|
Advanced Search Options
Case Laws
Showing 1 to 20 of 255 Records
More information of case laws are visible to the Subscriber of a package i.e:-
Party Name, Court Name, Date of Decision, Full Text of Headnote and Decision etc.
-
2020 (6) TMI 829
Inaction on the part of the respondents so far as return of additional tax to be paid by the petitioner in the light of the introduction of the new tax regime under the GST Law - HELD THAT:- The writ petition stands disposed of with a direction to the respondent No.2 to take a decision on the representation that the petitioner has made for the refund of the additional tax burden suffered by the petitioner.
-
2020 (6) TMI 828
Seeking to appoint an Arbitrator for resolution of disputes between the parties - construction of ADM-cum- Tech Accommodation (13) rooms at Hakimpet, Hyderabad - accord and final satisfaction as pleaded by the respondents through the Final Bill, as pleaded by the respondents in terms of Condition No.65 of IAFW 2249 (GCC) - applicant prima facie established coercion and undue influence in signing the Final Bill or not.
HELD THAT:- It is pertinent to note that the applicant failed to offer any plausible explanation for not raising the issue of coercion and undue influence immediately after payment under Final Bill. The applicant, after receiving the payments under Final Bill, had signed ‘no further claim’ certificate. Since the full and final payment is made in the Final Bill and the applicant signed ‘no further claim’ certificate, as the arbitration application is liable to be dismissed on that ground alone, since the applicant signed the same without any protest/objection. A party who comes to the court, must come with clean hands. When fraud, undue influence and coercion is pleaded, at least some factual foundation must be laid in the pleadings, which is lacking - In the present application, by way of passing reference made allegations of undue influence and coercion, as such, this application is liable to be dismissed on that ground alone. When once there is full and final satisfaction, there exists no arbitral dispute, as rightly contended by the learned counsel for the respondents.
Since invocation of arbitration is prior to Amendment Act, 2015, the provisions of said Act, 2015 are not applicable to such arbitral proceedings which have commenced in terms of the provisions of Section 21 of the Principal Act, unless otherwise agreed by the parties - When once one of the parties adopts a path of full understanding and executes a document in furtherance of the same, it is not open to him to take recourse of arbitration thereafter.
In the decision relied upon by the learned counsel for the respondents in PK. RAMAIAH VERSUS C& MD NATIONAL THERMAL POWER CORPORATION NTPC [1993 (10) TMI 346 - SUPREME COURT], the Hon’ble Apex Court held that if accord and satisfaction is established, no arbitral dispute exists for referring the matter to arbitration.
There is no merit in the Arbitration Application. Accordingly, the same is dismissed.
-
2020 (6) TMI 821
Seeking writ of habeas corpus (to produce the body before the court) for production of his sister - petitioner submits that despite Gulfisha Fatima being granted bail, she was illegally continued to be kept in custody - Learned ASJ extended the judicial remand custody of Gulfisha Fatima upto 25.06.2020, between the date of filing of this petition, and the date of return of the notice/ hearing of the petition - whether the said order has been passed by the learned ASJ-02 without jurisdiction?
HELD THAT:- The submission of Mr. Pracha that the learned ASJ-02, Shri Dharmender Rana was not competent, and did not have the jurisdiction to direct extension of judicial remand of Gulfisha Fatima vide his order dated 28.05.2020 upto 25.06.2020 is completely misplaced and we reject the same.
The NIA Act primarily is an Act to constitute the National Investigation Agency, and to provide for trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court. In the present case, it is not even the petitioner’s submission that the Central Government has entrusted the investigation of the case registered against the detenue Gulfisha Fatima under UAPA to the NIA. The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA. Section 43 of the UAPA prescribes the ranks of Police Officers competent to investigate offences under Chapters IV and VI of the said Act by different Police Organisations.
Thus, it is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA. This position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate.
Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court - thus, it is clear to us that Shri Dharmender Rana, ASJ-02 was competent to deal with bail application, as well as the aspect of remand of Ms. Gulfisha Fatima when he passed the orders on the application moved by the State to seek extension of judicial remand of Gulfisha Fatima, and remanded her to judicial custody till 25.06.2020 vide his order dated 28.05.2020.
The present writ petition is not maintainable since the detenue Gulfisha Fatima is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so - Petition dismissed.
