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Showing 41 to 60 of 1569 Records
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2024 (5) TMI 1530
Disallowance on higher depreciation on plant and machinery, tippers - assessment was finalized upon restricting the disallowance @15% instead of higher rate @ 30% - HELD THAT:- As it is evident from the records before us and the orders passed by the authorities below which had not been able to be controverted by the Ld. DR that the assessee engaged in the activities of excavation of over burden, mining of minerals, transportation of such excavated over burden material, excavation of minerals, transportation of minerals from mines to Pit head and transportation of minerals from Pit head to Lignite handling system/power plant, where the motor lorries used for the transportation of goods on hire.
The condition under the zone of consideration for claiming higher rate of depreciation at 30% on dumpers and tippers have been fulfilled by the assessee and, therefore, having regard to the entire aspect of the matter i.e. the business activities of the assessee qua the claim of the assessee, particularly, when the fact of composite contract awarded to the assessee of mining and transportation has not been able to be controverted by the Ld. DR.
We do not find any reason to interfere with the order passed by the Ld. CIT (A) in granting relief by deleting the addition made by the Ld. AO by restricting the depreciation at 15% against the claim of depreciation at 30% on the dumpers and tippers used by the assessee. The same is found to be just and proper and therefore, upheld.
Disallowance being interest on delay in payment of statutory liabilities of TDS, service tax, VAT, GST and entry tax - HELD THAT:- We find that the judgment relied upon by CIT (A) in the case of Mahalaksmi Sugar Mill Company Ltd. [1980 (4) TMI 1 - SUPREME COURT] decided the issue in favour of the assessee. However, whether interest on service tax, VAT interest, GST interest and entry tax interest paid by the assessee is compensatory in nature or in the nature of penalty has to be examined by AO in the case in hand. This issue has also been considered by the Mumbai Bench in the case of Gini and Jony Ltd. in [2018 (8) TMI 1259 - ITAT MUMBAI] In that view of the matter, at the time of hearing of the instant appeal, we have expressed our mind for setting aside the issue to the file of the Learned AO for verification of the same which has been agreed by both the parties.
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2024 (5) TMI 1529
Challenge to attachment order passed under Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It is conceded by the respondent that provisional attachment order was issued on 27-1-2022 and thereafter no fresh attachment order has been issued.
It is held that the provisional attachment of the Bank Account No. 31605002478 with ICICI Bank in the name of petitioner has ceased to have effect - Petition allowed.
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2024 (5) TMI 1528
Penalty levied u/s 272A(1)(c) - despite issuing summons to the assessee u/s 131 on different dates, the assessee failed to attend on dates fixed and AO noted that the assessee failed to appear on eight such occasions - HELD THAT:- On perusal of penalty order, we find that for first summon, the AO recorded that it was return back by postal authorities” refused”. For second & third summon, he recorded that summon served through “affixture” but the assessee neither complied nor sought adjournment. For fourth summon, the AO recorded that it was sent through notice server, the assessee “refused” to accept summon. And for remaining three occasions, the AO recorded that assessee “neither complied nor submitted any adjournment”.
We find that there is no independent satisfaction of the AO or the ld CIT(A) that they are satisfied with the report about the service of summon on assessee. Both the lower authority proceeded to accept the report of process server or postal authority, without recording their independent satisfaction about the service of summon on assessee for the dates fixed.
The Hon’ble Apex Court in Hindustan Steel Ltd. Vs. State of Orissa [1969 (8) TMI 31 - SUPREME COURT] has held that an order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation.
Penalty cannot be levied in a routine manner. The discretion vested with the authority is to be exercised judiciously on consideration of all the relevant circumstances. A bona fide breach cannot lead to a penalty u/s 272A.
We find that it is not a case of complete non-compliance on the part of the assessee as the assessee attended the officer of investigation wing and given his statement. Thus, levying penalty under section 272A(1)(c) for all the alleged default, without recording the satisfaction of wilful default is not justified.
