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2022 (3) TMI 1561 - ITAT DELHI
Income taxable in india - TDS u/s 195 not deducted on payment made for connectivity services - use equipment or process of equipment - payment made by the assessee is a royalty for use of equipment of BT as concluded by AO - HELD THAT:- As decided in New Skies Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] wherein as relied upon the decision of Asia Satellite [2011 (1) TMI 47 - DELHI HIGH COURT] as held that where the customer does not use equipment or process of equipment itself payment cannot be termed as royalty for use of a process or equipment.
As in the case in hand, no equipment is given by FTO to the assessee. The assessee merely delivers the calls using its own network through international connection with FTO which picks up the calls and further transmits at the desired destination by using its own network.
We are of the consdiered opinion that the payment made for connectivity services are not taxable as royalty in terms of Article 13 of the India –UK DTAA. No doubt, that service is being provided with the help of scientific equipment and technology.
That by way itself could not qualify the payment as royalty. We accordingly, direct the Assessing Officer to delete the impugned addition. no deduction of TDS required - Assessee appeal allowed.
Deduction u/s 80IA @ 30% of eligible profit - determination of initial assessment year - HELD THAT:- In our considered view, unless the operation of the decision of the co-ordinate bench is stayed by the Hon'ble High Court, the same needs to be followed. We find that in [2018 (9) TMI 2131 - ITAT MUMBAI] conclude that as the assessee had opted A.Y 2007-08 as the initial assessment year for claim of deduction under Sec. 80IA(2), therefore, it would be entitled for 100% deduction from A.Y 2007-08 to A.Y 2011-12 and thereafter 30% from A.Y 2012-13 to A.Y 2016-17, subject to satisfaction of all other conditions.”
Disallowance of license fee paid - HELD THAT:- The addition has been made only in the year under consideration for the reason that Department has filed SLP in the case of Bharti Hexacom Ltd. [2023 (10) TMI 786 - SUPREME COURT] & Vodafone Mobile Services Ltd. [2016 (11) TMI 1702 - DELHI HIGH COURT] Hon’ble Bombay High Court in the case of CIT vs. Forest Development of Maharashtra Ltd [2017 (8) TMI 384 - BOMBAY HIGH COURT] has observed that even if the principle of res judicata does not apply in tax matters yet consistency and certainty of law would require the State to take uniform position and not change their stand in the absence of change in facts and /or law. In the present case, admittedly there is no change in the facts and/or law. In such a situation, merely because on SLP has been filed by 6 Revenue in some other case on identical facts, cannot be justification for the disallowance of expenditure. We thus find no justification in the order of AO for disallowing the expenditure. Decided in favour of assessee.
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2022 (3) TMI 1560 - DELHI HIGH COURT
Validity of assessment u/s 144B - Assessee, on instructions, says that no personal hearing was granted - HELD THAT:- As revenue, says that he will revert with instructions as to whether the proceedings held by the Assessing Officer on 16.04.2021 were recorded. In case, the proceedings were recorded, Mr Singh will place either a transcript of the same or the record of the proceedings in digital mode before us, on the next date of hearing.
A copy of the transcript/digital recording will be provided to the counsel for the petitioner/assessee as well. At the request of the counsel for the parties, list the matter on 30.03.2022.
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2022 (3) TMI 1559 - SC ORDER
Permission for withdrawal of appeal - Learned Additional Solicitor General seeks liberty to withdraw the present appeals due to low tax effect - HELD THAT:- The appeals are dismissed as withdrawn without commenting and expressing any opinion on the questions of law raised.
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2022 (3) TMI 1558 - ITAT CHENNAI
Disallowances u/s.14A r.w.r 8D - suo-motto disallowance of expenditure relatable to exempt income - HELD THAT:- An identical issue has been considered by Tribunal in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] directed the AO to restrict disallowances u/s.14A of the Act, to the extent of exempt income earned for the impugned assessment year. Thus we direct the AO to restrict disallowance u/s.14A to the extent of exempt income earned for the impugned assessment year.
