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Showing 41 to 60 of 1346 Records
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2021 (1) TMI 1310
Constitutionality of provisions of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 - HELD THAT:- The issue is no longer res integra. The Hon'ble Supreme Court in tJINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] has settled the issue. Therefore, nothing survives fur further consideration in this writ petition.
Petition closed.
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2021 (1) TMI 1309
The Supreme Court of India issued an order to issue notice on the application for condonation of delay and on the Special Leave Petition. Tagged with Diary No. 27027/2020.
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2021 (1) TMI 1308
Failure of the Appellant-M/s. Esjayee Impex Pvt. Ltd. to repay a Loan to Canara Bank and the consequent proceedings initiated by the Bank under the SARFAESI Act, 2002 - handing over possession of Secured Assets to Canara Bank in respect of an immovable property - HELD THAT:- The aspect of possession by the Auction Purchaser was already taken care of by our Order, dated 11.9.2020 recording that possession was handed over to the Auction Purchaser in pursuance to a Letter, dated 6.11.2019 but the backside portion was being used to store goods of the original Owners preventing full enjoyment of the property - It is also noticed that in case the Auction Purchaser was to continue to enjoy the property and the Petitioner(s) defaulted, one week's time would be granted to remove what has been stored in the back portion. Thus, the Bank will ensure that those Goods are removed within one week from today to facilitate unhindered enjoyment of the possession by the Auction Purchaser.
Learned Counsel for the Bank agreed that the Sale Certificate has to be further validated and assured that the needful will be done within two weeks. However, a submission was made that the Sale Certificate was then to be handed over to the Registering Authority for registration and payment of Stamp Duty.
The mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchaser with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act - SLP dismissed.
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2021 (1) TMI 1307
The Appellate Tribunal in New Delhi dropped the Contempt Case as the direction to hand over records by the Resolution Professional was complied with. The Appellant is approaching the IBBI for action against the IRP.
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2021 (1) TMI 1306
Implementation of Plastic Waste Management Rules, 2016 (PWM Rules), including Extended Producer Responsibility (EPR) in terms of Rule 9(4) of the Rules - HELD THAT:- Regretfully, steps taken by the MoEF for finalizing EPR regime are too slow. We note that the PWM Rules were framed in the year 2016 in place of 2011 Rules. There is no justification for long delay in finalisation of EPR models even after more than four years of the publication of the Rules. The same may now be finalised at the earliest, preferably within three months from today.
The State level authorities also need to take necessary effective steps for enforcement, including coercive measures. EC and penal action regime proposed by the CPCB may be duly implemented by the CPCB, State PCBs/PCCs, State Level Monitoring Committees and all other concerned authorities. District Environment Committees constituted in pursuance of order of this Tribunal in Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors. may also monitor compliance of PWM Rules and give their respective reports to the State Level Committees.
The CPCB may continue to coordinate with the State Level Monitoring Committees, the State PCBs/PCCs or any other authorities with reference to the steps taken by the State Level Monitoring Committees in coordinating with the concerned Local Bodies, Gram Panchayats, Waste Generators, Producers, Importers, Brand Owners, Recyclers, Manufactures, Retailers and Street Vendors in accordance with the rules. Whenever, necessary CPCB may issue further directions from time to time in the light of experiences gained considering different suggestions and viewpoints, including the suggestions of the Oversight Committee for State of UP.
The application is disposed of.
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2021 (1) TMI 1305
Imposition of anti-dumping duty on the import of the good Flexible Slabstock Polyol from the Kingdom of Saudi Arabia and the United Arab Emirates - methodology used for arriving at the figures of normal value, export price and landed value, was not informed to the petitioner - insufficient time provided by the Designated Authority to file comments under disclosure statement.
Two petitions filed now - in both the petitions the challenge is to the final findings dated 01.09.2020 of the Designated Authority, where it was concluded that that the product under consideration has been exported to India from the subject countries below its normal value, thus resulting in dumping.