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2024 (5) TMI 1527
Challenge to attachment order passed under Section 83 of the Central Goods and Services Tax Act, 2017 - expiry of one year from the date the order is made - HELD THAT:- It is held that the provisional attachment of the Bank Account No. 5318491022934019 with Yes Bank Ltd. in the name of petitioner has ceased to have effect.
Petition allowed.
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2024 (5) TMI 1526
Revision u/s 263 - unexplained cash deposits not verified - HELD THAT:- Case of the assessee was reopened u/s 147 to verify the cash deposit in the bank account maintained by the assessee. In the proceedings so followed, the AO has enquired about the cash so found deposited in the bank account and the assessee in turn has filed his explanation and necessary documentation in support thereof. Thereafter, the AO in the reassessment order so passed u/s 147 r/w 143(3) has recorded a clear finding of having verified the explanation so submitted by the assessee and the fact that the necessary documentation have been submitted and duly verified by him and consequentially, the explanation of the assessee regarding the nature and source of cash so deposited was found in order and no adverse finding has been recorded by the AO.
PCIT basis the same documentation and material available on record has however pointed out that the AO has not applied his mind and the order so passed has been held to be erroneous in so far as prejudicial to the interest of the Revenue for the reason that out of Rs 10.50 lacs, an amount of Rs 1 lacs has remained unexplained and unverified.
In our view, once the AO has carried out the necessary enquiry and recorded a specific finding that the source of cash so deposited of Rs 10.50 lacs has been found to be in order, it is clearly a case where the AO has applied his mind and has arrived at a reasonable finding which cannot be disturbed by invocation of jurisdiction u/s 263 - Appeal of the assessee is allowed.
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2024 (5) TMI 1525
Levy of penalty u/s 203 of the Companies Act 2013 - non consideration of material facts - principles of natural justice - HELD THAT:- The language of sub-Section (5) of Section 203 is that if any company makes any default in complying with the provisions of the Section, such company “shall be liable to a penalty” of the amount as stipulated therein. Thus, payment of penalty is not mandatory. The “liability” to pay penalty is subject to adjudication by the concerned authority, that is, the ROC - Such discretion has, associated with it, a responsibility of the adjudicating authority to take into consideration any mitigating or alleviating circumstances which might have visited the company in question before imposing such penalty and or deciding the quantum of the penalty.
Conclusion - In the absence of any real consideration worth the name of the mitigating circumstances of the petitioner company and the small size of the petitioner company, including that of its number of shareholders and share capital, as well as the fact that a whole-time Company Secretary has already been appointed by the company since July 15, 2022 and was functioning on the date of passing the impugned order, the impugned orders of the Appellate Authority as well as the ROC are vitiated for non-consideration of material fact.
The impugned order set aside - petition allowed.
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2024 (5) TMI 1524
Maintainability of petition filed against the petitioner given the claim that the personal guarantee was waived - Seeking a writ in the nature of prohibition prohibiting the National Company Law Tribunal, Bengaluru from entertaining proceedings against him pending on its file filed by the 4th respondent acting on behalf of the 1st respondent - jurisdiction of NCLT to entertain proceedings against the petitioner u/s 95 of the Insolvency and Bankruptcy Code (IBC) as a personal guarantor - HELD THAT:- The proceedings against an individual before the Tribunal would become maintainable, only if he has stood as personal guarantor to any loan of any Company. No doubt, the petitioner did give his approval, as a guarantor in the year 2010, when the term loan was granted. Subsequently, the personal guarantee of the petitioner stood waived in terms of what is noted supra. If personal guarantee of the petitioner has stood waived, he is no longer a guarantor to the finance availed by Company. The proceedings before the Tribunal can be maintained only against a person in default or against a personal guarantor of a Company in terms of the amendment considered in the aforesaid judgment. Therefore, if the petitioner is no longer a personal guarantor, proceedings before the Tribunal against him, depicting him to be a personal guarantor would not be maintainable.