-
2020 (6) TMI 818
Registration of fake and fraudulent domain names - seeking to ensure the continued suspension of and block access to fraudulent domain names - HELD THAT:- The internet is a network of networks. Every machine linked to any network has an IP address. Internet service providers assign these IP addresses and these may be static or dynamic (changing with each login). When this happens, the login being provided by an ISP, it is always possible to determine the country where the login originates. An 'access blocking' instructions only serves to block access to a remote website or server (possibly overseas) from an IP address of domestic origin, i.e. from the country ordering the block. Any such 'block' is easily circumvented by masking the originating country IP of the user. He or she only needs to use any of the commonly available VPN products. A VPN is a Virtual Private Network. A VPN user establishes a secure connection to another network over the internet, thus by-passing region-restrictions, shielding browsing activity and so on - the access to such bypassing technology is still not common, and the average user may not know about it or even how to use it. But VPN products are available for mobile phone platforms as well now. Therefore, other than lulling an applicant into a completely hollow and faux sense of safety (and conceivably giving some ill-informed government functionary an entirely unwarranted sense of power or authority), blocking access achieves next to nothing.
A 'continued suspension' is therefore not possible or practicable at least in the current technology - Upon that end of registration period, there is a further period of two to three weeks as a cooling-off period for the registrant to apply for re-registration in case the registration has inadvertently lapsed. Obviously, that cooling-off period would also be covered by the present order. However, once the domain name is released from registration by one domain name registrar then it is released worldwide across the entire cyber system and network of the internet. This means that any person can then attempt and will succeed in getting a registration through any other registrar or even the very same registrar by a process that is entirely automated and requires no manual intervention - it is therefore not possible to allow the prayer to include the words 'ensure continue suspension of and block access to'. This will conceivably put the Defendant No. 1 in a state of being constantly in threat of contempt proceedings. Therefore, those words will be excluded.
Disclosure of registrant information from Endurance Domains, GoDaddy and Porkbun as also from the .in registry and NEIE in respect of the offending registration - HELD THAT:- Relief granted only against Endurance Domains, GoDaddy and Porkbun, not against the .in registry and NEIE.
So far as Endurance Domains, GoDaddy and Porkbun are concerned, this is a matter that should lend itself to a structured resolution that would result in no longer requiring these parties to continue as party defendants to the Suit. What needs to be established is a working protocol within the limits of what the technology can do and what the law permits.
Application disposed off.
-
2020 (6) TMI 814
Seeking a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely Polyester knitted Fabrics during the period 2013 to 2016 - HELD THAT:- Keeping in view the limited prayer made in the writ petition, the same is disposed of with a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely Polyester knitted Fabrics during the period 2013 to 2016 within a period of six weeks.
The present writ petition stands disposed of.
-
2020 (6) TMI 812
Rectification of mistake u/s 154 - petitioner submits that without complying the principles of natural justice the impugned order has been passed by rejecting the rectification application - HELD THAT:- As per communication Ext.P5 dated 29.01.2020 it is clear that the rectification application would not have been undertaken, owing to certain technical problems i.e, the functionality of the Department. However vide impugned communication dated 05.07.2019 Ext.P5, same has been rejected in a most sketchy and mechanical manner. Even the order do not disclose affording of any other opportunity of hearing.
Considering the facts and circumstances, petitioner cannot be relegated to alternate remedy as the order prima facie is without jurisdiction. Accordingly, impugned order Ext.P7 dated 05.06.2020 is quashed and matter is remitted to 1st respondent to decide the rectification application Ext.P6 afresh, in accordance with law, after affording an opportunity of being heard to the petitioner. Let this exercise be undertaken within a period of two months from the date of receipt of a certified copy of the judgment. Till such time, no coercive measures shall be taken against the petitioner.
-
2020 (6) TMI 807
Constitutional Validity of Conditions No. 4 and 5 under Technical Bid Evaluation (Additional Eligibility) criteria in e-tender notice ID No. 2020- _AAI_048738_1 issued by the respondent No.2/AAI (AAI) inviting applications for providing environmental support services (up- keeping) - HELD THAT:- The scope of judicial review in matters relating to tender are now well settled.
In JAGDISH MANDAL VERSUS STATE OF ORISSA AND OTHERS [2006 (12) TMI 447 - SUPREME COURT], after considering the relevant case law, the Supreme Court had observed that There were good and adequate reasons for the Committee to reject the lowest tenders of fifth respondent in both cases and there was no justification for the High Court to interfere with the contracts awarded to the respective appellant in these two appeals. We also record the statement made by the counsel for the appellants in the two appeals, on instructions, that the appellants are ready and willing to execute their respective works, without seeking any revision in rates or compensation for the delay in commencement of the work on account of pendency of the legal proceedings till now.
