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Case Laws
Showing 201 to 220 of 1515 Records
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2016 (1) TMI 1322
Execution of a money decree obtained under Order 37 CPC - lifting the corporate veil - non-enforcement against the Director of the Company - decree enforced against the Managing Director - Held that:- The scope for lifting the veil will be available even at the execution stage, if a fraud was being committed to defeat the process of court and for realization of the decree, in case of a closely held company. We have already observed that the judgment debtor company in which the Managing Director and his wife are the only share holders, who hold 50% shares each and there was no other share holder. It is obvious that the Managing Director was trying to literally use the cloak of corporate entity for securing only immunity against enforcement of any liability contracted by the company. Therefore, discard the argument placed by the learned Senior Counsel appearing on behalf of the petitioner that the decree cannot be enforced against the Managing Director.
If the decree-holder was seeking for enforcement of the decree against the assets of the Managing Director, the person that could be aggrieved can be the Managing Director and not the company. Significantly, the Managing Director himself had not preferred the revision petition. The company cannot be said to be aggrieved against the decision rendered against the Managing Director. The revision is by a person who cannot even be treated as a aggrieved person. If the counsel were to contend that the liability of the company and of the Managing Director are not to be mixed up, the petitioner's logic must be extended to apply to a situation that a direction against the Director ought not to be taken as a direction against the company also. The petitioner shall hang by his own petard on the arguments propounded before me. The token of logic if the company must be treated as aggrieved, it can be only in a situation when the line drawn between the Company and the Director itself is an effaced. If the petitioner is literally pleading the brief for the Managing Director, it vindicates the contention of the decree-holder that there exists no difference between the two and the petitioner company was not different from the Managing Director of the company itself. The enforcement of the decree must, therefore, proceed forth without any further obstruction and the revision itself must be taken as incompetent.
The executing court has found if the assets of the Company are not satisfied, the assets of the Managing Director could also be proceeded with.
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2016 (1) TMI 1321
TPA - selection of comparable - selection criteria - Held that:- Assessee is into software development and support services to its parent company (AE) in USA,thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparability.
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2016 (1) TMI 1320
Condonation of delay - delay of 686 and 387 days in filing the appeals - the decision in the case of M/s VOLKSWAGEN INDIA PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE [2013 (11) TMI 298 - CESTAT MUMBAI] contested - Held that: - application for condonation of delay is dismissed - appeal dismissed.
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2016 (1) TMI 1319
Scheme of Amalgamation - Held that:- No proceedings under Section 235 to 251 of the Act are pending against any of the applicants as on date. The proposed scheme has been approved by the respective Board of Directors (BOD) of applicants. The copies of the BOD resolution of the applicants of even dated 16.11.2015 have been filed.
Given the fact that all shareholders and creditors (i.e. the unsecured creditors) of the applicants have given their consent and/or No Objection (NOC) to the proposed scheme, there shall be no requirement to convene their meetings. Scheme allowed.
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2016 (1) TMI 1318
Refund of unutilized CENVAT credit - clearance of goods for export - Rule 5 of the CCR 2004 - N/N. 30/2004-CE dtd 9.7.2004 - Held that: - the refund of the unutilised Cenvat Credit is not arising out of the export of the goods - refund not allowed - appeal dismissed - decided against appellant.
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2016 (1) TMI 1317
Monetary limit - maintainability of appeal - CBDT Circular No. 21 of 2015 dated 10.12.2015 with retrospective effect, revising the monetary limit to ₹ 10,00,000/- for not filing appeals before the Tribunal - Held that:- From para 10 of the above Circular it is palpable that the Instruction is applicable to the pending appeals also with retrospective effect and there is a clear-cut direction to the Department to withdraw or not press such appeals filed before the ITAT wherein tax effect is less than ₹ 10,00,000/-. Going by the prescription of the aforenoted Circular, we are of the view that the Revenue should have either not filed the present appeals before the Tribunal or withdrawn the same as the tax effect in these appeals is admittedly less than the prescribed limit for not filing the appeals. Ex conseqeunti we dismiss the instant appeals without going into merits of these cases.
