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Showing 1 to 20 of 1414 Records
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2021 (8) TMI 1416
Suit for declaration, recovery of possession and permanent injunction - entitlement for the decree to declare that the plaintiff is the owner in title of the property mentioned in the suit schedule of property - HELD THAT:- The Power of Attorney executed outside India has to be adjudicated in India as per the provisions of Section 18 of the Indian Stamp Act. The Power of Attorney having been failed to get adjudicated by a competent authority is not entitled to represent the plaintiff as Power holder and it is not valid. Whereas, the Court below failed to frame any issue in this regard, whether the Power of Attorney, which was marked as Ex. A.6 is valid or not. However, as rightly pointed out by the learned counsel for the first appellant/third defendant this issue can be raised before this Court and it can be answered by this Court. The Court below brushed aside the issue that if substantive justice and technicalities are fitted against each other with the technicalities go and substantive justice shall revive.
Since the Power of Attorney itself was not adjudicated before the authority concerned and as such, the Power holder has no authority to depose on behalf of the plaintiff. Section 18 of the Indian Stamp Act, mandates the adjudication before the registering authority when the Power of Attorney is executed outside India. Therefore, the Power holder cannot maintain the suit, unless the Power of Attorney is adjudicated before the registering authority.
This Appeal Suit is allowed.
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2021 (8) TMI 1415
Validity of the notifications issued under the Karnataka Industrial Area Development Board Act, 1966 - Seeking relief that provisions of 1966 Act have been impliedly repealed on commencement of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013.
Whether the provisions of Karnataka Industrial Areas Development Act, 1966 are repugnant to the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- It is well settled in law that declaration by Parliament by law to assume control over any particular industry in public interest is a sine-qua-non to clothe the Parliament with power under Entry 7 and Entry 52 of List I to legislate in respect of that industry, otherwise, industry as a general head of legislation is in exclusive sphere of State Legislative activity pursuant to Entry 24 of List II of Seventh Schedule to Constitution. The legislative power of State under Entry 24 of List II is evaded only to the extent, control is assumed by the Parliament pursuant to a declaration.
The true intent of the Act determines the validity of an Act. Real and true character of legislation is found with regard to pith and substance of the Act. The 2013 Act, which is a law relating to acquisition of land and matters incidental thereto i.e., rehabilitation is resettlement and compensation is in pith and substance the law relating to acquisition of land, has been enacted in exercise of powers under Entry 42 of List III. whereas, 1966 Act has been enacted in exercise of powers under Entry 24 of List II. The 1966 Act is an Act, which in pith and substance deals with establishment of Industrial areas in the State of Karnataka and generally to promote establishment and orderly development of industries therein and for matters incidental thereto - Merely because 1966 Act incidentally provides for acquisition of land for industries, it cannot be held that 1966 Act has been enacted under Entry 43 of List III of Seventh Schedule to the Constitution of India. Since, both the statutes have been enacted under different entries in different Lists, therefore, the question of repugnancy does not arise.
Thus, in exercise of powers under Proviso to Article 254(2), the Parliament can enact an subsequent law in respect of same matter, in respect of which State legislature has enacted a law under Article 254 (2). The 1966 Act and 2013 Act have been enacted in respect of different subject matters as stated hereinabove. Therefore, Article 254(2) does not apply to the fact situation of these cases.
Whether the Karnataka Industrial Areas Development Act, 1966 is impliedly repealed on coming into force of the Right to Fair Compensation ad Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- The provisions of 2013 Act are in addition to any other law for the time being in force. In other words, from Section 103 of 2013 Act, it can safely be inferred that parliament while enacting 2013 Act had the knowledge of existing laws and did not provide for a provision for repealing the same. Therefore, the Doctrine of implied repeal cannot be invoked in the fact situation of the case. As already noticed, 2013 Act is a law relating to acquisition under Entry 42 of List III and 1966 Act is a law relating to industries under Entry 24 of List II of the seventh schedule to the Constitution of India. Thus, 2013 Act does not deal with the prohibited field viz., industries and therefore, the doctrine of occupied field does not apply to the fact situation of the case. Similarly, 2013 Act is not a special law and therefore, it is not a case where special law is enacted in respect of field, which general law occupies. Therefore, 2013 Act not being a special law does not occupy the field in respect of subject matter in respect of which 1966 Act has been enacted - Thus, the issue is also answered in the negative and it is held that provisions of 1966 Act are not impliedly repeal on coming to force of 2013 Act.
Whether Karnataka Industrial Areas Development Act, 1966 is a special enactment vis a vis Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- The 1966 Act had been enacted with the object of establishment of industrial areas, promoting the establishment and orderly development of industries and establishment of industrial areas development board. The 1966 Act incidentally deals with acquisition of land for the purposes of development by the Board. In pith and substance the 1966 Act is the law enacted under Entry 24 of List II of the seventh schedule to the Constitution of India and is a law enacted with sole purpose of development of industrial areas, industrial estates and growth and development of industries within the State. Therefore, 1966 Act is a special law, whereas, 2013 Act, which deals with acquisition of the land is a general law. Thus, the issue is answered.