In the instant case, nothing has been brought out by the petitioner to demonstrate that the process adopted or the decision taken by the respondent No 2/AAI is contrary to the law laid down by the Supreme Court. There is no material to arrive to a conclusion that the decision taken by the respondent No.2/AAI is arbitrary or irrational or that public interest is adversely affected that would compel us to interfere in the tender conditions - It has only made them more stringent. It cannot be said that the authority issuing the tender is not empowered to impose more stringent conditions to ensure better quality of performance of the contract and also to ensure that the contractor has the financial means to execute the contract and that he is not a fly by night operator who will abandon the work midstream.
In the present case, the petitioner has failed to demonstrate as to how Conditions No.4 and 5 have been introduced only to eliminate it or to favour a few individuals. There is no justification for this court to exercise its jurisdiction under Article 226 of the Constitution of India only to dilute the additional stringent conditions imposed by the respondent No.2/AAI in order to make it compliant with the CVC guidelines.
From a perusal of the above, the principle which emerges is that after having participated in the tender process, a bidder cannot turn around and challenge the tender conditions. The bidder has no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested parties in response to the NIT in a transparent manner and free from any hidden agenda - petition dismissed.
-
2020 (6) TMI 805
Right to vote in the forthcoming Rajya Sabha - Magistrate has specifically stated that the petitioner shall be taken to Vidhan Sabha for voting purpose and brought back to Dhanbad Mandal Kara after casting of the vote under strict police security and custody - HELD THAT:- The grievance of the petitioner in this criminal writ application stands redressed. The Jail Superintendent, Dhanbad and the Senior Superintendent of Police, Dhanbad will ensure compliance of the aforesaid order.
This criminal writ petition is kept pending because of the submission made by the learned Advocate General wherein he has stated that this petitioner has filed an application before SDJM, Dhanbad for similar relief - the matter needs to be looked into. In the meantime the petitioner is directed to bring on record the petition which he had filed before the court below through Jail Superintendent which prompted the court to pass the order dated 16.6.2020.
List this case after two weeks.
-
2020 (6) TMI 798
Money Laundering - Provisional attachment of bank accounts - Sub-Section (1) of Section 5 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- All the writ petitions are disposed of with the direction that the impugned provisional attachment order dated 05.05.2020 being specific for the amounts attached, the respective petitioners would be at liberty to operate their bank accounts mentioned in the impugned provisional attachment order subject to keeping a balance of the amount attached and that, this would be without prejudice to the rights and contentions of the respondent nos. 1 & 2 to pass such further orders of attachment in accordance with law, as may be called for.
-
2020 (6) TMI 796
Seeking grant of bail - applicant is seeking bail on the ground of surgery of dependent family member - HELD THAT:- In view of the status report, issue notice to Dr. Gajinder Nayyar, MBBS, MAMC DMC No. 36089, to show cause as to why the matter be not referred for further investigation into the allegations made in the status report.
List on 12.06.2020.
-
2020 (6) TMI 792
Seeking grant of bail - actual owner of firms - petitioners No.1 and 2 have been alleged to be proprietors of the firms - raid was conducted at the house of accused Naveen Jain and the account books etc relating to these firms were recovered from him - HELD THAT:- It is pointed out that the petitioners were only employees of Naveen Jain and have been indicted falsely who are facing arrest at the hands of the respondent who had issued summons to them under Central Goods and Services Tax Act, 2017 and it is apprehended that as and when they appear, they would be taken into custody in terms of Section 69 of Goods and Service Act, 2017.
Attention of the Court is drawn to the order in TARUN BASSI VERSUS STATE OF PUNJAB & ORS. [2020 (6) TMI 728 - PUNJAB AND HARYANA HIGH COURT] wherein a similar provision regarding power of arrest as contained in Punjab Goods and Services Tax Act is under challenge.
Notice of motion for 18.08.2020.