The Apex Court in DILIP B. JIWRAJKA [2024 (1) TMI 33 - SUPREME COURT] holds that no judicial adjudication is involved at the stages envisaged in Sections 95 to 99 of the Code. The Resolution Professional is appointed under Section 97 and serves in a facilitative role. There is no violation of natural justice under Sections 95 to 100 of the Code and the report of the Resolution Professional is only a recommendatory and does not bind the adjudicating authority. The purpose of interim moratorium under Section 96 is to protect the debtor from further legal proceedings. Therefore, the provisions i.e., Sections 95 to 100 of the Code were held to be not unconstitutional in a challenge to the constitutional validity. There can be no qualm about the principles laid down by the Apex Court as to the issue whether the petition would even be maintainable before the Tribunal. The Apex Court was not considering a petition that was not maintainable before the Tribunal, as only under two circumstances this Court has considered whether the proceedings before the Tribunal would be maintainable. Non-maintainability of it would cut at the root of the matter.
Conclusion - i) The jurisdiction of the NCLT is contingent upon the existence of a personal guarantee. A waived guarantee negates the NCLT's jurisdiction. ii) It is declared that the petition before the National Law Company Tribunal is not maintainable qua the petitioner.
Petition allowed.
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2024 (5) TMI 1523
Seeking grant of bail - appellant had been arrested under the Prevention of Money Laundering Act, 2002 and had not yet faced trial or had charges framed against him - HELD THAT:- There is no prospect of even the trial commencing, as the charge has not been framed. In these facts, we find that the appellant will be entitled to be enlarged on bail under section 436A of the CRPC on 27th May, 2024. Hence, there is no need to have multiplicity of proceedings.
The appellant shall be enlarged on bail under Section 436A of the CRPC on 27th May, 2024 - appeal allowed.
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2024 (5) TMI 1522
Seking winding up of the respondent company on the grounds of non-payment of outstanding dues along with due interest - Section 433 of the Companies Act, 1956 - HELD THAT:- The entire statutory scheme in respect of winding up of companies, as also a catena of judgements has been considered by the Supreme Court in holding that even post admission, such a petition may be transferred by the High Court to the NCLT, as long as no irreversible steps have been taken pursuant to the winding up of the company concerned. Further, the submission of the learned Counsel for the petitioner that no application seeking transfer of the present petitions to the NCLT has been moved, cannot be countenanced. A decision to transfer the matter to the NCLT is a matter of jurisdiction of the Court, which transfer can be effected suo moto by this Court and mere moving or non-moving of an application by any of the parties seeking such transfer, will not be decisive.
Conclusion - It is the opinion of this Court, that since no substantive proceedings have been undertaken towards winding up of the company, the present petitions can not be allowed to be continued before this Court. Hence, the instant petitions are transferred to the NCLT. It is left to the NCLT to consider these matters on merits and pass appropriate orders in accordance with law.
List before the NCLT on 08.07.2024.
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2024 (5) TMI 1521
Doctrine of Promissory Estoppel - withdrawal of scheme for revival of economy in Kutch District - Withdrawal of the benefit/incentive scheme to the original writ petitioners - retrospective or retroactive? - effect of subsequent N/N. 16/2008 dated 27.03.2008 - HELD THAT:- The issue involved in this writ petition is squarely covered by the decision rendered by the Apex Court in the case of UNION OF INDIA AND ANR. ETC. VERSUS M/S V.V.F. LTD. AND ANOTHER ETC. ETC. [2020 (4) TMI 885 - SC ORDER] where it was held that 'The High Courts had made a serious error in quashing the subsequent notifications/industrial policies based on the doctrine of promissory estoppel. Consequently, the judgments of the High Courts set aside and the original writ petitions dismissed.'
The impugned order dated 30-6-2017, issued by the respondent No. 3, stands set aside and quashed and the respondents are at liberty to proceed in accordance with law in terms of the aforesaid decision of the Apex Court.
Petition disposed off.
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2024 (5) TMI 1520
Levy of service tax - Business Auxiliary Services (BAS) - incentives/discounts received by the appellant from airlines and shipping lines - inclusion of reimbursements received under Custom House Agent (CHA) services in the taxable value - liability to pay service tax under Goods Transport Agency (GTA) services - invocation of extended period of limitation - suppression of facts or not - demands based on the profit and loss statement are sustainable or not - Difference of opinion between two parties - matter placed before third member to give opinion as a third Member.