Whether the sanction given by the President on 26.05.1966 to Karnataka Act No.18 of 1966, stood lapsed or come to end on coming into force of the 2013 Act? - HELD THAT:- There is a fundamental distinction between obtaining assent of the President under Article 31A(1) of the Constitution and Article 254(2) of the Constitution of India. The assent of the President under Article 254(2) of the Constitution is required to be taken when there is a repugnancy between the law enacted by the State legislature and the Parliament. In the instant case, the 1966 Act as well as 2013 Act have been enacted under Entry 24 of List II and Entry 42 of List III of Seventh Schedule to the Constitution of India. A part of the state legislation affects property rights, therefore the assent of President of India is taken under Article 31A(1) of the Constitution of India and no assent was required to be taken under Article 254(2) of the Constitution as there is no repugnancy between the 1966 Act and 2013 Act. Even otherwise merely because assent of the President has been taken, the presumption with regard to repugnancy does not arise as the burden to prove that there has been repeal by implication lies on the party asserting the same which has not been discharged in this case - the issue is also answered in the negative and it is held that assent granted by the President on 26.05.1996 to 1966 Act did not lapse on coming into force of 2013 Act.
What is the effect of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Act, 2019 (Act No.16 of 2019) on Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013? - HELD THAT:- The provisions of 2013 Act have been amended by the State Legislature by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Act, 2019, the aforesaid amendment act had received the assent of the President on 16.07.2019. By the aforesaid Amendment Act, several provisions of 2013 Act have been amended, however, the amendments which are relevant for decision of the controversy involved in these appeals are, Amendment of Section 2, insertion of Sections 10A, 23A, 30A and 31A.
The KIADB vide its resolution dated 27.08.2016 has resolved to determine the amount of compensation in respect of the land which may be acquired under 1966 Act as per Schedule I of 2013 Act. Therefore, the grievance of the owners of the land in so far as it pertains to payment of lesser compensation under 1966 Act does not survive. It has been urged on behalf of the owners of the land that the provisions of the Karnataka Amendment Act 2019 are arbitrary and are opposed to all canons of law and voilative of Article 21. However, except for making such a statement no material has been brought on record to show as to how the provisions of Amendment Act are either arbitrary, voilative of Article 21 of the Constitution of India or unconstitutional. The provisions of the Amendment Act cannot also be said to be in violation of Section 108 of 2013 Act which provides an option to the affected families to avail better compensation an rehabilitation and resettlement, if state law or policy so provides. Thus, it is held that provisions of 2013 Act have been validly amended by the State legislature - the issue is thus answered.
Whether provisions of Section 24(2) of 2013 Act apply to proceeding under 1966 Act? - HELD THAT:- A division bench of this court in ANANTHASWAMY VERSUS THE STATE OF KARNATAKA AND ORS. [2021 (3) TMI 1448 - KARNATAKA HIGH COURT] by placing reliance on decision of Supreme Court in ANASUYA BAI supra has also held that Section 24(2) of 2013 Act does not apply to proceeding under Section 1966 Act. Thus, the aforesaid issue is also answered in the negative and it is held that Section 24(2) does not apply to proceeding under 1966 Act.
The finding recorded by the learned Single Judge that since, the State Government has adopted the National Manufacturing Policy, and therefore, the provisions of 1966 Act would be redundant unless al the provisions of 2013 Act are introduced to safeguard the interest of the land owners cannot be sustained. Similarly, the finding recorded by the learned Single Judge that since, acquisition of land for industrial and manufacturing purposes is now declared a primary public purpose under 2013 Act, the 1966 Act which is silent with regard to feasibility of acquisition of particular land for industrial purposes should conform to provisions of 2013 Act, otherwise must perish is sans substance. Similarly, the finding that State Government cannot be permitted to over write provisions of 2013 Act by resorting to unbridled powers under 1966 Act and that entire field of establishment of industrial areas is covered by 2013 Act, also does not deserve acceptance.
Let the writ petitions be listed before learned single judge to examine the validity of the proceedings initiated under the 1966 Act - appeal allowed.
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2021 (8) TMI 1414
Depreciation attributable to capitalization of exchange rate fluctuations loss in respect of indigenous assets purchased in India - fixed assets as acquired in India out of foreign currency loan - HELD THAT:- The facts in the present Assessment Year i.e. 2012-13 [2021 (6) TMI 609 - ITAT DELHI] are identical and no distinguishing facts were pointed out by the Ld. DR. The assessee has attributed the liability in the present Assessment Year to the fixed assets which were acquired in India out of foreign currency loan.