-
2020 (6) TMI 791
Benami Transaction - Real owners of property - Whether Govindasamy Naidu alone was having half share in the land covered under the sale deed dated 05.04.1911, Ex. A1 or Govindasamy Naidu and Chinnasamy Naidu are having equal right, interest and title in the half share of the property covered under Ex. A1 dated 05.04.1911? - HELD THAT:- No hesitation to hold that Chinnamma Naidu had adequately contributed for purchasing the half share in the suit property by his elder brother Govindasamy Naidu under Ex. A1 and that is the reason why Chinnama Naidu could independently execute Exs. A5, A6 and A7, registered mortgage deeds in favour of third parties, for availing a loan. It is also to be stated that even a mortgage cannot be permitted to be executed by a person who has no title to the property covered under the mortgage. This is more so that the mortgage deeds under Exs. A5, A6 and A7 were registered mortgage deeds. In the absence of title in favour of Chinnamma Naidu, the registering authorities would not have permitted execution of Exs. A5, A6 and A7 by Chinnamma Naidu, independently. Therefore, we answer point No. 1 framed in this appeal to the effect that it was established by the appellants/plaintiffs that their grandfather Chinnamma Naidu had adequately contributed for purchasing the property covered under Ex. A1, sale deed dated 05.04.1911 along with his elder brother Govindasamy Naidu.
Whether Govindasamy Naidu was holding the share of his brother Chinnamma Naidu in his fiduciary capacity? - Whether the suit transaction is hit by the provisions of Benami Transaction Act? - HELD THAT:- Having regard to the fact that Ex. A1 in this case emanated during the year 1911 and the custom, tradition and belief practiced in those days, we are of the view that Chinnamma Naidu reposed absolute faith and trust towards his elder brother Govindasamy Naidu and Govindasamy Naidu, true to such faith and confidence reposed on him, had held the suit property in a fiduciary capacity on behalf of his brother Chinnama Naidu. Such a relationship falls within the exception to Section 4 of the Prohibition of Benami Property Transaction Act, 1988 (now Section 2(9)(ii)(iv) of The Benami Transactions (Prohibition) Amendment Act, 2016.
It is evident from Section 4 of the Act that the provisions of the Act are not applicable, if a person, in whose name the property is held, is a coparcener in a Hindu undivided family and the property is held for the benefit of such coparcener in the family. As we have held in respect of point No. 1, Chinnamma Naidu has got a share in the property covered under Ex. A1 along with his elder brother Govindasamy Naidu. Therefore, Chinnama Naidu is a coparcener in respect of the suit property and therefore, the applicability of the Act is specifically excluded. The appellants/plaintiffs also raised the plea with respect to fiduciary capacity in their reply statement before the trial court and evidence was also let in to that effect. Therefore, we hold that Govindasamy Naidu was holding the suit property in a fiduciary capacity for and on behalf of his younger brother Chinnamma Naidu and consequently, the suit transaction is not hit by the provisions of Benami Transaction Act. Accordingly, we answer point Nos. 2 and 3 also in favour of the appellants/plaintiffs.
Whether the claim of the appellants for partition and separate possession is hit by the provisions of Limitation Act? - HELD THAT:- As evident from the fact that the name of the father of the plaintiffs Ramachandran is reflected in the revenue records in respect of the suit property, indicating that the plaintiffs, who are legal heirs of Ramachandran, continue to remain in possession of the suit property. Even otherwise, in a suit for partition, the possession of one of the co-parceners is for and on behalf of the other. The cause of action for filing a suit for partition is recurring one. As long as the relationship of co-ownership subsists, the right to seek partition continues. Even if one of the co-owners files a suit and subsequently abandon it for some reason, it will not be a ground for dismissal of the suit filed by another co-owner on the same cause of action. All that it implies is that the co-owner, who abandons a legal action initiated by him without continuing it any further, can be construed as the one who has chosen to continue his ownership in common without resorting to seek for division of the property and to allot him a separate share. We therefore hold that right to bring an action for partition is a continuing right, incidental to the right of joint ownership in the property in question. Such right subsists as long as the property remains undivided. Therefore, we hold that the claim of the appellants for partition and separate possession is not hit by the provisions of Limitation Act and we answer Point No. 4 also in favour of the appellants/plaintiffs.