Nature of subsidy Receipt - Depreciation on capital subsidy - HELD THAT:- As decided in assessee own case [2021 (9) TMI 1070 - ITAT CHENNAI] subsidiary received from SIPCOT is capital receipt not liable for tax. Thus after considering nature of subsidy has allowed claim of the assessee by observing that for earlier years, the CIT(A) has allowed claim of the assessee and the AO has accepted decision of the CIT(A) and deleted additions, while passing order giving effect to the order of the CIT(A). Therefore, consistent with the view taken by the coordinate Bench, we direct the AO to delete addition made towards disallowance of depreciation on capital subsidy received from SIPCOT.
Disallowance u/s.43B(c) - performance incentive paid to employees - HELD THAT:- As in assessee’s own case for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] under identical circumstances, the Tribunal has held that payment made to an employee which is in the nature of bonus or commission for services rendered is covered u/s. 36(1)(ii) of the Act, and thus, if such payment is not made on or before due date of filing of return of income u/s.139(1) of the Act, then same cannot be allowed as deduction, as per section 43B(c) - we are inclined to uphold the order of the AO as well as the directions of ld.DRP and reject ground taken by the assessee.
Fresh claim made by the assessee - Nature of receipts - VAT incentive received from Government of Tamil Nadu - Assessee has treated above incentive as revenue receipt both for its books of account and its tax returns. However, during the course of assessment proceedings, the assessee has raised a fresh claim to treat incentive as capital receipts not chargeable to tax - HELD THAT:- we find that the Tribunal had considered an identical issue for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] where the issue has been remanded back to the file of AO to consider the issue denovo on merits in accordance with law, has set aside issue to the file of AO.
Disallowance of investment allowance u/s.32AC - amount invested before specified period - HELD THAT:- In order to eligible for benefit of investment allowance u/s.32AC(1) of the Act, the assessee must satisfy two conditions as per which new asset should be acquired and installed between 01.04.2013 and 31.03.2015. Unless the assessee satisfies two conditions, it cannot claim benefit of additional investment allowance. In this case, there is no dispute with regard to fact that the assessee has acquired plant and machinery worth of Rs.1041.32 crores prior to 01.04.2013 and kept in capital work in progress. Therefore, to the extent of amount invested before specified period, the assessee cannot claim investment allowance u/s.32AC(1) of the Income Tax Act, 1961.
We are of the considered view that there is no error in the reasons given by the AO as well as learned DRP to sustain additions made towards disallowance of investment allowance @ 15% u/s.32AC on plant and machinery acquired and kept in capital work in progress before 01.04.2013, beyond the specified period as per the provisions of section 32AC - Hence, we are inclined to uphold findings of the learned DRP and reject ground taken by the assessee.
TP adjustment made towards brand development services - HELD THAT:- As relying in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] TPO as well as learned DRP were erred in making transfer pricing adjustments towards brand services by adopting Spearman’s Rank Correlation method and concluded that there is positive accretion between brand value and market capitalization of HMC Korea and hence, directed the AO/TPO to delete transfer pricing adjustment made towards brand development services. Therefore, consistent with the view taken by the coordinate Bench, we direct the AO to delete addition made towards brand fee adjustment.
Nature of receipt - amount received from Focus Market Scheme - Whether to be treated as capital in nature and exclude from total income? - HELD THAT:- As in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] held that duty credit scrips received from Govt. of India under Focus Market Scheme is revenue in nature.
Deduction towards education and secondary education cess u/s.37(1) - HELD THAT:- We find that the Tribunal had considered an identical issue for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] where the issue has been remanded back to the file of AO to consider the issue denovo on merits in accordance with law, has set aside issue to the file of Assessing Officer.
Appeal filed by the assessee is treated as partly allowed for statistical purposes.
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2022 (3) TMI 1557 - SC ORDER
Seeking adjournment on the ground of personal difficulty - HELD THAT:- In view of the letter circulated by the learned counsel for the respondent seeking adjournment on the ground of personal difficulty, list the matter after two weeks. Rejoinder filed by the petitioner is taken on record.