HELD THAT:- Having surveyed the statutory framework as above, we may now advert to the impugned final findings dated 01.09.2020. In the introductory portion of the final findings, it is mentioned that Manali Petrochemicals had filed an application before the Designated Authority under the Act read with the Anti-dumping Duty Rules for imposition of anti-dumping duty on the imports of Flexible Slabstock Polyol from the Kingdom of Saudi Arabia and the United Arab Emirates. On the basis of sufficient prima facie evidence submitted by Manali Petrochemicals, a public notice dated 18.09.2019 was published in the Gazette of India initiating the investigation. While detailing the procedure followed in the investigation, it is mentioned that the period of investigation was from 01.04.2018 to 31.03.2019 (12 months) though the injury investigation period covered three years i.e., 2015-16, 2016-17, 2017- 18 plus the period of investigation. Designated Authority provided a copy of the non-confidential version of the application to the known producers / exporters and to the governments of the subject countries.
Interestingly, while the name of Dow Chemical as the importer of the subject good has been mentioned, there is no mention about Expanded Polymer Systems as an interested party. However, there is acknowledgment that submissions were received from Indian Polyurethane Association. It further mentions that an oral hearing had taken place on 04.03.2020 but another oral hearing was held on 15.07.2020 in view of change of the Designated Authority. It is also stated that the essential facts of the investigation were disclosed to the known interested parties vide the disclosure statement dated 21.08.2020.
Claim of confidentiality - HELD THAT:- The Designated Authority held that on being satisfied he had accepted confidentiality claims wherever warranted and accordingly those were not disclosed to other interested parties. However, he has stated that wherever possible, parties providing information on confidential basis were directed to provide sufficient non-confidential version of the information filed on confidential basis.
Normal value, export price and determination of dumping margin - HELD THAT:- It is stated that Designated Authority considered the views of the domestic industry and of the interested parties whereafter normal value, export price and dumping margin were determined and disclosed in the form of a table. Designated Authority observed that the dumping margins are more than the de minimis limits.
After an analysis of various aspects including factors affecting domestic prices, magnitude of injury margin, etc., Designated Authority noted that the injury margin is positive and significant for co-operating producer and subject countries for the period of investigation.
The law is well settled that be it a quasi-judicial or an administrative body, if any decision making affects the rights of a party, principles of natural justice have to be followed. Even in those cases where the statutes are silent, courts have read into those statutes the need and requirement for adhering to the principles of natural justice to ensure that the decision making process is just, fair and reasonable.
Section 9C of the Act, which we have already extracted above, gives right to an aggrieved party to file appeal before the CESTAT under section 129 of the Customs Act, 1962 against an order of determination of dumping in relation to import of any article. Sub- section (2) thereof is illustrative. It says that such an appeal shall be filed within 90 days of the date of order under appeal, though extendable if the appellant satisfies the CESTAT that it was prevented by sufficient cause from filing the appeal in time. Admittedly, in both the petitions the challenge is to the final findings dated 01.09.2020 of the Designated Authority. As per the final findings, Designated Authority has concluded that the product under consideration has been exported to India from the subject countries below its normal value, thus resulting in dumping. Domestic industry has suffered material injury due to dumping and the material injury has been caused by the dumped imports - Stricto sensu, the final findings of the Designated Authority is a recommendation. Such a recommendation cannot be construed to be an order for the purpose of sub-section (2) of section 9C of the Act. It will become an order only upon acceptance of the recommendation of the Designated Authority by the central government and upon issuance of consequential notification. It is from such date that the period of limitation for filing appeal would commence. Prior to issuance of such notification by the central government, the final findings of the Designated Authority would remain a recommendation which cannot be construed to be an order.
Thus, filing of the two writ petitions at this stage appears to be premature. Respondent No. 2 is yet to take a decision on the impugned findings. Certainly, respondent No. 2 will have to apply its own independent mind taking into consideration relevant factors and thereafter take a decision on the recommendations one way or the other. Needless to say, representations submitted by the parties including the one submitted by Indian Polyurethane Association on 28.09.2020 shall be considered by respondent No. 2 before taking such decision.
Petition disposed off.
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2021 (1) TMI 1304
Seeking grant of bail - Principles of parity - as per the FIR, the petitioner Kalyan Singh was allegedly armed with a knife but it is apparent from the injury reports of the injured Om Prakash and Thakara Ram that no injury whatsoever was caused to anyone by a sharp weapon - HELD THAT:- As per Section 439 Cr.PC., the Sessions Court as well as the High Court while considering the bail application/s of arrested accused have concurrent jurisdiction. Needless to say that while considering bail applications of similarly situated accused persons, parity has to be maintained and it should be ensured that unless any distinguishable feature or any special circumstance is in existence, the bail of a subsequently arrested accused on same footing should not be dismissed when other/s with similar allegation/s have been extended indulgence of bail.