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2016 (1) TMI 1316
Claim of deduction u/s 80P(2)(a)(i) denied - whether assessee neither a Primary Agricultural Credit Society (PACS) nor a Primary Co-Operative Agricultural and Rural development Bank (PCARDB)? - Held that:- It is not in dispute that the facts and circumstances of the case are identical to the earlier years, therefore, respectfully following the decision of the Coordinate Benches as referred above, the ground taken by the assessee is allowed to hold that the assessee is a cooperative society not a cooperative bank and is entitled for deduction u/s 80P(2)(a)(i) of the Act. - Decided in favour of assessee.
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2016 (1) TMI 1315
Scheme of amalgamation - dispensation of the requirement to convene meeting of its shareholders, secured and unsecured creditors - Held that:- A prayer has been made to dispense with the requirement of convening the meetings of the equity shareholders and the creditors (i.e. the secured and unsecured creditors) of the transferee company. The letters of consent submitted by the shareholders have been seen and examined. They are found in order. Similarly, letters of consent issued by the creditors (i.e. secured and unsecured) have been seen and are found in order.
Given the fact that all shareholders and creditors (i.e. the secured and unsecured creditors) of the transferee company have given their consent and/or No Objection (NOC) to the proposed scheme, there shall be no requirement to convene the meetings, as prayed.
The application stands allowed in the aforesaid terms.
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2016 (1) TMI 1314
Scheme of Amalgamation - Held that:- Given the fact that all shareholders and creditors (i.e. the unsecured creditors) of the transferor company have given their consent and/or No Objection (NOC) to the proposed scheme, there shall be no requirement to convene meetings qua them. Accordingly, given the fact that the transferor company is a 100% subsidiary of the transferee company, the requirement to convene meetings of shareholders and creditors can be dispensed with. It is ordered accordingly.
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2016 (1) TMI 1313
MODVAT/CENVAT credit - final product cleared without payment of duty - explosives - appellant submits that removal of goods under Chapter X Procedure is neither exempted goods nor attracts nil rate of duty. Thus, the embargo created in Rule 57 C of the Rules will have no application and taking of Modvat credit on the inputs used for manufacture of explosives removed under Chapter X is correct - Held that: - Rule 57C of the Central Excise Rules, 1944 prohibits taking of cenvat credit on the inputs used in the manufacture of final product, which are exempted from whole of duty of excise leviable thereon or are chargeable to nil rate of duty.
In the present case, explosives removed from the factory under chapter X Procedure is exempted from the whole of duty of excise leviable in terms of N/N.191/87 dated 04.08.1987. Since the said Notification exempts explosives from payment of duty, the embargo created in Rule 57C of the Central Excise Rules, 1944 will be applicable in the present case, and thus, Modvat credit on the inputs used in the manufacture of the said exempted product is not available to the manufacturer.
Appeal dismissed - decided against appellant.
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2016 (1) TMI 1312
Bogus purchases - unexplained expenditure - addition at the rate of 15% of the purchases made by the assessee from suspicious dealers whose names were listed in the website of the Sales Tax Department - not able to prove genuineness of the purchases- Held that:- Hon’ble Gujarat High Court in the case of “CIT vs. M.K. Brothers” (1985 (10) TMI 15 - GUJARAT High Court) has held that where there was nothing to indicate that the amount given by the assessee for the purchases made had come back to the assessee in any other form and where there was no evidence that the said concerns gave bogus vouchers to the assessee and even the statements made by the alleged suppliers in no way implicate the transaction with the assessee then under such circumstances it cannot be said that entries for the purchase of goods made in the books of account of the assessee were bogus and no addition in this respect can be made.
