioner / Appellant, for any reason - It cannot be ignored, that the Petitioner / Appellant, had not filed any Claim Form, in Form – G, during Liquidation Period. In terms of Regulation 20 of the IBBI (Liquidation Process) Regulations, 2016, the Petitioner, has no connection to the Liquidation Process, and later to the Sale of the Corporate Debtor.
In the instant case, the Petitioner / Appellant, was not in a position to prove that he is an Individual, eligible to regain control of the Corporate Debtor, there being no disqualification, as per Section 29A of the I & B Code, 2016 - As a matter of fact, a Scheme, was put before the Stakeholders Consultation Committee Members, in their 9th Meeting, dated 30.10.2021 and a Secured Creditors meeting, was conducted by the 1st Respondent / Liquidator, to consider the Proposal, as per Section 230 of the Companies Act, 2013. In fact, the Petitioner / Appellant, was informed that the Proposal Terms, were not acceptable, by the Stakeholders Consultation Committee and the Secured Creditors.
Keeping in mind of a candid fact that the Petitioner / Appellant, is not, a Stakeholder in the Liquidation Process of the Corporate Debtor, and has no vested interest in the Corporate Debtor, taking note of the fact that the Payment Consideration of Rs.44,64,00,000/- and the same was distributed, as per Section 53 of the I & B Code, 2016, comes to a conclusion that the Leave, prayed for, by the Petitioner / Appellant, to prefer the present Company appeal is not accorded to, by this Tribunal, based on the facts and surrounding circumstances of the case, which float on the surface.
Appeal dismissed.
-
2023 (3) TMI 1476 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Auction of the Corporate Debtor as a going concern - lease deed continues in the name of Corporate Debtor - sale of shares of corporate debtor - HELD THAT:- There is no dispute between the parties that there was a lease by the Chandigarh Administration and the auction of the Corporate Debtor was proposed as going concern. The letter dated 06th May, 2019 referred to by the Learned Counsel for the Appellant was issued by the Chandigarh Administration where mention was made regarding the amount chargeable on account of transfer fees.
Respondent submits that present is a case where lease deed continues in the name of Corporate Debtor hence what is sold is the shares of the corporate debtor - There are no error in the carrying out auction of the corporate debtor as going concern.
Further submission is that under Regulation 32A sub-clause 4, auction did not take place within 90 days. It is not denied that auction sale notice was issued initially prior to the insertion of provision of Regulation 32A, hence the auction, regulation 32A sub-clause (4) cannot be pressed in service.
Thus, no ground has been made to interfere with the Impugned Order - appeal dismissed.
-
2023 (3) TMI 1475 - CALCUTTA HIGH COURT
Seeking execution of an arbitral award - unilateral appointment of an arbitrator - HELD THAT:- The impugned award, which was passed by a dejure ineligible arbitrator, suffers from a permanent and indelible mark of bias and prejudice which cannot be washed away at any stage including the execution proceedings. Infact, as the arbitrator was dejure ineligible to perform his functions and therefore lacked inherent jurisdiction or competence to adjudicate the disputes in hand, the impugned award cannot be accorded the privileged status of an award.
It is palpably clear that an arbitral award passed by a unilaterally appointed arbitrator will not survive the Section 34 challenge. However, the arbitration application before me is not under Section 34 but rather an execution petition under Section 36. There is no denying the fact that the Act is a complete code in itself and at the same time, it is equally true that Section 36provides no scope of adverse interference with an arbitral award except executing it as a decree of the court. While Section 47 of the Code of Civil Procedure, 1908 (CPC) governs the challenge to a court decree at the execution stage, there is no such similar provision provided in the Act. However, at this juncture it would be relevant to examine the jurisprudence with respect to decrees passed by bodies lacking inherent jurisdiction.
While Section 47 of the CPC is not directly applicable, the jurisprudence referred to above cannot be ignored. Similar principles have to be applied in cases of awards passed by arbitral tribunals lacking inherent jurisdiction. This court cannot shut its eyes to the grave irregularity that will occur if it does not interfere. As outlined in various afore-stated judicial pronouncements, an arbitral award passed by a unilaterally appointed arbitrator cannot be considered as an award under the provisions of the Act and consequently, they have to be regarded as non est in the eyes of law - Possibility of waiver was granted as a concession to party autonomy in arbitration law. But that does not mean that the jurisdiction is not inherently lacking before such express waiver is made. As a flip side to this, such waivers should be very strictly construed in terms of its explicitness.