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2022 (3) TMI 1556 - SUPREME COURT
Implementation of One Rank One Pension [OROP] policy for ex-servicemen of defence forces - OROP is the payment of uniform pension to armed services personnel retiring in the same rank with the same length of service, irrespective of the date of retirement.
The Petitioners contend that the initial definition of OROP was altered by the first Respondent and, instead of an automatic revision of the rates of pension, the revision now would take place at periodic intervals. The Petitioners submit that the deviation from the principle of automatic revision of rates of pension, where any future enhancement to the rates of pension are automatically passed on to the past pensioners, is arbitrary and unconstitutional Under Articles 14 and 21 of the Constitution.
HELD THAT:- The principles governing pensions and cut-off dates can be summarised as follows:
(i) All pensioners who hold the same rank may not for all purposes form a homogenous class. For example, amongst Sepoys differences do exist in view of the MACP and ACP schemes. Certain Sepoys receive the pay of the higher ranked personnel;
(ii) The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date;
(iii) The judgment of the Constitution Bench in Nakara (supra) cannot be interpreted to read the one rank one pension Rule into it. It was only held that the same principle of computation of pensions must be applied uniformly to a homogenous class; and
(iv) It is not a legal mandate that pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalised with the rest of the personnel.
Applying the above principles to the facts of the case, there are no constitutional infirmity in the OROP principle as defined by the communication dated 7 November 2015 for the following reasons:
(i) The definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement. It is not the case of the Petitioners that the pension is reviewed 'automatically' to a class of the pensioners and 'periodically' to another class of the pensioners;
(ii) The cut-off date is used only for the purpose of determining the base salary for the calculation of pension. While for those who retired after 2014, the last drawn salary is used to calculate pension, for those who retired prior to 2013, the average salary drawn in 2013 is used. Since the uniform application of the last drawn salary for the purpose of calculating pension would put the prior retirees at a disadvantage, the Union Government has taken a policy decision to enhance the base salary for the calculation of pension. Undoubtedly, the Union Government had a range of policy choices including taking the minimum, the maximum or the mean or average. The Union government decided to adopt the average. Persons below the average were brought up to the average mark while those drawing above the average were protected. Such a decision lies within the ambit of policy choices;
(iii) While no legal or constitutional mandate of OROP can be read into the decisions in Nakara (supra) and SPS Vains (supra), varying pension payable to officers of the same rank retiring before and after 1 July 2014 either due to MACP or the different base salary used for the calculation of pension cannot be held arbitrary; and
(iv) Since the OROP definition is not arbitrary, it is not necessary for us to undertake the exercise of determining if the financial implications of the scheme is negligible or enormous.
In terms of the communication dated 7 November 2015, the benefit of OROP was to be effected from 1 July 2014. Para 3 (v) of the communication states that "in future, the pension would be re-fixed every five years". Such an exercise has remained to be carried out after the expiry of five years possibly because of the pendency of the present proceedings.
It is ordered that in terms of the communication dated 7 November 2015, a re-fixation exercise shall be carried out from 1 July 2019, upon the expiry of five years. Arrears payable to all eligible pensioners of the armed forces shall be computed and paid over accordingly within a period of three months.
Petition disposed off.
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2022 (3) TMI 1555 - KARNATAKA HIGH COURT
Dishonour of Cheque - legally recoverable debt or not - pre-matured cheques presented for realization were dishonoured - rebuttal of presumption - HELD THAT:- The Apex Court in SRIPATI SINGH [2021 (11) TMI 66 - SUPREME COURT] holds that the contention with regard to cheque being dishonoured and its justification or otherwise, would arise in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount. If the due date as per the terms of agreement for payment has not yet arrived, it does not become a matured event to initiate proceedings under the Act; same is the case at hand.
The law with regard to such interference in the proceedings under the Act is that, if documents of unimpeachable character are shown to the Court, the Court has to take that into consideration, as further proceedings should lead to a ground of harassment to the accused.