As the transactions were supported with evidences and confirmations, in such an event merely because the suppliers whose names were listed in the list of suspicious dealers as provided in the official website of Sales Tax Department, Government of Maharashtra, who were allegedly providing accommodation entries without doing actual business and have not appeared before the AO or the Ld. CIT(A), one cannot conclude that the purchases were not genuine. Even when it is not the case of the Revenue that sales turnover of the assessee has decreased or the net profit ratio is less than the earlier assessment years or the subsequent assessment years, then, in our view, making addition on assumption that the assessee would have booked a lesser profit has no justification. No merit in the action of the lower authorities in making/sustaining the impugned additions and the same are accordingly ordered to be deleted. - Decided in favour of assessee.
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2016 (1) TMI 1311
Commercial or industrial construction service - abatement of 67% under notification 15/2004 ST/notification No. 1/2006-ST - the decision in the case of Cherry Hill Interiors Ltd. Versus C.S. T-Delhi [2015 (9) TMI 161 - CESTAT NEW DELHI] contested, where it was held that benefit of the said notification (no. 12/2003-ST) can be extended only if the appellant satisfies the conditions subject to which the benefit thereunder can be granted - Held that: - the decision in the above case upheld - appeal dismissed.
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2016 (1) TMI 1310
Condonation of delay - extraordinary delay of 665 days in re-filing - Held that:- The explanation offered is the standard one regarding the practice directions issued by this Court for e-filing of the appeals. As has already been observed by this Court in several orders, the practice directions were issued after consultation with the bar and after giving sufficient time for the bar to get acquainted with the requirement of e-filing. Additionally, the Court has also provided scanning machines at the filing counter so that no difficulty is caused to the bar for switching over to the system of e-filing. In any event, the delay of 655 days on this ground is wholly unacceptable. Consequently, the Court is not persuaded to condone the extraordinary delay of 655 days in re-filing these appeals.
Transferring the control of the Trust - Held that:- The Commissioner of Income Tax (Appeals) [‘CIT (A)’] has in the order dated 26th February 2010, common to both AYs, disagreed with the Assessing Officer (‘AO’) and held that there is no evidence to show that there has been any siphoning off of funds and that by virtue of the agreement control of the Trust has been transferred to FHL. No substantial question of law.
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2016 (1) TMI 1309
Damages and interest payable by the employer in liquidation under Sections 14B and 7Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 on delayed payments of PF dues - whether such interest is provable in winding up of an insolvent company? - Held that:- In the first place, such interest is paid only in the event of there being a surplus after payment in full of all claims admitted to proof and secondly, it cannot exceed 4 per cent per annum on the admitted amount of the claim.
Creditors of a company (who would include even workmen to the extent of their dues) cannot claim in winding up interest for the period subsequent to the winding up if there is no surplus and even in the event of surplus, interest of more than 4 per cent per annum. Secured Creditors may pursue their remedy outside winding up. Likewise, workmen can enforce their charge over the property outside winding up to recover their dues. In such a case, the condition of interest being payable only in certain event and subject to a certain extent, may not apply. But if secured creditors or workmen approach the Company Court in its winding up jurisdiction for recovery of their dues, only those claims which are consistent with the provisions of the Companies Act and Companies (Court) Rules can be granted by the Company Court.
There is, thus, no merit in the challenge to the adjudication of the Official Liquidator. The Company Application is, accordingly, dismissed.
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2016 (1) TMI 1308
Cheque bounced due to insufficient funds - onus to prove that cheque was given against legally enforceable debt - Complaint in question under section 138 of Negotiable Instruments Act, 1881 - Held that:- Since the averment made in Ex.P.4 is totally contra to the evidence given by P.W.1, it is very clear that on the side of the complainant, inconsistent pleas have been raised. The defence put forth on the side of the accused is that the complainant has used to run a chit, wherein the accused has become one of its subscribers. Under the said circumstances, the cheque in question has been given to the complainant.