Whether the demand of service tax on BAS and CHA services is liable to be set aside on the basis of submissions made and following the ratio of judgments / case laws submitted?
or,
Whether the Tribunal being the last fact-finding authority is required to examine the facts, written agreement / contract between the parties and in its absence remand the matter to the Original Authority for giving an opportunity to the appellant to adduce evidence as may be found necessary for determining the issue?
HELD THAT:- The learned Member (Technical) while remanding the matter on the ground cited supra has, in fact, travelled beyond the Show-Cause Notice and the Order-in- Original. The observation of the learned Member (Technical) that the appellant has not produced any contract except assertions made in their reply to the Show-Cause Notice is not tenable.
It is found that both the Show-Cause Notice and the Order-in-Original does not make any mention as to non-production of the contract nor has questioned the income from airlines, incentive from airlines, income from sea, incentive from sea, due agent collected. Further, it is found that the appellant has given the details of each of the income received and also had informed the Department that there is a difference in rate charged by the airline and the rate charged by the appellant from the customer. Therefore, the observation that appellant had not put forth before the authorities precise data is not tenable. The Show-Cause Notice and the Order-in-Original only question the non-payment of service tax on the discounts and the reimbursement received by the appellant - when the Show-Cause Notice which is the foundation on which the Department has to build up its case, is vague and lacks details, it has to be held that the impugned order based on such a Show-Cause Notice is bad in law and therefore cannot be sustained.
The learned Member (Judicial) has set aside the demand after relying upon the precedents decisions of the Tribunal which has consistently settled the issue regarding the sale of cargo space and reimbursement are not subject to service tax. Those precedents decisions have to be respected and followed otherwise there will be uncertainty in the administration of justice. It is also found that the CESTAT in the case EMU Line Pvt. Ltd. [2023 (6) TMI 64 - CESTAT MUMBAI] has held that the service tax on incentives received from the shipping line is not taxable under Business Auxiliary Service and this decision of the Tribunal has been affirmed by the Hon’ble Supreme Court therefore the said issue settled the controversies involved in the present case in favour of the appellant.
The view taken by the learned Member (Judicial) is correct because the appellant has not suppressed any material fact and has provided all the details and the Show-Cause Notice has been issued on the basis of the details supplied by the appellant. Moreover, it is the question of interpretation and therefore, the extended period cannot be invoked as held by the learned Member (Judicial) which is correct.
As regards penalty also, the view taken by the learned Member (Judicial) is correct in law.
Majority order - The Third Member has agreed with the view taken by Member (Judicial) holding that the demand of Service tax on Business Auxiliary Service and Custom House Agent’s Services is required to be set aside. In view thereof, the impugned order is modified as under :
(1) The demand of service tax, interest thereon, penalties imposed under Business Auxiliary Service is set aside entirely.
(2) The demand of service tax, interest thereon, penalties imposed under Custom House Agent’s Service is set aside entirely.
(3) The demand of service tax and interest thereon, on Goods Transport Agency Service is upheld. The penalties imposed are set aside entirely.
Appeal allowed in part.
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2024 (5) TMI 1519
Addition u/s 68 - share capital including premium disallowed - ITAT deleted addition - HELD THAT:- Tribunal, as we find from the impugned order, has done a thorough and elaborate examination of the facts. It also took note of the response filed to the notices issued under Section 133(6) of the Act. Thereafter it proceeded to examine the resource and surplus of the companies which had subscribed to the shares of the assessee company and found that all the share subscribers are regularly assessed to tax, they are filing Income tax Returns; books of accounts were regularly maintained, financial statements were duly audited under the Income Tax Act and transactions have been carried out through banking channel and all the formalities required by the Registrar of Companies for the purpose of issuing share capital has been duly adhered and as on the date when the Tribunal considered the matter it found that all the share subscribers are active companies.
Thus, Tribunal came to the conclusion that the assessee has successfully discharged the primary onus cast upon them to explain the investment. No substantial questions of law, arising for consideration.