A document if so unimpeachable is produced, the Court has to look into the same to avoid future harassment to the accused. Therefore, in the considered view of this Court, the cheques that were presented had not yet ripened to be presented as they were on a particular contingency to be presented or they were subject to conditions before presentation. Those conditions admittedly have not come about as on the date the cheques were presented. Therefore, the contingency has not even arrived at. Presenting the cheques and initiating proceedings for dishonor of cheques under the Act only results in harassment to the accused and esoteric satisfaction to the complainant.
Petition allowed.
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2022 (3) TMI 1554 - SC ORDER
Requirement to furnish bank guaranteed against the dues - HELD THAT:- Having gone through the impugned judgment and order passed by the High Court and more particularly when against the dues of Rs. 40,00,00,000/- (Rupees Forty Crores), the petitioner is directed to furnish the Bank Guarantee of approximately Rs. 12,00,00,000/- (Rupees Twelve Crores) in exercise of power under Order 21 Rule 40 (2) of the CPC, there are no reason to interfere with the impugned judgment and order passed by the High Court.
The Special Leave petition stands dismissed.
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2022 (3) TMI 1553 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor has defaulted on various payments due to the Applicant - bonafide intent for resolution or not - forum used as recovery mechanism - active participation in the resolution process of the Corporate Debtor in terms of the Prudential Framework before filing the CP and even thereafter - HELD THAT:- Whether an application under section 7 of the Code is filed with bona fide intention for the resolution of the Corporate Debtor or for recovery of debt can be determined by examining the facts of the case. In the present case, the Petitioner had actively participated in the resolution process of the Corporate Debtor in terms of the Prudential Framework, along with all other Lenders before filing the CP and even thereafter. This conduct of the Petitioner puts a question on the bona fides of the instant Petition. The conduct of the Petitioner made to believe that it has been trying to utilise this forum as a 'recovery mechanism'.
It is pertinent to take into consideration the financial position of the Respondent and the repercussions if the Respondent Company, a going concern, is admitted into CIRP more so when all other Lenders, who comprises the required majority percentage, in the event of constitution of the Committee of Creditors, seriously pursuing for the resolution of the Corporate Debtor under the Prudential Framework, with the active consent and participation of the Petitioner.
In the present case, the Respondent is willing and trying to repay the debts of all the Creditors and to show its bona fides when it was ready to sell its vending business, and when other Lenders accepted the said move, but the Petitioner refused to cooperate in that process. This action of the Petitioner clearly establishes that its intention was recovery of its debt but not the resolution of the Corporate Debtor. Therefore, though, a Creditor can choose its own forum, but in the peculiar facts of the present case, we are of the view that the Petitioner is trying to utilise the provisions of the I & B Code, 2016, for recovery of debt, which is impermissible.
Petition dismissed.
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2022 (3) TMI 1552 - MADRAS HIGH COURT
Money Laundering - diversion of proceeds of crime - predicate offence - application of Section 45 (1) of the PMLA, 2002 for considering the bail petition - whether the arrest of the petitioner under PMLA is uncalled? - HELD THAT:- In T. SUBRAMANIAN, S. RAJESWARI VERSUS THE ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, MADURAI [2021 (12) TMI 42 - MADRAS HIGH COURT], when a similar plea that initiating action under PMLA is premature, when there is no concluded proceedings in the predicate offence raised, this Court had the privilege of sharing Division Bench judgment considered in detail, the effect of the pending or nonpending of proceedings in predicate offence qua prosecution under PMLA and held that In such circumstances, the petitioners are expected to produce documents sought by the authorities and satisfy them that they are not involved in any act of moneylaundering. Instead, under false pretext that the properties are likely to be provisionally attached before filing of final report in the predicate offence, the writ petitions are filed.
The above logic squarely applies to the facts of the case in hand and this answers the first limb of the petitioners submission.
This Court has no second view on the Principle of Law on precedent, as put forth by the Learned Additional Solicitor General, Section 45(1) of PMLA as it stands today after amendment ought to be applied when bail petition is considered in case of offences involving “Proceeds of Crime” above Rs.1 crore. This section which impose additional condition for grant of bail apart from the condition contain in the Code of Criminal Procedure or any other law in force.