In the present case, the learned Additional Sessions Judge No.1, Barmer, while rejecting the bail application of the petitioners by order dated 23.12.2020, referred to his own order dated 05.09.2020 whereby, the bail application of Swaroop Singh was rejected. However, the order dated 07.10.2020 passed by this Court whereby, Swaroop Singh whose case stands on the same footing as the petitioners, was admitted to bail was conveniently omitted. This indicates the gross disregard of this Court’s order by the learned Additional Sessions Judge No.1 Barmer.
The approach of the learned Additional Sessions Judge No.1, Barmer in denying bail to the petitioners even though similarly situated accused has been granted bail in the very same case is deprecated as such an approach not only tantamounts to a total disregard of this Court’s order but also increases this Court’s dockets flooding it with unwarranted bail applications and also prolongs the custody of the accused without any justification. It is henceforth expected from all the Subordinate Courts in the State of Rajasthan that where similarly situated co-accused has been granted bail by this Court and the bail application of other accused comes up for consideration, this Court’s order/s shall not only be referred to while deciding such bail application/s but shall be followed unless exceptional/distinguishable features exist.
It is ordered that the accused-petitioners namely Khet Singh S/o Lal Singh and Kalyan Singh S/o Lal Singh arrested in connection with F.I.R. No.221/2020, Police Station Kotwali, District Barmer shall be released on bail, subject to the compliance with the conditions imposed - bail application allowed.
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2021 (1) TMI 1303
Denial of revival of petition by invoking Rule 11 of the NCLT Rules, 2016 - non-compliance with the settlement terms - HELD THAT:- It appears that the Terms of Settlement providing a repayment schedule was incorporated in the order thereby making it an order/ decree of the Court and once this was the position, giving liberty to the Financial Creditor to come back can be interpreted on no hypothesis other than that the revival of CIRP would be sought for non-compliance with the Terms of Settlement. Therefore, even on merit, there are no substance in the instant appeal.
Appeal dismissed.
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2021 (1) TMI 1302
Cognizance/summoning order u/s 276C (2) r.w.s. 278E of I.T.Act - application u/s 482 Cr.P.C praying to quash the Criminal Complaint - HELD THAT:- As applicant submits that he does not want to press the principal prayers made in this application. He is ready to submit to the jurisdiction of the court, seek bail and accept all the conditions which this Court may deem fit to impose upon him. The only prayer made by learned counsel for the applicant is for expeditious disposal of his bail application.
In view of the submissions made by learned counsel for the applicant, the prayer, so far as it relates to seeking quashing of the proceedings as well as summoning order, stands refused.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. [2004 (10) TMI 635 - ALLAHABAD HIGH COURT] as well as judgement passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P. [2009 (3) TMI 1042 - SUPREME COURT]
For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. Application under Section 482 Cr.P.C. is finally disposed of
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2021 (1) TMI 1301
Adjudication not finalised even after lapse of more than 10 years - Denial of CENVAT Credit - recovery of rebate claim - petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers - HELD THAT:- The present petition stands allowed in terms of decision in the case of SHREE BALAJI AROMATICS PVT. LTD., HINDUSTAN MINT AND AGRO PRODUCTS PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICES TAX, CHANDIGARH [2021 (1) TMI 1300 - PUNJAB AND HARYANA HIGH COURT], where it was held that The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed.
Petition allowed.
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2021 (1) TMI 1300
Adjudication not finalised even after lapse of more than 10 years - Denial of CENVAT Credit - recovery of rebate claim - petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers - HELD THAT:- The decision in the case of M/S MENTHA & ALLIED PRODUCTS LTD THROUGH ITS AUTHORISED REPRESENTATIVE SATYA NARAIAN VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, CHANDIGARH AND M/S ARORA AROMATICS PVT. LTD. VERSUS UNION OF INDIA AND OTHERS [2020 (12) TMI 1230 - PUNJAB AND HARYANA HIGH COURT] would cover the case of the petitioners in their favour, where it was held that The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed.
Petition allowed.
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2021 (1) TMI 1299
Summon by Additional District Judge under Section 319 Cr.P.C. - concealment of not placing the order on record - HELD THAT:- The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others, [2014 (1) TMI 1819 - SUPREME COURT], has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.