Considering the fact that on 13.10.2011, a sum of ₹ 40,000/- has been given to the husband of the complainant, P.W.2, by the accused and the same has been withdrawn and also considering that with regard to source of money, no consistent evidence is available on the side of the complainant, the defence put forth on the side of the accused can very well be accepted.
The trial court, without considering the payment of ₹ 40,000/- made on 13.10.2011 in favour of P.W.2 and also without considering that on the side of the complainant with regard to source of money, no consistent evidence is available, has erroneously found the accused guilty under section 138 r/w 142 of Negotiable Instruments Act, 1881. But, the first appellate court, after considering the vital infirmities found on the side of the complainant, has rightly found that the cheque in question has not been given in connection with legally enforceable debt. In view of the discussions made earlier, this Court has not found any merit in the contentions put forth on the side of the appellant/complainant and altogether, the present Criminal Appeal deserves to be dismissed.
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2016 (1) TMI 1307
Dispute between brothers - Held that:- The dispute is essentially between two brothers representing the respective shares. Hence, considering the facts and circumstances, it would be just and proper if the matter is placed before the mediation centre where the attempt should be made to resolve the dispute amicably for all time to come. Such process shall be completed within one month. If the dispute is not resolved, the matter shall be placed on judicial side for further consideration.
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2016 (1) TMI 1306
Revision u/s 263 - deduction under section 80IB - Held that:- We are dealing with a case where the revisionary powers of the Commissioner of Income Tax are being exercised. The proposition laid down by the Hon'ble High Court as to the eligibility conditions being satisfied by the assessee, has to be decided by the Assessing Officer. It was the Assessing Officer who, on whatever enquiry he made, was satisfied that the assessee is eligible to deduction under section 80IB of the Act. Now, under the garb of assuming jurisdiction under section 263 of the Act, the Commissioner of Income Tax cannot impose his own judgment over that of the Assessing Officer. Even the High Court has not held that any surrendered income, in any case, cannot be eligible for deduction under section 80IB of the Act. In this view, we do not find any error in the order of the Assessing Officer. Therefore, we set aside the order passed by the Commissioner of Income Tax under section 263 of the Act and allow the appeal of the assessee.
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2016 (1) TMI 1305
Addition on account of CLU and EDC charges - Held that:- In the light of the MOU and the letter from Town & Country Planning, Haryana, it is clear that assessee was service provider to Inscol and made available lands to the Inscol at a fixed price which includes the CLU and EDC charges. Since, the Government did not grant CLU, therefore, assessee refunded ₹ 2 Crores to Inscol and has shown as liability in the balance sheet. ₹ 40 lacs was incurred for getting CLU, therefore, ld. CIT(Appeals) was justified in holding that the amount shall have to be reduced from the total receipts received from Inscol. We, therefore, do not find any merit in this ground of appeal of the revenue. The same is accordingly, dismissed.
Addition on account of payment of Stamp Duty charges and payment for registration charges - Held that:- No merit in this ground of appeal of the revenue. The ld. DR relied upon order of the Assessing Officer. The copy of the MOU is filed on record which shows that assessee would be entitled for the amount for sale of the land at fixed price which includes the cost of the land paid to the land owners and stamp duty and registration charges. Therefore, the general proposition adopted by the Assessing Officer would not be applicable to the facts and circumstances of the case. This fact is supported by the balance sheet of Inscol which revealed that it has purchased the land inclusive of stamp duty and registration charges. Since, the transaction is inclusive of stamp duty and registration charges, therefore, ld. CIT(Appeals), on proper appreciation of facts and material on record correctly deleted both the additions.