The present execution petition has no legs to stand on for the reasons that the award sought to be enforced is not a legal decree. The decree does not exist. Therefore, not merely is it non-executable, the parties would be free to re-agitate the matter before a new arbitral tribunal. However, the parties have given consent in the present matter.
Petition dismissed.
-
2023 (3) TMI 1474 - PATNA HIGH COURT
Grant of Anticipatory bail - Money Laundering - proceeds of crime - twin conditions as prescribed u/s 45 of the PMLA - HELD THAT:- The Hon’ble Supreme Court in THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE VERSUS DR. V.C. MOHAN [2022 (1) TMI 511 - SUPREME COURT] has held that once the prayer for anticipatory bail is made in connection with offence under the PML Act, the underlying principles and rigors of Section 45 of the PMLA must get triggered-although the application is under Section 438 of the Code of Criminal Procedure.
Further, the three judge Bench of Apex CoVIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] has held that twin conditions shall apply irrespective of the nature of proceedings i.e. regular bail or anticipatory bail.
The petitioner cannot be enlarged on anticipatory bail - prayer for anticipatory bail of the petitioner is hereby rejected.
-
2023 (3) TMI 1473 - CESTAT KOLKATA
Permission for withdrawal of appeal - approval of the Resolution Plan and the subsequent implementation - Appellant prayed that they are not interested in pursuing the Appeals and the same may be dismissed as withdrawn - HELD THAT:- In view of the prayer, as made by the Ld.Advocate, the Appeals filed by the Appellant, are dismissed as withdrawn.
-
2023 (3) TMI 1472 - ITAT PUNE
Penalty u/s 270A - under-reporting of income - Mandation to mention clear charge - HELD THAT:- Order by AM - The penalty provisions of section 270A like provision of section 271(1)(c) are detrimental, albeit commercial consequences and being mandatory brooks no trifling or dilution therewith. Thus a contravention of a mandatory condition or requirement is fatal with no further proof and as a result in our considered view the ratio decidendi laid in context of section 271(1)(c) by the Hon’ble Supreme Court in Dilip N Shroff Vs JCIT [2007 (5) TMI 198 - SUPREME COURT] and Ashok Pai Vs CIT‛ [2007 (5) TMI 199 - SUPREME COURT] further by plethora judgements including Samson Pericherry‛[2017 (1) TMI 1292 - BOMBAY HIGH COURT], Goa Dorado [2020 (1) TMI 140 - BOMBAY HIGH COURT] and New Era Sova Mine [2019 (7) TMI 1002 - BOMBAY HIGH COURT] shall still hold good even in impugned penal proceedings of section 270A of the Act.
AO after having clearly analysed facts and circumstances of the case has dejectedly failed to identify or determined and then communicate either through reassessment order or through notice the specific circumstance or incidence i.e. specific clause (a) to clause (g) of s/s (2) of section 270 within which the case of the appellant falls so has to hold income as under-reported to trigger said penal provision. The failure continued further in identifying or determining and showcasing the specific action of the appellant in terms of clause (a) to clause (f) to s/s (9) of section 270 within which such action of the assessee falls so has to jacket or categorise such under-reported income is in consequence of mis-reporting. We note that without adhering to aforestated exercise, the Ld. AO precipitately culminated penal proceedings imposing a penalty @200% of the tax sought to be evaded.
Non identification or determination vis-à-vis communication of specific clause lineally from sub-section (2) and sub-section (9) would drastically obstruct an assessee from enforcing his right to dismantle the charge alleged against him, thus resulting into violation of principle of natural justice.
Non-application of mind by tax authorities while dealing with the penal provisions cannot at this stage be improved by remanding the matter back for denova consideration, hence prayer of the Ld. DR stands meritless.
We find force in the argument of the appellant that, the failure on the part of lower tax authorities to identify and communicate the specific circumstance or incidence from clause (a) to (g) of s/s (2) of section 270A by virtue of which the income of the appellant held as under-reported and further failure on the part of lower tax authorities to showcase which of the specific action of the appellant from clause (a) to (f) of s/s (9) was determinant before imposing the impugned penalty u/s 270A of the Act has rendered the entire proceedings invalid and thus untenable in the eyes of law.