Since the fixed asset was acquired by utilizing foreign currency loan and on account of currency fluctuation, the loan liability was added to the fixed assets. Thus, the assessee is entitled to depreciation on exchange loss. Therefore, we direct the AO to allow the depreciation attributable to capitalization of exchange rate fluctuation loss. Thus, the appeal of the assessee is allowed.
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2021 (8) TMI 1413
Seeking transfer of Company Petition to the NCLT - transfer sought on the basis of the 5th proviso to section 434 (1) (c) of the Companies Act, 2013 - HELD THAT:- The reason for inserting the the 5th proviso appears to be quite clear. Initially, so far as the transfer of winding up proceedings were concerned, the Code began tentatively by leaving proceedings relating to winding up of companies to be transferred to the NCLT at a stage as may be prescribed by the Central Government. This was stipulated by the Transfer Rules, 2016 which came into force w. e. f. 15th December, 2016. Rules 5 and 6 referred to three types of proceedings. Only those proceedings which were at the stage of pre-service of notice of the winding up Petition stood compulsorily transferred to the NCLT. The result thereof was that post-notice and pre-admission of winding up Petitions, parallel proceedings would continue under both Statutes leading to a most unsatisfactory state of affairs. It is for this reason that the 5th proviso to Section 434 (1) (c) was introduced on the Statute book. After the insertion of the 5th proviso, even post admission of a winding up Petition and even after an order of the Court appointing an Official Liquidator to take over the assets of the Company sought to be wound up, the Company Court has the discretion to transfer such Petition to the NCLT. The only question that would arise is as to how this discretion is to be exercised in the facts and circumstances of a given case.
As far as the exercise of discretion under the 5th proviso to section 434(1)(c) is concerned, it is found that this issue is no longer res integra. The Supreme Court in the case of Action Ispat and Power [2020 (12) TMI 535 - SUPREME COURT] has clearly laid down as to how the discretion may be exercised - the Hon’ble Supreme Court had clearly laid down that even after a Petition for winding up a company is admitted and even after the assets of the company sought to be wound up become custodia-legis, so long as no actual sales of the immovable or movable properties of the company have taken place, or nothing irreversible has been done which would warrant the Company Court to stay its hands on a transfer application made to it by a creditor or any party to the proceedings, the Company Petition should be transferred. It is only in cases where the winding up proceedings have reached an irreversible stage, and hence making it impossible to set the clock back, that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to be decided in accordance with the provisions of the IBC.
Applying the test laid down by the Supreme Court in the aforesaid decisions, now it is required to be seen whether any irreversible event has taken place which would warrant to stay hands and not transfer the above Company Petition to the NCLT - Be that as it may, and dehors the conduct of the Applicant – Company, it is to be decided whether or not the above Company Petition should be transferred to the NCLT in order to give the Applicant – Company one last opportunity to be revived.
Petitioner cannot be agreed upon that simply because the Applicant - Company entered into certain transactions after the presentation of the winding up petition, the same results in any irreversible event. It is not as if that those transactions cannot be assailed under the provisions of the IBC before the NCLT.
The Supreme Court in the decision of Action Ispat as well as in A. Navinchandra Steels [2021 (3) TMI 38 - SUPREME COURT] have clearly spelt out that looking at object of the IBC and it being a beneficial legislation to ensure revival of the corporate debtor rather than its death, transfer of a winding up Petition to the NCLT should be the norm and only in very limited circumstances (as set out in the aforesaid decisions), should the Company Court decline to transfer the winding up Petition. This being the situation and finding that an adequate remedy is available under the IBC to assail the transactions which are enumerated above by petitioner, these contentions would not in in any way hinder this Court from transferring the above Company Petition to the NCLT.
Interim Application is allowed and it is ordered that the above Company Petition is transferred to the NCLT, Mumbai. The NCLT, Mumbai is directed to treat the above Petition as an application for initiation of the Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016. In order to enable the NCLT, Mumbai to initiate the Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016, the order of admission of the above Petition is recalled/revoked - application disposed off.
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2021 (8) TMI 1412
Time limitation - Misbranding - Accused have approached the High Court seeking quashing of the complaint mainly on the ground that the complaint was ex facie barred by limitation and procedure prescribed Under Section 24 was not followed - HELD THAT:- In view of the undisputed fact that after drawing the sample from the dealer on 10.02.2011 report of analysis was received from the Insecticide Testing Laboratory at Ludhiana on 14.03.2011, the complaint filed is barred by limitation. It is not in dispute that report from Insecticide Testing Laboratory, Ludhiana was received by the Inspector on 14.03.2011. Section 29 of the Act deals with the 'offences and punishment'. The Appellants are sought to be prosecuted on the ground of misbranding of the insecticide, i.e., Trizophos 40% E.C. It is the allegation in the complaint that upon analysis of the sample, same was found to contain active ingredient to the extent of 34.70% only as against the labelled declaration of 40%. Thus, it is a case of 'misbranding' within the meaning of Section 3(k)(i) of the Act and selling of such misbranded item is in violation of Sections 17, 18, and 33 punishable Under Section 29 of the Act.