Addition on account of advances forfeited by the land owners - Held that:- When the total sale consideration received from Inscol is treated as income in the hands of the assessee, authorities below were not justified in not allowing benefit of forfeited amount as expenditure in the hands of the assessee. Since it was liability of the assessee to bear the expenditure incurred on account of forfeited amount as advance given to the land owners, therefore, it shall have to be allowed as deduction in favour of the assessee. Further, on the same anology, when the Assessing Officer has allowed cost of land i.e. payment made to the land owners as deduction in favour of the assessee in rectification order, there was no reason to disallow the deduction of ₹ 50 lacs on this issue. We, accordingly, set aside the orders of authorities below and delete addition of ₹ 50 lacs. In the result, ground of appeal of the assessee is allowed.
Addition on account of Miscellaneous Expenses - Held that:- No merit in this ground of appeal of the assessee. Since assessee failed to produce any voucher of the expenditure on this issue and no details have been provided, therefore, Assessing Officer was justified in making the addition by reducing the cost of acquisition. No reply have been filed before ld. CIT(Appeals). Further, no vouchers or evidences have been produced before us on this issue, therefore, we are unable to interfere with the orders of the authorities below on this issue. We, accordingly, confirm the addition.
Appeal of the assessee is partly allowed.
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2016 (1) TMI 1304
Refusing to grant registration to the assessee u/s 12AA - Society had not carried out charitable activities and had also not applied its accumulated income as laid down in section 11 of the Act - Held that:- Commissioner of Income Tax could not have refused grant registration u/s 12A / 12AA of the Act to the assessee society for the reason that it had not carried out any charitable activities.
Further we find that the Ld. CIT had refused registration also for the reason that the assessee had not applied 85% of its receipts for charitable purpose nor accumulated the same for application in future years, as per the provision of section 11 of the Act.
The provision of section 12AA are very clear, as per which the only mandate given to the CIT before granting registration is to satisfy himself about the genuineness of the objects of the Trust and the activities of the Trust. Ld. CIT has only to see whether the objects of the Trust are charitable or not and the activities are genuine. The purpose being to establish the identity of the Trust to enable it to claim the benefits u/s 11 & 12 of the Act. The fulfillment of conditions of section 11 is a separate issue which is to be considered when return is filed by the assessee and examined by the AO. CIT could not have refused registration to the assessee u/s 12A for not complying with the condition of application / accumulation of income as specified in section 11 of the Act.
Further we find that the Ld. CIT has refused registration on the recommendation of the AO, without disclosing the complete contents of the report and without confronting the same to the assessee. This we hold is against the principle of natural justice. Thus we direct the Commissioner of Income Tax to grant Registration to the assessee society u/s 12AA - Decided in favour of assessee.
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2016 (1) TMI 1303
Revision u/s 263 - disallowance under section 14A - Held that:- From the perusal of Balance Sheet as on 31.3.2009 placed at Paper Book 74, we see that further investment of ₹ 194.99 lacs was made during the year in equity shares of Jai Suspension System Limited. Further, on perusal of the same Balance Sheet, we see that the total investments are ₹ 721.99 lacs while the owned funds are amounting to ₹ 12,371.46 lacs, which further proves the fact that these investments were also made out of owned funds only. In view of the above, it is true that the assessee has made investments out of owned funds and no borrowed funds were used for such investments. In such a scenario, no disallowance under section 14A of the Act is called for.
AO was fully seized of the matter, he initiated the enquiry, which was fully co-operated by the assessee. AO got satisfied and did not make any disallowance. In such a scenario, the Commissioner of Income Tax cannot impose his opinion on the decision taken by the Assessing Officer. Since it is AO’s satisfaction which matters for making such a disallowance. On the facts and circumstances of the case, the Assessing Officer did not find it appropriate to carry on any elaborate investigation. It is Assessing Officer’s prerogative to decide the extent of enquiry or investigation to be carried out by him. There is no law which directs the Assessing Officer the extent of enquiry to be made in such a case. This is, undoubtedly, not a case of lack of enquiry. Though we do not find it even a case of inadequate enquiry, even in that case, the Commissioner of Income Tax does not get the jurisdiction under section 263 - Decided in favour of assessee..
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