A perusal of the judgment of the High Court indicates that the High Court did not examine the correctness of the order dated 17.08.2019 by which the appellants were summoned by Additional District Judge under Section 319 Cr.P.C., rather has dismissed the Criminal Revision on basis of a subsequent fact i.e. order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court further took the view that since the proceedings in pursuance of Section 319 Cr.P.C. have already been initiated and that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 Cr.P.C. would be tenable before the High Court till the order dated 18.09.2019 passed in proceedings at the behest of revisionist subsist.
The order dated 18.09.2019 by which the Court has directed appearance of the accused appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17.08.2019 by which appellant has been summoned.
The impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside - Appeal allowed.
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2021 (1) TMI 1298
Exemption u/s 11 - denying the benefits of Section 11 and 12 by invoking proviso to Section 2(15) r.w.s. 13(8) - accumulation of 15% - deduction in the fixed assets - HELD THAT:- All the three questions, referred to above, as proposed by the Revenue are no longer res integra in view of the judgment of this High Court rendered [2020 (8) TMI 600 - GUJARAT HIGH COURT]
This tax appeal fails and is hereby dismissed.
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2021 (1) TMI 1297
Seeking grant of Anticipatory bail - disputes civil in nature - by imposing the condition of deposit of ₹ 41 lakhs, the High Court has, in an application for pre-arrest bail Under Section 438 of the Code of Criminal Procedure, 1973 virtually issued directions in the nature of recovery in a civil suit - HELD THAT:- It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behavior and standing of the accused and the circumstances which are peculiar of the accused and larger interest of the public or the State and similar other considerations.
A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.
The order impugned is modified by deleting the direction to deposit ₹ 41 lakhs as directed by the High Court - appeal disposed off.
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2021 (1) TMI 1296
Rate of tax applicable to domestic companies and/ or co-operative banks - provisions of Article 26 (Non-discrimination) of the India-France tax treaty - HELD THAT:- On a perusal of a recent order of the Tribunal passed in the assessee‟s own case for A.Y. 2013-14 [2019 (4) TMI 2099 - ITAT MUMBAI], we find, that the Tribunal by relying on its earlier order for A.Y. 1996-97 [2013 (8) TMI 1173 - ITAT MUMBAI] had therein concluded that the tax levied at a higher rate in the case of a foreign company is not to be regarded as a violation of the non-discrimination clause. Thus we respectfully follow the aforesaid order of the Tribunal. Accordingly, the Ground of appeal No. 1 is dismissed.
Data processing fees paid by Indian branch offices of the Appellant to its Singapore branch - HELD THAT:- As the facts in context of the aforesaid issue under consideration remains the same as was there before the Tribunal in the assessee‟s own case for A.Y. 2013-14 [2019 (4) TMI 2099 - ITAT MUMBAI] therefore, we respectfully follow the view therein taken. Accordingly, we herein direct the A.O to delete the impugned addition.
Income chargeable to tax - Interest payable/paid by the Indian branch offices of the Appellant to the head office and its other overseas branches - HELD THAT:- The issue as to whether or not interest payable/paid by the Indian branch offices of the assessee to its head office and its other overseas branches would be chargeable to tax had been looked into by the various benches of the Tribunal in the assessee‟s own case for the aforementioned years. On a perusal of the order passed by the Tribunal in the assessee‟s own case for A.Y. 2012-13 [2019 (7) TMI 1076 - ITAT MUMBAI] the Tribunal following the order in the case of Sumitomo Mitsui Banking Corporation [2012 (4) TMI 80 - ITAT MUMBAI] and the orders of the coordinate benches of the Tribunal in the assessee's own case for the preceding years, had concluded, that the interest income received by the assessee from its Indian branch being a payment made to self was thus not taxable in the hands of the assessee
Accordingly, we herein hold that the interest income received by the assessee from its Indian branch office being a payment made to self would not be taxable in the hands of the assessee.
Short credit of taxes deducted at source (TDS) - HELD THAT:- As the aforesaid issue would require verification of records, we, therefore, restore the matter to the file of the A.O with a direction to verify the aforesaid claim of the assessee. In case the claim of the assessee is found to be in order then credit for the deficit amount of tax deducted at source shall be allowed by the A.O as per the extant law. Needless to say, the A.O shall in the course of the “set aside” proceedings afford an opportunity of being heard to the assessee who shall remain at a liberty substantiate his aforesaid claim. The Ground of appeal No. 6 is allowed for statistical purposes.