During the investigation, the respondent/complainant has asked the petitioner to furnish bank account statements of the offshore Companies involved in this transaction, original invoices raised by the Indonesian Coal Miners to his Dubai based entities, Books of Accounts of his foreign entities located in Mauritius and British Virgin Islands (BVI). The petitioner reluctant to part away those crucial documents and had given evasive reply. Having refused and reluctant to handover these documents which are essential to ascertain whether the money laundered the manner in which the investigation so far reveals, mere physical presence at Respondent Office will not tantamount to cooperation to investigation - It is the discretion and prerogative of the investigating agency, to choose the mode and they need no advice neither from the Court nor from the accused. To collect those documents, the confinement of the petitioner in prison is inevitable, else he may secret away the documents, taking advantage of his liberty.
This petitioner who is a Non-Resident Indian widely connected with other parts of the World and not inclined to cooperative with the investigation in its true sense is not entitled for bail. The ramification of the alleged crime runs to several hundred crores. Several persons in and out side India are connected in the crime. The documents connected with the Shell Companies floated by him in other countries are to be collected - Petition dismissed.
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2022 (3) TMI 1551 - SC ORDER
Seeking grant of Interim Bail - seizure of contraband item - non-compliance of Section 52-A of the NDPS Act - HELD THAT:- There are no reason to interfere with the impugned order. The Special Leave Petition is, accordingly, dismissed.
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2022 (3) TMI 1550 - SUPREME COURT
Wilful disobedience - it was the specific case on behalf of the respondents that the order dated 28.10.2021 is a mandatory direction and therefore it was prayed to recall the order dated 28.10.2021 - Mandatory direction or not - HELD THAT:- In the order dated 28.10.2021, there is a specific direction issued by this Court directing the respondents herein – original petitioners in special leave petition to comply with and deposit the amount to be deposited as per the order passed by the High Court positively and within the time granted by this Court (eight weeks) as mentioned in the order dated 17.09.2021. Moreover, it was specifically observed by this Court that non-compliance of the said order shall be treated very seriously and non-deposit of the amount as directed by the High Court shall be treated as non-compliance of the order of this Court and also having a serious consequence.
The stand taken by the respondents now that they are not in a position to deposit the amount and/or comply with the order passed by the High Court and this Court because of the financial difficulties and therefore there is no wilful disobedience by the respondents in not complying with the order passed by the High Court dated 08.08.2019 and the order passed by this Court dated 28.10.2021 in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 lacks bonafides and the same is not at all acceptable.
The respondents have willfully disobeyed the order passed by the High Court and have willfully disobeyed the order dated 28.10.2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 and thereby the respondents are guilty of civil contempt and have rendered themselves liable for suitable punishment under the provisions of Contempt of Courts Act.
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2022 (3) TMI 1549 - CALCUTTA HIGH COURT
Delayed deposit of employees’ contribution towards PF/ESI - Addition u/s 36(1)(va) r.w.s. 2(24)(x) - HELD THAT:- We find the tax liability in so far as the disallowance of payment of Provident Fund and ESI is far below the threshold limit in both the assessment years which would prevent the appellant/Department from pursuing this appeal. However, taking note of the fact that similar substantial question of law has already been admitted in other cases, we leave this question of law open to be decided in an appropriate case.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As Identical issue arose in the assessee’s own case for the assessment year 2008-09 [2013 (9) TMI 156 - ITAT KOLKATA] which was decided in favour of the assessee by the CIT(A) and confirmed by the tribunal and HC - thus applying the decision of this Court, the said issue was decided against the revenue and in favour of the assessee, we find no ground to take a different view in the matter.