In the present case, it is not in dispute, the complainant-2nd Respondent has received the report of analysis on 14.03.2011 from the Insecticide Testing Laboratory, Ludhiana and the complaint was lodged on 25.03.2014 which is beyond a period of three years from 14.03.2011. The only submission of the learned Counsel for the State is that further report from the Central Insecticide Testing Laboratory was received on 09.12.2011 which is the conclusive evidence of the facts, as such, the complaint is within the period of limitation. Such submission made by learned Counsel for the State is not convincing - the complaint filed is barred by limitation and allowing the proceedings to go on, on such complaint, which is ex facie barred by limitation is nothing but amounts to abuse of process of law. Though the learned Counsel has also raised other grounds in support of quashing, as it is persuading to accept his submission that complaint filed is barred by limitation, it is not necessary to deal with such other grounds raised.
The impugned order passed by the High Court of Punjab & Haryana at Chandigarh is set aside - appeal allowed.
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2021 (8) TMI 1411
Appeal against appropriate party - Revised appeal substituting the name of the parties or grounds of appeal - assessee originally had filed appeal against the ITO, Ward-11(4), Kolkata passed u/s 144 r.w.s 263 and assessee subsequently filed revised form of appeal whereby the name of the respondent has been changed as PCIT-4, Kolkata - DR pointed out that the assessee even revised Form No.36 through grounds of appeal has only assailed the assessment order and the assessee by way of revised appeal form cannot change the nature of the appeal in toto by not only substituting the name of the parties but also grounds of appeal - HELD THAT:- Appeal of the assessee is dismissed as withdrawn with liberty to file afresh against the appropriate party. The time consumed in prosecuting the present appeal i.e. from the date of filing of the present appeal till receiving of the copy of this order will not be taken into consideration for the purpose of limitation period. However, the assessee will be liable to explain about the delay period, if any, in filing the appeal minus time period consumed in prosecuting the present appeal as observed above. Appeal of the assessee is dismissed as withdrawn.
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2021 (8) TMI 1410
Maintainability of application - initiation of CIRP - mismatch between the date of default and date when OTS entered - date of default if any could be only after the acceptance of this OTS, which is not satisfied in the present case - NCLAT held that there are no substance in the appeal - HELD THAT:- No ground is made out for our interference with the impugned order(s) passed by the National Company Law Appellate Tribunal, Principal Bench, New Delhi.
The appeals are dismissed, accordingly.
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2021 (8) TMI 1409
Condonation of delay in filing the revocation application - requirement to comply with all the requirements of paying the taxes due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
The writ petition is disposed off.
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2021 (8) TMI 1408
Certificate u/s 197(1) of the Act at Nil rate - petitioner’s Form 13 application for Nil/lower withholding tax certificate was rejected - As now in the writ petition the petitioner has clarified that the provision creating slow and ageing inventory in relation to the relevant AY has not been claimed as a deduction in the said year, the matter can be sent back to the AO for re-examination - HELD THAT:- Though in rejoinder, learned senior counsel for the petitioner disputes the contention advanced by learned counsel for the respondent, yet he has no objection to the matter being remanded back to the AO.
Accordingly, in view of the statement made by learned counsel for the respondent, the impugned order under Section 197(1) of the Act for the Assessment Year 202122 is set aside and the matter is remanded back to the AO to determine the said application afresh in accordance with law. Respondent no. 2 shall pass a reasoned order in accordance with law after giving an opportunity of hearing to the authorised representative of the petitioner within four weeks.
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2021 (8) TMI 1407
Reopening of assessment against non existent company - notice issued to company amalgamated - HELD THAT:- As decided in TAKSHASHILA REALTIES PVT LTD VERSUS DY COMMISSIONER OF INCOME TAX CIRCLE 4 (1) (2) [2016 (12) TMI 872 - GUJARAT HIGH COURT] as per the scheme of amalgamation sanctioned by the Court, the transferor Company shall not be in existence, and therefore, the impugned notices against the transferor Company (non-existent Company) shall not be permissible.
Writ petition is allowed and the impugned notice is quashed solely on the ground that the impugned notice was issued in the name of non- existing company in spite of revenue having notice and knowledge of non-existence of such Company. Decided in favour of assessee.
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2021 (8) TMI 1406
Grant of bail - issue of forged cheques - entire case is based on documentary evidence which have already been seized by the police, therefore, there is no question of tempering with any evidence - HELD THAT:- Prima facie, there are glaring irregularities and illegalities in the purchase of the land belonging to the society by the present applicant in a criminal conspiracy with unauthorised persons. It is not in dispute that the entire sale-consideration was not paid at the time of execution of the sale-deed , eve till date and thereafter the applicant has mortgaged the land in question and took the loan of Rs.7.5 Crores and the same has also not been repaid.