Whether the present suit for partition is not maintainable without a prayer for declaration of title? - HELD THAT:- In view of our conclusion with respect to point No. 1 holding that Chinnamma Naidu has jointly contributed for purchase of half share of the property covered under Ex. A1 along with his elder brother Govindasamy Naidu, we have to necessarily answer this question also in favour of the plaintiffs. Even otherwise, under Ex. A10, Patta, the name of Govindasamy Naidu and Chinnamma Naidu were mentioned as joint owners of the property in question. That apart, Ex. A11, series of Kist receipt would indicate that Chinnamma Naidu has individually paid kist in respect of his share of the property covered under Ex. A1. As long as the revenue records stood mutated in the name of grandfather of the plaintiffs Chinnama Naidu and the plea of the plaintiffs that they were in joint possession of the suit property along with the descendants of Govindasamy Naidu, coupled with the admission of Ponnusamy, tenth defendant, in his written statement admitting the title of Chinnama Naidu in the suit property, we are of the view that the suit filed by the plaintiffs for partition, even without the relief of declaration of title, is maintainable. We accordingly answer Point No. 5 also in favour of the plaintiffs.
Whether the plaintiffs are ousted from the suit property as has been claimed by the defendants 10 to 13? - HELD THAT:- The plaintiffs, in their plaint, have asserted that they are jointly in possession of the suit property along with the other legal heirs viz., defendants. The revenue records also stand in the name of their father Ramachandran. In a suit property, it is always regarded that the possession of one of the co-parceners is for and on behalf of the other co-parcener as well and the plea of ouster cannot be considered in a suit for partition on par with the plea of ouster raised in a suit for declaration. We could also see from Ex. B16 filed before the trial court that Nandakumar, son of Ponnusamy (tenth defendant) has filed a separate suit before the District Munsif Court, Coimbatore against Rajagopal, Son of Annasamy, the third defendant in the suit, and three others. The said suit was filed for a bare injunction to restrain the defendants in the suit from in any manner alienating or encumbering the suit property. The plaintiff asserts a right to portion of the suit property on the basis of the settlement deed executed in his favour by his father Ponnusamy (tenth defendant in the present suit). In the plaint, the plaintiff in O.S. has categorically refers to the present suit filed by the appellants/plaintiffs and also states that they are also in joint possession of the suit property along with other legal heirs. In such circumstances, the plea of ouster cannot be countenanced. Therefore, we answer point No. 6 also in favour of the appellants/plaintiffs in this appeal.
-
2020 (6) TMI 788
Refund claim - petitioner has repeatedly requested the respondent authorities to grant him refund as claimed - HELD THAT:- In opinion of this Court, interest of justice would be served if the authorities are directed to consider all pending applications filed by the petitioner and examine whether the petitioner is entitled to refund of the claim. Such decision shall be taken in accordance with law as expeditiously as possible within a period of four weeks from the date of receipt of the present order.
This Court has not expressed any opinion on such application filed by the petitioner and the same shall be considered by the authorities as directed by this Court on its own merits - Petition disposed off.
-
2020 (6) TMI 786
Seeking grant of anticipatory bail - Smuggling - Heroin - contraband item - only evidence against petitioner is in the shape of disclosure statement, the admissibility and veracity of which would be tested during the course of trial - HELD THAT:- It is a case where the petitioner has been nominated solely on the basis of disclosure statement, the petition is accepted and it is ordered that the petitioner in the event of his arrest shall be released on bail subject to his furnishing personal bonds and surety bonds to the satisfaction of Arresting/Investigating Officer. However, the petitioner shall join the investigation as and when called upon to do so and cooperate with the Arresting/Investigating Officer and shall also abide by the conditions as provided under Section 438 (2) Cr.P.C.
Petition disposed off.
-
2020 (6) TMI 779
Refund of amount deposited at the time of filing of appeal - appealable order under Section 112 of the C.G.S.T. Act, 2017 - time limitation for filing appeal - HELD THAT:- The petitioner very fairly admits the legal position and also the fact that the goods have already been released.
The instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
-
2020 (6) TMI 778
Petition for transfer of all matters to the Delhi High Court - HELD THAT:- As pointed out at the Bar that against the order of the learned Single Judge impugned in this Letters Patent Appeal, one of the parties has approached the Supreme Court and the matter is listed today. It is further stated that other matters relating to the same issue having been filed in different High Courts, there is a petition for transfer of all matters to the Delhi High Court which is also listed today before the Supreme Court. As agreed by the learned counsel for the parties, let this matter be posted on Tuesday i.e. 23.06.2020
-
2020 (6) TMI 772
Direction to furnish adequate security in the form of a bank guarantee issued by a nationalized bank in India or such other security that shall cover the entire sum in dispute between the parties - direction to deposit amount which is equivalent to the amount paid by the Petitioner herein to the Respondent as consideration under the Contract dated 10.03.2020 - amount so deposited by the Respondent be kept in an interest-bearing fixed deposit until the conclusion of the arbitration proceedings.