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2022 (3) TMI 1548 - GUJARAT HIGH COURT
Order of Acquittal - abusing the complainant by uttering obscene words in public relating to the mother and Sister of the complainant and also to his wife and minor son - presumption of innocence - acquittal of accused - offence punishable under sections 504, 506(2) and 114 of Indian Penal Code and under sections 3(1)(10) of the Scheduled Tribes (Prevention of Atrocities Act), 1989 - HELD THAT:- It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
On re-appreciation of evidence, it is clear that the there was quarrel of the minor son with Dhanji and at the time of quarrel no witness was present as per the case of the complainant, when the complainant' wife Sonalben had gone to scold, the accused insulted against her caste. However, the wife of the complainant has not lodged any complaint. The complaint is filed on the next day. There is no reasonable explanation for lodging the complaint belatedly. The delay is not explained in the complaint or in the evidence, prima facie it appears that the complaint itself is suspicious. Further though the incident had happened in the public state, other independent witness is not examined. In absence of corroboration to the witnesses, the complainant's complaint is doubtful.
The prosecution has failed to prove the case beyond reasonable doubt and trial court has not committed any error or illegality in acquitting the accused.
The Criminal Appeal being devoid of merits is dismissed.
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2022 (3) TMI 1547 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - time granted to the petitioner to reply was not made fully available to the petitioner - HELD THAT:- Show Cause Notices were issued as to why the proposed variations should not be made, where, the Revenue directed the assessee to submit their response through the registered e-filing account at www.incometax.gov.in by 23:59 hours of 28.03.2022.
In response to the said notices dated 27.03.2022, when the petitioner / assessee made an attempt to upload the reply, the web portal did not allow the assessee as it was closed by 28.03.2022 at 18:50 and 18:52 hours respectively, for which, evidences i.e., the screen shot print outs have been filed in the typed set of papers.
Thereafter, the assessment order has been passed in respect of W.P.No.7932 of 2022, which is impugned herein under Section 147 r.w.s. 144B on 28.03.2022 at 23:32 hours IST that means well before the time granted to the petitioner to reply i.e., 23.59 hours, the very assessment order itself was passed at 23:32 hours, that too by closing the web portal from uploading the reply by the assessee by 18:52 hours on 28.03.2022.
Thus, the evidences would show clearly that the time granted to the petitioner to reply was not made fully available to the petitioner to utilize and in fact even before the closing time of filing the reply, the very impugned assessment orders were passed. On that ground itself, it can easily be construed that the principles of natural justice has been violated. Therefore, on that ground, this Court is inclined to set aside these orders and remit the matter back to the respondents for reconsideration.
Respective impugned orders of assessment are set aside and the matters are remitted back to the respondents for reconsideration.
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2022 (3) TMI 1546 - DELHI HIGH COURT
Reopening of assessment against company ceased to exist - HELD THAT:- As petitioner submits that the impugned notice is void ab initio as it has been issued in the name of a non-existing entity as relying on the decision of Maruti Suzuki India Limited [2019 (7) TMI 1449 - SUPREME COURT] wherein it has been held that the issuance of a notice to a non-existing company is a substantive illegality and not a procedural violation.
Issue notice.
Respondents accepts notice on behalf of the respondents. He prays for and is permitted to file a counter affidavit within six weeks. Rejoinder affidavit, if any, be filed before the next date of hearing.
List on 7th September, 2022 along with connected matters.
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2022 (3) TMI 1545 - CALCUTTA HIGH COURT
Validity of impugned supplementary SCN and addendum supplementary SCN - Challenge on the ground that the same is without jurisdiction and the law does not permit issuance of such supplementary show cause notice - HELD THAT:- The respondent submits that this Court should not entertain the prayer at this stage and liberty should be given to the respondents to consider and dispose of the said objection/representation in accordance with law and considering such submission of the parties, it is deemed fit to direct Commissioner of Customs (Port)/ respondent concerned to consider and dispose of the aforesaid objection/representation against the impugned show cause notice and addendum thereto in accordance with law and by passing a reasoned and speaking order after giving opportunity of hearing to the petitioner or its authorised representative within six weeks from the date of communication of this order. Petitioner shall be also entitled to take all the points before the Authority concerned at the time of consideration of the aforesaid representation which he has taken in this writ petition.
It is recorded that this Court has not gone into the merit of the aforesaid representation and respondent concerned while considering and disposing of the aforesaid objection/representation shall act strictly in accordance with law - petition disposed off.