In the city of Indore, the local administration is trying hard to get the lands released from the hands of land mafias. Several hardcore land mafias have been arrested by the police by registering FIRs against them. The administration is making all efforts for the release of the lands to innocent purchasers and members who have invested their hard-earned money with a dream to construct a house . In the present case, if the applicant is released on bail, it will give setback to the efforts which are being done by the Government as well as the local administration for release of the land in favour of members of the society.
This is not a fit case for grant of bail to the applicant at this stage - bail application dismissed.
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2021 (8) TMI 1405
Accrual of income in India - sale of Novell Software Products as 'Royalties' on substantive basis both under the Income-tax Act, 1961 as well as the India-USA DTAA - PE in India or not? - AO held that Novell Software Development India Private Limited ('NSDIPL') is a Dependent Agency Permanent Establishment ('DAPE') of Appellant in India - whether there is "Principal to Principal" arrangement between Novell Inc. and NSDIPL under the Distribution Agreement - HELD THAT:- So far as taxability of software sale by the US entity to Indian entities is concerned learned representatives fairly agree that the said issue is now covered by Hon’ble Supreme Court’s judgement in the case of Engineering Analysis Centre of Excellence (P.) Ltd[2021 (3) TMI 138 - SUPREME COURT]
Existence of the dependent agency permanent establishment [DAPE] or not? - In the light of Hon'ble jurisdictional High Court's judgment in the case of Set Satellite (2008 (8) TMI 96 - BOMBAY HIGH COURT), so far as profit attribution of a DAPE is concerned, the legal position is that as long as an agent is paid an arm's length remuneration for the services rendered, nothing survives for taxation in the hands of the dependent agency permanent establishment. Viewed thus, the existence of a dependent agency permanent establishment is wholly tax neutral.
As transactions in question were at arm’s length price, no taxability survives in the hands of the assessee. Once basic taxability under the DAPE itself comes to an end, all other issues raised in the appeal are rendered academic and infructuous.
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2021 (8) TMI 1404
Deduction u/s 43B - issue of debentures in lieu of interest accrued and payable to financial institutions - AO rejected the Appellant’s contention by holding that the issuance of debentures was not as per the original terms and conditions on which the loans were granted, and that interest was payable, holding that a subsequent change in the terms of the agreement, as they then stood, would be contrary to Section 43B(d), and would render such amount ineligible for deduction - CIT(A) allowed assessee appeal - question recorded by HC - “Whether the funding of the interest amount by way of a term loan amounts to actual payment as contemplated by Section 43B of the Income-tax Act, 1961?”
HELD THAT:- The object of Section 43B, as originally enacted, is to allow certain deductions only on actual payment. This is made clear by the non-obstante clause contained in the beginning of the provision, coupled with the deduction being allowed irrespective of the previous years in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by it. In short, a mercantile system of accounting cannot be looked at when a deduction is claimed under this Section, making it clear that incurring of liability cannot allow for a deduction, but only “actual payment”, as contrasted with incurring of a liability, can allow for a deduction. Interestingly, the ‘sum payable’ referred to in Section 43B(d), with which we are concerned, does not refer to the mode of payment, unlike Proviso 2 to the said Section, which was omitted by the Finance Act, 2003 w.e.f. 1st April, 2004.
This being the case, it is important to advert to the facts found in the present case. Both the CIT and the ITAT found, as a matter of fact, that as per a rehabilitation plan agreed to between the lender and the borrower, debentures were accepted by the financial institution in discharge of the debt on account of outstanding interest. This is also clear from the expression “in lieu of” used in the judgment of the learned CIT. That this is so is clear not only from the accounts produced by the assessee, but equally clear from the fact that in the assessment of ICICI Bank, for the assessment year in question, the accounts of the bank reflect the amount received by way of debentures as its business income. This being the fact-situation in the present case, it is clear that interest was “actually paid” by means of issuance of debentures, which extinguished the liability to pay interest.
Explanation 3C, which was introduced for the “removal of doubts”, only made it clear that interest that remained unpaid and has been converted into a loan or borrowing shall not be deemed to have been actually paid. As has been seen by us hereinabove, particularly with regard to the Circular explaining Explanation 3C, at the heart of the introduction of Explanation 3C is misuse of the provisions of Section 43B by not actually paying interest, but converting such interest into a fresh loan.
On the facts found in the present case, the issue of debentures by the assessee was, under a rehabilitation plan, to extinguish the liability of interest altogether. No misuse of the provision of Section 43B was found as a matter of fact by either the CIT or the ITAT. Explanation 3C, which was meant to plug a loophole, cannot therefore be brought to the aid of Revenue on the facts of this case. Indeed, if there be any ambiguity in the retrospectively added Explanation 3C, at least three well established canons of interpretation come to the rescue of the assessee in this case. First, since Explanation 3C was added in 2006 with the object of plugging a loophole – i.e. misusing Section 43B by not actually paying interest but converting interest into a fresh loan, bona fide transactions of actual payments are not meant to be affected.