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2024 (5) TMI 1518
Addition u/s 68 - Addition of share capital and premium in absence of identity of creditors and, genuineness and creditworthiness of the entire transactions - ITAT deleted addition - HELD THAT:- Tribunal has recorded a finding that the assessee has demonstrated successfully the nature of the sum received during the year and the source of the said sum being received from the share applicants and complete evidence has been submitted.
AO has not pointed out any specific error in all the documents nor any discrepancies in the information provided by the assessee.
Tribunal on facts found that the AO has not paid any independent enquiry to verify the genuineness of the transaction in spite of the assessee having furnished all details and documents before the AO. No substantial question of law arises for consideration.
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2024 (5) TMI 1517
Addition u/s 68 - unexplained credit in the form of share capital and share premium considering as cash credit - Tribunal deleted addition - HELD THAT:- Tribunal considered the correctness of the factual finding recorded by the CIT(A) and reappreciated the materials brought on record including the factual explanation offered by the assessee and granted relief to the assessee. Thus, we find that not only first the appellate authority but also the Tribunal has examined the facts in depth and recorded the finding. No substantial question of law arises for consideration in this appeal.
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2024 (5) TMI 1516
Provision in the Income Tax Act to assess Firms dissolved - HELD THAT:- We take note of the asserted position of the AO in the course of assessment itself having been apprised of the partnership having transformed into a limited company. Thus seeks to draw sustenance from the decision of the Supreme Court in Principal Commissioner of Income Tax (Central)-2 vs. Mahagun Realtors (P.) Ltd. [2022 (4) TMI 347 - SUPREME COURT].
We take note of similar questions which form subject matter [2024 (9) TMI 1631 - DELHI HIGH COURT]. Accordingly, we admit this appeal on the following two questions of law: -
A) Whether the Income Tax Appellate Tribunal [‘Tribunal’] has erred in not appreciating the fact that there is specific provision in the Income Tax Act [‘Act’] to assess Firms dissolved?
B) Whether the Tribunal has erred in relying upon the judgment of the Supreme Court in the case of Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki India Ltd. [2019 (7) TMI 1449 - SUPREME COURT] which is distinguishable from the present case?
Let this appeal be placed on 05.09.2024.
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2024 (5) TMI 1515
Cognizance for the offences u/s 276B and 276BB - petitioner has deducted TDS and collected TCS for the financial year 2019, but the same was not deposited with the revenue within the stipulated time frame - delay in depositing the said amount ranging from 1 day to 173 days - petitioner in the defence submitted that the delay in depositing the TDS and TCS amount was caused due to the prevailing COVID-19 restriction
HELD THAT:- Income Tax Department does not dispute the fact that the case of the petitioner is covered by the judgment of this Court in Sree Metaliks Limited [2024 (4) TMI 713 - ORISSA HIGH COURT] wherein held the maximum delay of 394 days for depositing the TDS amount to the revenue account have been well explained by the petitioners, therefore, the authorities ought to have taken into consideration same, particularly for the reasons that the petitioners-company has suffered the I.B. proceeding and the restriction imposed during the COVID-19 pandemic.
Present petition deserves merit. Accordingly, the same is allowed.
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2024 (5) TMI 1514
Disallowing deduction claimed u/s 80P(2)(a)(i) and 80P(2)(d) -Assessee engaged in the business of banking and therefore, hit by the provisions of Section 80P(4) - HELD THAT:- On perusal of the above extract of the judgment in the case of Mavilayi Service Co-operative Bank Ltd [2021 (1) TMI 488 - SUPREME COURT] it is clear that the provision of Section 80P(4) are attracted only in case of co-operative society holding a banking license issued by the Reserve Bank of India (RBI). The Assessee is not registered with RBI under Banking Regulation Act, 1949 and does not hold any license issued by RBI. Accordingly, we hold that provisions of Section 80P(4) are not attached in the case of the Appellant and that the Assessee is entitled to claim deduction under Section 80P(2)(a)(i) of the Act being a cooperative society not holding a license issued by Reserve Bank of India and transacting only with its members.