CONCURRENT ORDER - BY J.M. - Find no merit in the Revenue’s arguments as made clear that the assessee’s case law indeed relates to the earlier penalty provision i.e., sec.271(1)(c) of the Act only wherein various hon’ble higher judicial forums had settled the law that the Assessing Officer ought to specify as to whether the concerned taxpayer had concealed or furnished inaccurate particulars of his taxable income during the course of assessment.
The very line of judicial precedents would squarely apply even for the amended penalty provision i.e., sec.270A of the Act as well wherein the legislature has not only prescribed twin limbs of “under reporting of income as well as misreporting of income”, but also, unlike the earlier provision u/sec.271, this time it has stipulated specific deeming illustrations under both the twin foregoing heads of the “under reported income” and “misreporting of income” in sub-sections (2) and (9) (a to f) respectively.
Once the instant twin appeals involve levy of penalty @ 200% of the taxes sought to be evaded and the learned lower authorities have held the assessee to have “under-reported his taxable income in consequence to misreporting”, the latter limb of misreporting containing six “sub-limbs” in clauses (a to f) under sub-section- (9) deserve to be read as an extension of sub-section (8) to section 270A only.
Going by stricter interpretation as per Commissioner of Customs (Imports), Mumbai vs. Dilipkumar And Co. & Ors.[2018 (7) TMI 1826 - SUPREME COURT] the above stated judicial precedents regarding the “limb theory” would squarely apply even in case of failure of the Assessing Officer to quote any of the six sub-limbs as well prescribed in sec.270A(9) (a) to (f) of the Act introduced by the legislature in order “to rationalize and bring objectivity, certainty and clarity in the penalty provisions”. And that his noncompliance to this clinching effect would not only defeat the legislative mandate but also it renders the amending provisions an otiose. Thus accordingly hold in these peculiar facts and circumstances that both the impugned penalties deserve to be quashed.
Assessee appeal allowed.
-
2023 (3) TMI 1471 - CESTAT MUMBAI
CENVAT Credit - inputs gone in the manufacture of the final product viz. LPG cleared at NIL rate of duty under Notfn. No.4/2006-CE dated 1.3.2006, as amended - HELD THAT:- The issue involved in the present two appeals is no longer res integra and covered by the decision of the Tribunal in appellant’s own case RELIANCE INDUSTRIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2022 (11) TMI 923 - CESTAT MUMBAI] where it was held that the principle stands established that rule 6 of CENVAT Credit Rules, 2004 is inoperable ab initio in such clearances and the credit was allowed.
There are no merits in the impugned order and the same is set aside - appeal allowed.
-
2023 (3) TMI 1470 - ANDHRA PRADESH HIGH COURT
Condonation of delay in filing appeal - petitioner is not keeping good health and his counsel before the court below on that particular day was in some other court conducting trial work - sufficient reason for delay or not - Section 5 of the limitation Act - Permanent injunction restraining the defendants and their men from obstructing or inferring in any manner from using the Rastha by taking the bullock cart which is existing from time immemorial - HELD THAT:- The present application was filed under Section 5 of the limitation Act to condone the delay of 339 days in filing the petition for restoration of the suit which is filed for permanent injunction restraining the defendants from interfering with the usage of 'Rasta'. No doubt the petitioner has not explained the reasons for the delay in his application. But, the court should have considered the same by imposing some costs.
Ordinarily, the litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible adjudication is done on merits. Though the suit is of the year 2012, still the same is pending and if the said application is not considered, the rights of the petitioner will be affected. Keeping in view of the same, this court is inclined to consider the revision by passing following order.
The Civil Revision Petition is allowed setting aside the order on the file of Principal Junior Civil Judge, Adoni, on a condition of payment of costs at Rs. 1500/- to the respondents within two weeks from the date of receipt of this order.
-
2023 (3) TMI 1469 - TRIPURA HIGH COURT
Seeking withdrawal of writ application and prefer an appeal before the learned CESTAT - petitioner submits that they would be making the pre-deposit of the balance amount as mandated under Section 35(F) of the amended Excise Act, 1944 - realization of service tax dues - Assessment years 2014-15 and 2015-16 for which two separate proceedings were initiated by the respondent-Joint Commissioner, CGST - HELD THAT:- The writ petition is allowed to be withdrawn.
The petitioner is at liberty to approach the learned CESTAT against the impugned orders within a period of 2(two) weeks from today and also make the necessary pre-deposit apart from other statutory compliances for maintaining the appeal. The respondents have already indicated that no coercive steps would be taken for a period of 2(two) weeks from today - However, if no appeal is filed within a period of 2(two) weeks from today, the respondents-Revenue would be at liberty to take steps for realization of the Service Tax dues.