In similar circumstances, in K.P. Varghese v. ITO, (1981 (9) TMI 1 - SUPREME COURT) this Court construed Section 52 of the Income Tax Act as applying only to cases where ‘understatement’ is be found – an ‘understatement’ is not to be found in the literal language of Section 52, but was introduced by this Court to streamline the provision in the light of the object sought to be achieved by the said provision.
Second, a retrospective provision in a tax act which is “for the removal of doubts” cannot be presumed to be retrospective, even where such language is used, if it alters or changes the law as it earlier stood. This being the case, Explanation 3C is clarificatory – it explains Section 43B(d) as it originally stood and does not purport to add a new condition retrospectively, as has wrongly been held by the High Court.
The question decided in this case is far removed from the question to be decided in the facts of the present case and has no application to these facts whatsoever. The question in the present case does not depend upon what can, in law, be stated to be a debenture and/or whether it is convertible or non-convertible or payable immediately or in the future. The question in the present case is only whether interest can be said to have been actually paid by the mode of issuing debentures.
The impugned judgments of the High Court are set aside and the judgment and order of the ITAT is restored. These appeals are allowed in the aforesaid terms.
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2021 (8) TMI 1403
Benefit of enhanced superannuation age of 65 years (raised from 60 years), just like the allopathic doctors - HELD THAT:- The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D. 14019/4/2016-E-I (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned Respondent-doctors, in the present appeals. All consequences must follow from this conclusion.
The Appellant's actions in not paying the Respondent doctors their due salary and benefits, while their counterparts in CHS system received salary and benefits in full, must be seen as discriminatory. Hence, there are no hesitation in holding that the Respondent-doctors are entitled to their full salary arrears and the same is ordered to be disbursed, within 8 weeks from today. Belated payment beyond the stipulated period will carry interest, at the rate of 6% from the date of this order until the date of payment.
Appeal disposed off.
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2021 (8) TMI 1402
Failure to follow procedure contemplated under Section 24(4) of the Act and Section 202 of the Code of Criminal Procedure - Magistrate has taken cognizance without conducting inquiry and ordering investigation - sample of insecticides was misbranded as the same was found to contain 10.09% of active ingredient only as against 15%, as labelled on the packet - HELD THAT:- Section 33 of the Act deals with 'offences by companies'. A reading of Section 33(1) of the Act, makes it clear that whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or was responsible to the company for the conduct of the business of, the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In the case on hand, it is not in dispute that on behalf of the 1st Appellant - Company, 2nd Appellant - Managing Director has furnished an undertaking dated 22.01.2013, indicating that Shri Madhukar R. Gite, Manager of the Company, has been nominated in the resolution passed by the Company on 28.12.2012 to be in charge of and responsible to the said Company, to maintain the quality of the pesticides manufactured by the said Company and he was authorized to exercise all such powers and to take all such steps, as may be necessary or expedient to prevent the commission of any offence under the Act. Filing of such undertaking with the Respondent is not disputed.
Further, from the averments in the counter affidavit filed on behalf of Respondents 1 & 2 and other material placed on record, no case is made out to quash the proceedings at this stage, by accepting the plea of the Appellants that the procedure contemplated Under Section 24(4) of the Act and Section 202 of the Code of Criminal Procedure, is not followed.
With regard to the procedure Under Section 24(4) of the Act, after the 1st Appellant - Company has deposited necessary Demand Draft for sending 2nd sample to the Central Insecticide Testing Laboratory, steps were taken promptly and report was also sent by the Central Insecticide Testing Laboratory within the prescribed period of 30 days.
The Code of Criminal Procedure itself provides for exemption from examination of such witnesses, when the complaint is filed by a public servant. In the present case, 2nd Respondent/Public Servant, in exercise of powers under provisions of the Insecticides Act, 1968, has filed complaint, enclosing several documents including reports of the Government Laboratories, it is always open for the Magistrate to issue process on such complaint which is supported by documents. In any event, there are no merit in the submissions of the learned Counsel that proceedings are to be quashed only on the ground that, the Magistrate has taken cognizance without conducting inquiry and ordering investigation. In absence of showing any prejudice caused to the Appellant at this stage, the same is no ground to quash the proceedings in exercise of power Under Section 482 of the Code of Criminal Procedure.