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2022 (3) TMI 1544 - SUPREME COURT
Refusal to reject the plaint in exercise of powers Under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC) - rejection mainly on the ground that the suit is barred by limitation - rejection also on the ground that a suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act would not be maintainable as against the actual owner.
Whether the suit can be said to be barred by limitation or not? - HELD THAT:- At this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected Under Order VII Rule 11(d) Code of Civil Procedure on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole.
As observed and held by this Court in the case of Ram Prakash Gupta [2007 (10) TMI 715 - SUPREME COURT], rejection of a plaint Under Order VII Rule 11(d) Code of Civil Procedure by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible.
From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application Under Order VII Rule 11 Code of Civil Procedure, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.
Applying the law laid down by this Court in the case of Ram Prakash Gupta to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it.
While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company [1968 (1) TMI 62 - SUPREME COURT]. However, it is required to be noted that even the Plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the Plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed - Whether the Plaintiffs shall be entitled to any relief Under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought Under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers Under Order VII Rule 11 Code of Civil Procedure.
The High Court has committed a grave error in allowing the application Under Order VII Rule 11 Code of Civil Procedure and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers Under Order VII Rule 11 Code of Civil Procedure. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.
The impugned judgment and order passed by the High Court allowing the C.O. and quashing and setting aside the order passed by the trial court refusing to reject the plaint Under Order VII Rule 11 Code of Civil Procedure and consequently rejecting the plaint Under Order VII Rule 11 Code of Civil Procedure is hereby quashed and set aside - Appeal allowed.
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2022 (3) TMI 1543 - MADRAS HIGH COURT
Prolonged suspension of an employee - applicability of the case of Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT] - Section 167(2) of the Code of Criminal Procedure, 1973.
Currency of a suspension order can go beyond three months or not, if within the period aforesaid the memorandum of charges/charge-sheet is not served on the delinquent officer/employee.
The court is required to analyze the judgment of the Apex Court in the case of Ajay Kumar Choudhary, taking note of the facts and if paragraphs (21) and (22) are read together it would become clear that even the Apex Court has not applied the direction given in paragraph (21) in view of the filing of the charge-sheet during the pendency of the appeal or litigation before the court.
Now the matter is being referred to Larger Bench, on account of two conflicting judgments delivered by the Division Benches on a challenge to the order of suspension - By the order of reference, the learned Single Judge referred to the view expressed by a Division Bench in the case of the THE DIRECTOR GENERAL OF POLICE, MYLAPORE AND ORS. VERSUS T. KAMARAJAN [2019 (11) TMI 1798 - MADRAS HIGH COURT], and the subsequent judgment delivered by another Division Bench in the case of the THE CHAIRMAN-CUM-MANAGING DIRECTOR TANGEDCO; THE CHIEF ENGINEER (PERSONNEL) TANGEDCO; THE SUPERINTENDING ENGINEER CEDC/SOUTH-1/TANGEDCO, CHENNAI VERSUS R. BALAJI [2021 (8) TMI 1384 - MADRAS HIGH COURT], where a view different than the view expressed earlier by the Division Bench in T. Kamarajan has been taken.
HELD THAT:- Reference made to the judgment of the Apex Court in the case of STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [2018 (8) TMI 2120 - SUPREME COURT]. The aforesaid judgment is again to be read in the context of the facts given therein. That was a case of deemed suspension, as the employee therein remained behind bars for more than 48 hours. Wherein, largely the issue was in reference to challenge to the charge memo. In paragraph (27) of the said judgment, the court analyzing the facts did not find it appropriate to continue the order of suspension, as there would be no threat to the fair trial. The judgment in the said case was on its own facts. Thus, the judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet is not served within three months. Rather, the issue of challenge to the order of suspension should be analyzed on the facts of each case. It is keeping with the gravity of the charges and the period therein because in case of trap, the order of interference with the order of suspension may have serious consequences.
At this stage, it is to be noted that in certain cases where memorandum of charges/charge-sheet was not filed within three months, the order of revocation was passed with a direction to the employer to post the delinquent in a non-sensitive post - such direction may have serious repercussions. For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions. Thus, the court should analyze each case on its facts when a challenge to the order of suspension has been made.