HELD THAT:- The thought process, which weighed for incorporating proviso to Section 2(2) of the Act is the difficulty faced by both the Indian and the foreign party in seeking orders/interim measures in India in a foreign seated arbitration. So, it follows that proviso to Section 2(2) was incorporated to facilitate the parties to move the Court in India, even though the arbitration is seated outside India - it is clear that, passing of orders/granting interim-measures under Section 9 does not presuppose existence of asset(s) in India. The bank guarantee, which is furnished/amount deposited pursuant to an order passed by a Court in India under Section 9 (as stated at "C" above) can be invoked/withdrawn by an Indian party in the eventuality, it succeeds in a foreign seated arbitration in satisfaction of the Award, even though the foreign entity may not have any assets in India.
Tt is clear that for grant of the relief as prayed for by the petitioner, the petitioner has to show that; (a) it has a prima facie case and balance of convenience in its favour and shall succeed in the arbitration proceedings and (b) that the respondent is acting in a manner as to defeat the realization of the future award that may ultimately be passed. It follows that orders, as sought by the petitioner cannot be passed mechanically on its asking, as the exercise of power under Order XXXVIII Rule 5 CPC, is drastic and extraordinary.
There exists disputed facts which cannot be decided in this petition. It has to be decided by the Arbitral Tribunal. Further, it is found that the averments in the petition. The plea in support of the reliefs primarily is that in view of COVID-19, the petitioner is unable to meet the timelines for invoking the Arbitration and there is an apprehension that the respondent may make attempts to obstruct the satisfaction of the decree, which may be awarded in favor of the petitioner in the arbitration proceedings.
Petition dismissed.
-
2020 (6) TMI 770
Capital gain computation - Transfer of capital asset within the meaning of section 2(47)(ii) - Scheme of amalgamation - renunciation of rights to the ultimate transfer of shares by SWFSL in RRITCPL to MBL - Settlement Commission order - HELD THAT:- When SWCL was relinquishing its shares, the allotting and subscribing companies were subsidiaries or step down subsidiaries of SWCL. The transactions being limited to that extent, possibly, the Department would not have had a case to argue. The transactions did not stop with SWCL relinquishing its shares in its subsidiary and step down subsidiaries. In fact, these relinquished shares were ultimately sold of to MBL for a valuable consideration. The relinquishment of rights by SWCL and allowing a merger to take place are mechanisms to create an entity which but for such steps and measures would not have come about. The newly created entity was thereafter sold to MBL. This mechanism is improper, results in avoidance of taxation and impermissible at the end of SWCL. The Settlement Commission has not considered this aspect of the contentions of the Department in the impugned order. It has not assigned any reason as to why, when the subsidiary and step down subsidiary of SWCL is transferring the shares to MBL, the same will not be taxed on SWCL as capital gains as SWCL was instrumental in bringing about the ultimate entity. The Settlement Commission has failed to take into consideration the fact that the entity created and sold to MBL come about by the active steps taken by SWCL and that SWCL therefore may not enjoy the benefits of section 47(iv) of the Act of 1961.
The applicability of sections 45 and 47 of the Act of 1961 have to be considered in the context of the transactions had by the assessee. If on consideration of the entirety of the transactions, the Department can substantiate the fact that the assessee that is respondent No. 2 had entered into such transactions in order to avoid taxes payable, then, respondent No. 2 is not entitled to claim that the transactions in question were covered under sections 45 and 47 of the Act of 1961 and therefore not taxable.
The contention of respondent No. 2 on the interpretations of sections 47 and 45 and the authorities cited on such subject are to be considered in the context of the actual contours of the transactions of the assessee, that is respondent No. 2, had in this regard. In George Henderson and Co. Ltd. (supra) a reference to the Supreme Court was answered by finding that the actual contract price paid was obscure and its import could not be determined. The Supreme Court directed the Appellate Tribunal to rehear the appeal and record a clear finding as to what was the actual price received.
Again the contention of respondent No. 2 relying upon Vodafone International Holdings BV [2012 (1) TMI 52 - SUPREME COURT] that control is an interest arising from holding a particular number of shares and that the same cannot be separately acquired or transferred is required to be considered in the given facts and circumstances of the present case. S. R. Chockalingam Chettiar [1967 (4) TMI 39 - MADRAS HIGH COURT] has held that the right to obtain a specified number of rights shares under section 81 of the Companies Act, 1956 in a fresh issue of capital is a tangible right and is not interest in future property but is existing property as defined in the Gift-tax Act, 1958.