This Criminal Appeal is partly allowed, so far as the Appellant No. 2 - Managing Director is concerned and the impugned Order of the High Court dated 12.05.2020, passed by the High Court of Punjab & Haryana at Chandigarh in CRM-M-12082-2016 (O & M), is set aside. Consequently, Complaint No. 313 dated 19.08.2015, filed by the 2nd Respondent - Quality Control Inspector, Bhikhiwind District Tarn Taran, Punjab, pending before the learned Judicial Magistrate First Class, Patti stands quashed qua the Appellant No. 2 namely Mr. Pramod N. Karlekar/Accused No. 4.
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2021 (8) TMI 1401
Approval of the Resolution Plan - impugned order is assailed on the ground that the Adjudicating Authority has failed to consider objections raised by the Appellant to the ‘Resolution Plan’ submitted by ‘APSEZ’ as also the objections raised by the Appellant qua the rejection of settlement proposal submitted by ‘Balaji Infra Projects Limited’ - It was held by NCLAT that All objections raised qua the action of the ‘Resolution Professional’ during Corporate Insolvency Resolution Process, approval of ‘Resolution Plan’ of ‘APSEZ’ by the Committee of Creditors and its subsequent approval by the Adjudicating Authority being unfounded are hereby repelled.
HELD THAT:- There are no reason to interfere - appeal dismissed.
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2021 (8) TMI 1400
Unsuccessful resolution applicant - Chellanged the approval of resolution plan of others - Failure to implement the Resolution Plan - grievance raised by the Appellant with regard to ineligibility of Respondent No. 3 were also considered by the CoC with regard to the ‘Allied Strips Limited’ which was pointed out and CoC still took a conscious decision to accept the Resolution Plan of Respondent No. 3 - HELD THAT:- It is pertinent to mention that delay in implementation of Resolution Plan cannot be considered the same as failure in implementing the Plan. The ineligibility as specified under Regulation 38 (1B) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016 establishes the ineligibility in clear terms by stating that "the Resolution Applicant or any of its related parties has failed to implement or contributed to the failure of implementation of any other Resolution Plan approved by the Adjudicating Authority at any time in the past." - Therefore, delay in implementation of the Resolution Plan cannot be considered as a ground for ineligibility of the Resolution Applicant.
It is clear that the COC deliberated Respondent No. 3's eligibility and thereafter, considering the statement of Respondent No. 3, took a conscious commercial decision in accepting its Resolution Plan. Moreover, judicial notice may be taken of the prevailing situation the entire world is facing on account of the Covid 19 pandemic. Therefore, if there is some delay in implementing the Plan, it cannot be considered a failure in implementing the Resolution Plan, thereby making the Resolution Applicant ineligible for submission of the Resolution Plan under Regulation 38 (1B) of the CIRP Regulations.
In the instant case, the COC has approved the Resolution Plan, pending adjudication before the Adjudicating Authority u/s 31 of the Insolvency and Bankruptcy Code 2016. After approval of the Resolution Plan by the COC Affidavit is filed on behalf of the COC wherein it is stated that since the Corporate Insolvency Resolution Process was scheduled to be completed on 19th February 2020, the COC did not have sufficient opportunity to consider the specific details of the revised Resolution Plan submitted by the Appellant - it is clear that in case of ineligibility of Resolution Applicant under proviso to Clause (c) of Section 29 A the Insolvency and Bankruptcy Code, the COC is entitled to grant 30 days to make payment of overdue amounts. Still, these 30 days shall not be construed as an extension of the period for the proviso to Sub-section 3 of Section 12 for completion of CIRP.
Since the statutory time limit for completion of the Corporate Insolvency Resolution Process has already expired, the COC cannot seek additional time to complete the Corporate Insolvency Resolution Process and review its decision after approval of the Resolution Plan. The position of law is clear that once the Resolution Plan has been approved by COC and it is pending adjudication u/s Section 31 before the Adjudicating Authority, the COC does not contain any power to review its earlier decision to approve the Resolution Plan.
It is made clear that that the Appellant's Plan was conditional and is rejected by COC. Therefore, the Appellant has no right to insist that its Plan should be accepted. Under its commercial wisdom, COC has accepted the Resolution Plan of Respondent No. 3 with open eyes regarding developments in the matter of Allied Strips. The decision of COC in approving the Resolution Plan was its commercial decision which needs no interference. Therefore, the Appellant has no locus to question the commercial decision.
The Appeal is not maintainable. Once COC accepts the Resolution Plan, the Adjudicating Authority may consider if it is to be accepted or rejected. The Appellant has no right to stall the proceeding for the approval of the Resolution Plan by challenging commercial decisions of the COC - Appeal dismissed.
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2021 (8) TMI 1399
Validity of faceless assessment passed u/s 144B - Denial of natural justice - Petitioner submits that the impugned assessment order has been passed without observing the principles of natural justice, inasmuch as, due to launch of new income tax e-filing portal, the existing portal was discontinued from 01st June, 2021 and the new income tax e-filing portal did not work after the launch and, therefore, compliance till 07th June, 2021 could not be made and the impugned assessment order was passed on 11th June, 2021 - On 26th July, 2021, this Court had issued notice to the Respondents who sought time to obtain instructions, and till today - HELD THAT:- We are of the view that the Respondents have had more than sufficient time to obtain instructions. Consequently, the request for adjournment of respondents is declined.