Whether deduction under 80P(2)(d) of the Act would be available to the Appellant in respect of interest income received from co-operative bank? - Nature of income is not a relevant consideration while considering the eligibility for deduction u/s 80P(2)(d) of the Act. Further, the Impact of insertion of Section 80P(4) of the Act is that a co-operative bank would no more be entitled for claim of deduction under Section 80P however, the interest income derived by a co-operative society from a co-operative bank would continue to be eligible for deduction under Section 80P(2)(d) of the Act irrespective of the fact that such interest income is in the nature of ‘profits and gains of business’ or ‘income from other sources’ as Section 80P(2)(d) uses the expression ‘any income’ and not ‘profits & gains of business’.
Our view draws strength from the decision of the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-operative Society Ltd [2018 (4) TMI 1678 - ITAT MUMBAI] taking into account the insertion of Section 80P(4) of the Act vide the Finance Act, 2006, the Mumbai Bench of the Tribunal held that a co-operative society would be eligible to claim deduction under Section 80P(2)(d) of the Act in respect of interest received from a cooperative bank as such cooperative bank continues to be a co-operative society.
Even after insertion of Section 80P(4) of the Act, deduction under Section 80P(2)(d) of the Act was allowable in respect of interest received by a co-operative society from a co-operative bank.
Thus, allow deduction as claimed by the Appellant u/s 80P(2)(a)(i) and 80P(2)(d). Decided in favour of assessee.
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2024 (5) TMI 1513
Nature of expenses - disallowing on adhoc basis 50% royalty expense paid by appellant to 'Choice Hotels Licensing BV' for grant of franchisee rights and use of brand name - CIT(A) tried to bifurcate the annual royalty paid into “onetime benefit” as one part and “recurring benefit” on the other part as some manuals and SOPs are provided - HELD THAT:- The assessee paid royalty at fixed cost and at variable cost. The royalty is paid for use of brand name and also for technical know-how. The assessee has been provided complete spectrum of Hotel operating and technical services like Hotel Development, Project Planning, Technical and Pre-opening Services, Reservations System, Sales and Marketing Support, Human Resources Support, Quality Assurance Inspections, Financial Planning.
The payment of royalty is on annual basis and it is paid for the purpose of “franchise to operate and maintain hotels in an assigned territory and use its brands such as Quality, Comfort, Sleep inn, Cambria suits.” It is a fact that payment of royalty to Choice B.V. was for the use of brand name or trademark. The Assessee accepted non-exclusive right and obligation to operate the franchise and to maintain the franchised hotel in the territory, subject to the terms & conditions mentioned in the agreement.
The royalty paid was meant for the standardization of operations and utilization of brand name. The assessee is precluded from using the brand unless the royalty is paid. Simply by the virtue of provisions of some manuals and SOPs, the amount paid cannot be treated as capital expenditure in nature unless it results in acquiring of a capital receipt.
CIT (A) though tried to be logical, erred in treating the SOPs provided as capital in nature and allowing depreciation when the SOPs themselves do not constitute or given rise any capital asset. Hence, the royalty payment made by the assessee which is recurring in nature is hereby directed to be treated as revenue expenditure. The appeal of the assessee on this ground is allowed.
Disallowance of entertainment expenses - AO observed that payments were made to individuals and through credit cards - Exact nature of expenses and nexus with the business were not discernable - HELD THAT:- Assessee has submitted before the Ld. CIT (A) that it is operating in hospitality sector and the expenses claimed include meals, dinners etc. for entertainment of its clientele in order to enhance its customer base in India. The Assessee has furnished additional documents in the form of ledger account, summary sheets, bills/invoices etc. but the ld. CIT (A) refused to admit the additional evidences. The assessee is directed to furnish the reasons before the ld. CIT (A) for not producing the same before the AO and the ld. CIT (A) shall examine the reasons and adjudicate the matter accordingly. The appeal of the assessee on this ground is allowed for statistical purpose.