The fact that SWFSL offered capital gains arising out of the transactions of shares of RRITCPL to MBL for the assessment year 2004-05, ipso facto, does not absolve SWCL from its tax liability in the event, it is found that SWCL brought about an entity to be transferred to a third party by the mechanism employed to defraud the Revenue.
By the impugned order the Settlement Commission has overlooked the evidence produced before it so far as transactions relating to M/s. Amrit Engineering, commission sales promotion through Super Distributors, and payments made to Tirupati Enterprises are concerned. S. Ajith Kumar (supra) and Smt. C Sabira (supra) have held that reliance can be placed on evidence discovered during the search and seizure as also evidence which is relatable to the evidence unearthed during the search and seizure. The Settlement Commission ought to have considered the evidence placed by the Department with regard to such transactions of the assessee as they relate to the block assessment period before the Settlement Commission on the strength of the ratio laid down in the authorities noted in this paragraph.
The Department has sought to bring on record evidence relating to the transactions that the assessee had on such accounts. Such evidence relates to the block assessment period under consideration by the Settlement Commission. Such evidence have a material bearing on the issue as to the quantum of tax that the assessee is liable to pay during the assessment period under consideration before the Settlement Commission. Such evidence cannot be said to be not relevant for the purpose of assessing the tax liability of respondent No. 2.
Specified portions of the impugned order of the Settlement Commission are therefore non-speaking. One of the grounds for a successful challenge to an order of the Settlement Commission is that the impugned order suffers from the vice of breach of principles of natural justice. Since some portions of the impugned order of the Settlement Commission are non-speaking, it can be said that the present writ petition is maintainable.
Having answered the issue of maintainability in favour of the writ petitioner and having found that specific portions of the impugned order of the Settlement Commission to be uninformed with reasons, such specific portions of the impugned order are set aside.
The Settlement Commission is directed to consider the issue of tax liability of SWCL on different stages commencing from the initial renunciation of rights to the ultimate transfer of shares by SWFSL in RRITCPL to MBL. The Settlement Commission will also consider the tax liability of respondent No. 2 with regard to purchases of gift items from Amrit Engineering, commission sales promotion through Super Distributors, and payments made to Tirupati Enterprises, in accordance with law
-
2020 (6) TMI 766
Compensation for violation of the petitioner’s fundamental rights - HELD THAT:- While the petitioner had impleaded only the State/Government of NCT of Delhi as respondent in the matter, the complainant has also now been impleaded as party-respondent No.2 in the petition.
Issue notice - List on 23.07.2020.
Seeking stay of investigation and further proceedings against him in the subject FIR - HELD THAT:- It is note-worthy that the offence comprised in section 505(2) IPC is in pari materia with that comprised in section 153A IPC, inasmuch as it refers to acts and omissions that are intended to create enmity, hatred or ill-will between different religions or communities - Although, as submitted at the bar, the petitioner has already been granted interim protection in anticipatory bail proceedings by the learned Additional Sessions Judge, this court is of the prima-facie view that further investigation or proceedings pursuant to the FIR are likely to cause unwarranted and unjustified harassment to the petitioner.
Without forming an opinion on the merits of this matter, this court is persuaded to think that the filing of the complaint and registration of the FIR deserve to be considered - List on 23.07.2020.
-
2020 (6) TMI 760
Permission to transfer the monies payable to the workmen, to the Provident Fund Commissioner concerned - HELD THAT:- The issue decided in the case of CACHAR PAPER PROJECT WORKERS UNION (INTUC) VERSUS UNION OF INDIA AND ANR. [2020 (2) TMI 1532 - DELHI HIGH COURT] where it was held that respondent no. 2 is directed to pursue the matter with HDFC Bank to ascertain the status of the investments as well as to see as to how the same could be statutorily transferred to the Provident Fund Commissioner at the earliest for disbursal to the workmen.
It is hereby directed respondent Nos.4 and 5 to file the documents viz. copy of the writ petition and orders passed by the Hon’ble Delhi High Court which would demonstrate that issue raised before this Court is also involved in the lis pending before the Hon’ble Delhi High Court - List on 24.07.2020, high-up on the list.
........
|