Having perused the paperbook, we are of the view that the impugned assessment order has been passed without providing adequate opportunity to submit reply in response to the show cause-cum-draft assessment order dated 23rd May, 2021.
We also feel that as the timeframe set out in the show cause notice dated 23rd May, 2021 was extremely narrow and since the e-filing portal was allegedly dysfunctional, there are good enough reasons to set aside the impugned assessment order, with liberty to the Assessing Officer to continue the assessment proceedings from the stage at which they were positioned when the show cause notice dated 23rd May, 2021 was issued.
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2021 (8) TMI 1398
Non-cancellation of will - rejection of the Probate case by the Trial Court - whether Rajendra Singh had actually revoked the Will in favour of Sarjug Singh and his physical and mental capacity to execute the Cancellation Deed (Ext. C) and also whether thumb impression of Rajendra Singh on the registered document dated 02.02.1963 is genuine or not?
HELD THAT:- The High Court in our assessment, failed to give due weightage to the evidence of OW-3, OW-4 and OW-5 who led evidence on genuineness of the cancellation deed. Instead, erroneous presumption was drawn on impersonation and incapability of the testator, to visit the office of the Sub-Registrar to register the Cancellation Deed - the probate applicant never opposed the acceptance and marking of the concerned cancellation deed, in the trial Court. Therefore, in the face of the Expert's Report (Ext. B), when the Deed of Cancellation (Ext. C) were marked without any objection before the trial Court, those cannot be treated as inadmissible and should have been accepted as genuine, particularly in view of the testimony of OW-3, OW-4 and OW-5, who stood firm on execution of the registered revocation deed by the testator, Rajendra Singh.
The key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. Therefore, adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction. Therefore, genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression. This is more so in this case since the testator's thumb impression was proved to be genuine by the expert.
The plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document - the High Court had erred by ignoring the material evidence in disbelieving the Cancellation Deed and on that score declaring that the applicant is entitled to grant of probate of the Will (Ext. 2). Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of Defendant to produce original deed of cancellation.
The Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It is also seen that the evidences of the relevant OWs have withstood the scrutiny of the Trial Court and those have remained unshaken and should be trusted. Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, we find merit in the case of the objectors.
The impugned order of High Court set aside - appeal allowed.
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2021 (8) TMI 1397
Violations of disclosure requirements in terms of SAST Regulations and SEBI ‘PIT Regulations 1992’ read with SEBI ‘PIT Regulations 2015’ - SEBI found irregularities in the scrip of the Company - off market transactions - Manner of creating pledge or hypothecation - appellant submitted that the transfer of the shares to the appellant later on would not amount to purchase of shares - HELD THAT:- As per Section 10 of the Depositories Act, 1996 a person in whose name the shares are recorded with the depository is deemed to be the registered owner for the purposes of effecting transfer of ownership of security on behalf of a beneficial owner. Tribunal considered the provisions of Section 150 of the Companies Act which requires every company to keep a register of its members and enter therein their particulars of shares held by them, as referred to in the section. Further survey of various relevant provisions was taken.
Ultimately, it was held that the submissions that retransfer of the shares by the Bank to the appellant therein would not amount to acquisition of the shares cannot be accepted. It was held that such arguments would mean circumventing Takeover Code and Regulation 58 of the Depository Regulations, which cannot be permitted. It was further found that when the law prescribes course for creation of a pledge of shares, the parties cannot agree to create a pledge contrary to the SAST Regulations. Considering all these facts the contention of the appellants was negativated and the appeal against the order of the respondent SEBI was dismissed.
Taking into consideration all these factors and the law as crystallized, in our view, the submissions of the appellants cannot be accepted. It is an admitted fact that the shares were transferred to the concerned noticees. Thereafter the shares were again transferred in the demat accounts of the appellants in the similar fashion. Appellants have thus violated the provisions of the regulations detailed above. The order of the AO, therefore cannot be faulted.
As regards the issue of delay in launching the proceedings, we find that no plea is taken that the delay has caused any prejudice. Delay simpliciter, if any would not lead us to quash the proceedings initiated by SEBI.
As regards the quantum of penalty, the learned AO has imposed the penalty against the Appellants of Rs. 10 lakh under Section 15H of SEBI Act jointly and severally, under Section 23H of SCRA of Rs. 10 lakh each and Rs. 10 lakh only on the Appellant no. 1 under Section 15A(b) of the SEBI Act. Considering the fact that the violations were made on several occasions as detailed in the impugned order, we do not find any reason to interfere in the impugned order in this regard also.
The appeal is therefore dismissed.
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