Levying interest u/s 234A - return of income was filed by the Appellant within the prescribed due date for filing the return of income - HELD THAT:- We find that it is a matter of fact borne from the record that the assessee company had e-filed its return of income for the year under consideration i.e A.Y. 2014-15 vide e-filing acknowledgment No. 429259941291114. In the backdrop of the claim of the ld. A.R that the assessee had filed its return of income well within the prescribed time limit, therefore, no interest u/s 234A was liable to be saddled upon it, we herein restore the issue to the file of the A.O for making necessary verification. In case, the assessee is found to have filed its return of income within the stipulated time period contemplated in sub-section (1) to Sec. 139 then, no interest u/s 234A of the Act shall be imposed on it. Ground of appeal is allowed for statistical purposes.
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2021 (1) TMI 1295
Reopening of assessment u/s 147 - bogus purchases - AO had disallowed 12.5% of the alleged non-genuine purchases which has been sustained by Commissioner (Appeals) - HELD THAT:- The fact that the assessee failed to prove the genuineness of purchases before the Departmental Authorities is very much evident. Even, before the Tribunal the assessee had not filed any evidence to prove that purchases, indeed, were made from the declared source. In such circumstances the disallowance made by the Assessing Officer @ 12.5% of the non genuine purchases is reasonable considering the view expressed by the Tribunal in similar nature of cases. Therefore, we not inclined to interfere with the decision of learned Commissioner (Appeals) on the issue.
Validity of issuance of notice u/s 148 - As it is very much clear, initially the returns of income filed by the assessee were not subjected to scrutiny but were only processed u/s 143(1) - Subsequently, AO had received specific information indicating that certain purchases made by the assessee are non-genuine. Therefore, tangible material was available with the Assessing Officer to reopen the assessments u/s 147 of the Act. That being the case, there cannot be any question regarding assumption of jurisdiction u/s 147 of the Act. - Decided against assessee.
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2021 (1) TMI 1294
TP Adjustment - determining the arm’s length price of the appellant’s international transaction with its associated enterprises in respect of interest on loan advanced to wholly owned subsidiary thereby proposing an enhancement of returned income - computing interest at US LIBOR - HELD THAT:- We direct that transfer pricing adjustment qua the transaction of advancing loan by the taxpayer to its AE is to be determined at US LIBOR plus 170 basis points. Appeal of the assessee is allowed.
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2021 (1) TMI 1293
Condonation of delay of 166 days - Section 423 of the Companies Act 2013 - HELD THAT:- Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation.
It only needs to be clarified that the order of the NCLAT, which had come to the conclusion that there was a violation of the principles of natural justice in adhering to the provisions of Section 272(4) of the Companies Act 2013, will not come in the way of the appellant taking recourse to the remedies available in law after following due process.
Application disposed off.
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2021 (1) TMI 1292
Seeking grant of bail - offence of cheating and forgery - co-accused were running two investment companies in the name of Veliss Investment Solution and Goodwill Wealth Management Pvt. Ltd. and invited deposits by offering lucrative return of interest at the rate of 20% per month - HELD THAT:- As per the complainant he himself opened the Dmat account in the name of his wife and invested the money in anticipation of getting more returns than offered by the nationalized banks. He is an educated person and after understanding the scheme of the company he himself invested his money in the company, therefore, now he cannot say that he was not aware about the hidden risk and volatility of the money market. The applicant is in custody since 02.10.2020. The investigation is complete and Challan has been filed. All the documentary evidence has been seized by the police. The trial may likely to take time to conclude. The main accused Vinayak Nakaswal is already in custody. The applicant is also having parity with the case of co-accused who have already been enlarged on bail by this court.
The applicant is directed to be released on bail on her furnishing a personal bond in the sum of Rs.1,00,000/- with one solvent surety of the like amount to the satisfaction of the trial Court for her regular appearance before the trial Court during trial with a condition that she shall remain present before the Court concerned during trial and shall also abide by the conditions enumerated under section 437(3) Cr.P.C. - the application is allowed.
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2021 (1) TMI 1291
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in providing information technology enabled services ("ITES") to its holding company and therefore has to be regarded as an Associated Enterprises ("AEs"), thus companies functionally dissimilar with that of assessee need to be deselected.
Also if filter of sales > Rs. 1 crore OR export turnover in excess of 75% of total sales is not satisfied exclusion of company as a comparable company confirmed. Also companies with huge brand value and diversified activities need to be deslected.
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