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2024 (5) TMI 1512
Challenge to two letters issued by the Railway Authorities that granted a revival of way leave permission to respondent no. 6 for constructing and running a water pipeline under Railway property - whether the grant of renewal of the way leave permission to respondent no. 6, which had expired in the year 2017, is valid in the eye of law and/or interdicts the rights conferred in the meantime on the petitioner in any manner?
HELD THAT:- The admitted position is that the way leave permission granted to the respondent no. 6-Company on July 10, 2007 had expired in the month of July, 2017 - The rights of the petitioner regarding construction of an underpass were first created by way leave permission on February 1, 2019, followed by an agreement dated February 27, 2019 and next by the way leave permission of June 1, 2022, followed up by an agreement dated June 2, 2022.
There are several palpable irregularities in the mode adopted by the Railways in granting such renewal. First, for a permission to qualify as a “renewal”, such renewal has to occur before the expiry of the previous permission, or at least within a reasonable time immediately thereafter. There is a distinction between renewal and novation. The moment a previous permission expires, it ceases to exist and there cannot be any “renewal” of the same. Anyway leave permission granted thereafter would be new contract/permission - The impugned way leave permission has been given specifically for repairing and reviving and renewal of way leave permission to operate an underground pipeline and not any overhead structure. By no stretch of imagination can an overhead structure to be built over the railway lines be defined as an “underground pipeline”.
The “Clean Slate Theory” propounded by the Supreme Court and followed by several High Courts in respect of approved Resolution Plans under the IBC applies only to efface previous debts and liabilities of the Corporate Debtor, to enable the successful Resolution Applicant to revive the concern with a “clean slate”. However, the said legal fiction cannot be doubly applied to generate another legal fiction of creation of new rights which is entirely de hors the ambit of the IBC itself. The rights under different laws than the IBC cannot be deemed to be created or permitted to be created under a Resolution Plan, since such an interpretation of law would confer powers on the authorities prescribed under the IBC which are not vested in them by law.
In view of the Railway Authorities having themselves relied on the Master Circular on Policy for Management of Railway Land and the Railway Engineering Code on several occasions, as demonstrated by the petitioner, and in view of the fact that those have been adhered to at all material times by the Railways and are binding on them, the argument that those are not binding and may be flouted by the Railways at their sweet will cannot be accepted, more so at the behest of the respondent no. 6 where the Railways themselves have not gone to the extent of arguing so.
Conclusion - i) The way leave permission granted to respondent no. 6 is void and illegal, as it was a new permission disguised as a renewal, violating the petitioner's rights and the Railway Engineering Code. ii) The action of public authorities of the stature of the Railways has to be transparent and aboveboard and cannot be actuated by petty profit-motives, giving a go-bye to safety standards and violating existing valid agreements with third parties.
The way leave permission granted to the respondent no. 6, for renewal/revival or otherwise set aside - appeal allowed.
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2024 (5) TMI 1511
TP adjustment - ALP adjustment of specified domestic transactions from Associated Enterprises - exclusion of Indian Energy Exchange [‘IEX’] as a comparable while determining the ALP - HELD THAT:- While the ultimate conclusions recorded by the ITAT in this respect may not be strictly correct since the mere growth of 3% of the “overall power exchange-based market” could not possibly have had a bearing on the extent of transactions that may have taken place on that Exchange, we note that the exclusion of IEX appears to have been accepted while completing assessment for subsequent Assessment Year ["AY"] namely 2015-16.
Appellant prays for time to examine the order passed by CIT(A) for AY 2015-16 and which is referred to by the ITAT.
Transfer of steam from the eligible unit to the non-eligible unit of the assessee - appellant seeks to contend that since steam was a by-product of the business and would have been included in the cost of power generation, it should not have been taken into account. We, however, find that the aforesaid issue and aspect was concerned with the transfer of steam to the non-eligible unit and for the purposes of which the assessee would have been justified in relying on the cost of production. We, therefore, are of the opinion that Question C raises no substantial issue.
Additional material which was taken into account and admitted by the ITAT - The said power undoubtedly vests in the ITAT. We, therefore, find no justification to entertain the appeal on that score.
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9911796707