The reference is answered by holding that:
(i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension.
(ii) The judgment in R. Balaji, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam.
(iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable.
(iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet.
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2022 (3) TMI 1542 - ORISSA HIGH COURT
Seeking stepping up of pay at par with junior - petitioner, having come to know that his junior is getting higher scale of pay than him, represented to the Government to step up his pay to the level of his junior - HELD THAT:- The benefit of stepping up of pay shall be allowed to the senior only in the case of promotion to the higher post for removing the anomalies on account of fixation of pay under Rule-74(b) or (c) of the O.S.C. subject to the conditions mentioned in sub-clauses (a) to (d). As per sub-clause (a), both the junior and senior officer should belong to the same cadre and the posts in which they have been promoted or appointed should be identical in the same cadre - In this case, although the petitioner and Shri Mohanty had belonged to two different cadres, but, when they were promoted to OAS Class-II cadre, they belonged to same cadre and their posts were identical, and undisputedly the petitioner was senior to Shri Mohanty in the gradation list having placement at sl. no. 327 and sl. No. 329 respectively. Subsequently, both of them were promoted to the cadre of OAS Class-I (Jr.) having their placement in the gradation list at sl. no. 494 and sl. No. 496 respectively and in the said cadre also the petitioner was senior to Shri Mohanty. Therefore, sub-clause (a) of the resolution is satisfied. According to sub-clause (b), the scales of pay of the lower and higher posts, in which they are entitled to draw pay, should be identical. To that extent, there is no dispute that scales of pay of OAS Class-II and OAS Class-I (Jr) are identical to each other and accordingly the petitioner's scale of pay was fixed in terms of said scales of pay in the respective cadre. The petitioner has satisfied this condition to be eligible to get the benefit of stepping up of pay.
Rule-11 of the Orissa Service Code states that cadre means, strength of service or part of service sanctioned as a separate unit. Therefore, the petitioner and Shri Mohanty, who was junior to the petitioner, both belonging to OAS Class-II cadre, become the strength of service or part of service sanctioned as a separate unit. More so, their scale of pay in lower or higher post in which they entitled to draw pay should be identical - It is trite-law that if no specific definition has been given to a word or phrase in the Act, then the meaning attached to the same in the dictionary is to be taken as external aid for interpretation of the same.
In view of the meaning attached to the words "stepping up of the pay" and applying the same to the factual matrix of the case in hand, there is no iota of doubt that the principle has already been set up by the apex court in Gurcharan Singh Grewal v. Punjab SEB, [2009 (1) TMI 940 - SUPREME COURT], wherein the apex Court has held that the general norm is that a senior cannot be paid less than his junior even if anomaly in senior's pay is due to difference of incremental benefits. His pay has to be stepped up with reference to higher pay of the junior.
As the undisputed fact is that the junior to the petitioner, namely, Shri A.C. Mohanty was drawing higher pay in OAS Class-II cadre, before being promoted to OAS Class-I (Jr) cadre, therefore, the petitioner ought to have asked for stepping up of his pay much earlier when both of them were continuing in OAS Class-II cadre itself. Having not done so and making such a claim after being promoted to OAS Class-I (Jr.) cadre, the stand has been taken by the State that it is hit by the principle of waiver and also limitation, as has been prescribed under the Administrative Tribunals Act 1985. When discrimination has been meted out to the petitioner, the principle of waiver or limitation, as stated in the counter affidavit filed by the State, has no meaning, in view of the fact admittedly a junior to the petitioner is receiving higher pay than that of the petitioner.
By applying the provisions of Article 14 of the Constitution of India, this Court is of the opinion that the petitioner is entitled to get the benefit of stepping up of pay at par with his junior Shri A.C. Mohanty from the date he was inducted to OAS Class-II, i.e. from 20.06.1980 and the pay scale of the petitioner should be revised accordingly and he should be granted differential arrear benefits, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment - Petition allowed.
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