The writ petition is disposed of.
-
2023 (3) TMI 1468 - DELHI HIGH COURT
Withholding tax certificate issued u/s 197 - deduction of lower withholding tax - petitioner has sought issuance of certificate u/s 197 at “nil” rate - concerned authority issued the impugned certificate stipulating withholding tax at the rate of 9.99% - Petitioner says that in this arrangement, there is no transfer of right in the copyright of the software programmes and therefore the payment made to the petitioner was not exigible to withholding tax - HELD THAT:- In case instructions are received to resist the writ petition, a counter-affidavit will be filed at least five days before the next date of hearing.
List the matter on 27.03.2023.
-
2023 (3) TMI 1467 - ITAT AHMEDABAD
Denial of Foreign Tax Credit (FTC) claimed u/s. 90 - there was delay in furnishing Form 67 as per Rule 128 of the Income Tax Rules - HELD THAT:- It is pertinent to note that the assessee has paid the taxes on the income earned in United Kingdom in that country and assessee is asking for credit of the same while filing the return of income. The CIT(A) held that the assessee has not filed Form 67 before time allowed under Section 139(5) of the Act and therefore, Form 67 is non-est in law does not categorically discussed the assessee’s case as the assessee has already paid taxes in UK and as per Article 24(2) of the DTAA between India and UK the foreign income cannot be taxed twice. The decision of Bangalore Tribunal in case of Vinodkumar Lakshmipathi [2022 (10) TMI 87 - ITAT BANGALORE] is dealing on the identical situation and the Tribunal has taken cognizance of the same in light of the decision of Hon’ble Supreme Court in case of Mangalore Chemicals & Fertilizers Ltd. [1991 (8) TMI 83 - SUPREME COURT] and held that (i) rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No. 67; (ii) filing of Form No. 67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act.
Thus we direct the Assessing Officer to give credit for foreign tax as per Form 67 dated 05.04.2021 filed by the assessee prior to the filing of the appeal before the CIT(A) after due verification. Appeal of the assessee is partly allowed for statistical purpose.
-
2023 (3) TMI 1466 - SC ORDER
TDS u/s 194H - tds on payments made to distributors towards price protection and special price clearance discounts - relationship between the assessee and the distributor is that of Principal to Principal OR Principal to Agent - as decided by HC [2023 (8) TMI 456 - KARNATAKA HIGH COURT] factual findings recorded by the CIT(A) that payment from the distributor to the assessee has no link with the further sale made by the distributor and same having been confirmed by the ITAT which is the last fact finding authority, decided against revenue.
HELD THAT:- As petitioner submits that the matter is covered by the decision of Bharti Cellular Limited [2024 (3) TMI 41 - SUPREME COURT] as held assessees would not be under a legal obligation to deduct tax at source on the income/profit component in the payments received by the distributors/franchisees from the third parties/customers, or while selling/transferring the pre-paid coupons or starter-kits to the distributors. Section 194-H of the Act is not applicable to the facts and circumstances of this case.
In view of the statement made, Special Petition is dismissed as being covered by the above-mentioned decision.
-
2023 (3) TMI 1465 - CESTAT CHENNAI
CENVAT credit of service tax paid on charges collected for treatment by M/s.TPL - Department has denied the credit alleging that the activity of effluent treatment is a post-manufacturing activity and therefore not eligible for credit - HELD THAT:- Undisputedly, the effluent treatment of the waste water (hazardous waste) is necessary in order to manufacture the goods. The appellant cannot continue manufacturing of the goods without taking steps for effluent treatment of the waste. The department has denied the credit alleging that the activity carried out by the appellant is an activity which is after the manufacture of goods. The decision of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] is with regard to the eligibility of credit availed on inputs and not on input services. It is not possible for the assessee to avail all types of input services within the factory premises. The decision of Maruti Suzuki Ltd. is not applicable to the facts of this case.
Moreover, the activity of waste water treatment is part of manufacturing activity and any activity which is directly or indirectly in relation to manufacture would be eligible for credit - the credit has been denied without valid reasons. The appellant is eligible for credit. The impugned order disallowing the credit as well as confirming the demand and imposing penalty is set aside.
Appeal allowed.
........
|
