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Showing 141 to 160 of 2025 Records
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2019 (7) TMI 1886 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Seeking to permit the Objector herein to intervene in the main case and place their objections to the admission of the main Company Petition - notification dated 21.06.1972 R/ w Regulations 76 and 77 of the State Bank of India General Regulations, 1956.
HELD THAT:- By reading the terms and conditions of the agreement in question and the letter of Karnataka Bank dated 2nd June 2011, the State bank of India cannot claim on the plots unless the concerned plots are registered in the name of the concerned parties. Moreover, as per one of the terms of Tripartite Agreement, the Bank is entitled to recall the loan from the Borrowers in case the completion of the construction of the Building in question is delayed beyond 6 months from the completion date indicated by the Vendor/ Developers'. As per legal notice dated 02.05.2018 (enclosed to the application as document No. 4) issued to the Borrowers as well as Petitioner and Respondent, the construction of the Apartment should have been completed on or before 30th November, 2012 with additional grace time of the three months. However, the applicant stated to have not taken any action till date except filing the instant application. It is also clearly mentioned by the Bank in the No Objection letter cited supra, that they will issue NOC only after receipt of all the proceeds as per the above referred "Agreement to sell".
The claim of Bank on the plots in question is premature and they are only entitled for deposit of sale title deeds of Borrowers, only in case they are registered in their name and otherwise they can proceed on Borrowers to recover their loan amount given to them. Hence, they are not proper and necessary party to be impleaded to the main Company Petition and it same is misconceived - the instant application lacks merits and thus it is liable to be dismissed.
As Per: Rajeswara Rao Vittanala, Member (J) - M/s. Phoenix ARC Pvt. Ltd. Versus M/s. Sovereign Developers and Infrastructure Pvt. Ltd.
HELD THAT:- The assignment of the loan by the Bank to petitioner is not only accepted by the Respondent but it also obtained additional funding for ₹ 5,00,00,000/-. Accordingly new loan agreement dated 09.06.2016 was executed by the parties and also furnished personal guarantees for the loan. The Corporate debtor failed to pay the outstanding amount even after repeated demands made to the Corporate Debtor for total amount of ₹ 35,33,34,286/- towards the dues of the Assigned Debt as well as the New Loan as on 16th August, 2017, which became ₹ 42,80,92,640/- along with interest as on 02.09.2018. The assigned debt and additional loan in question and subsequent debt and default are not in dispute. The Petitioner has also given a sufficient opportunity to the Respondent to pay the outstanding amount and also issued a Legal Notice dated 26th June, 2017, by inter alia stating that they have sanctioned additional loan of ₹ 5,00,00,000/- in the larger interest of the purchasers of the apartments to complete Phase-I works - The amount due was not paid, and they have also denied the allegations that they have charged interest at 42% p.a by clarifying that they have charged interest at 14% p.a compounded monthly. The Respondent also addressed letters to the Prime Minister's office, Finance Minister and Reserve Bank of India.
The Instant Petition is filed in accordance with extant provisions of Code and the rules made thereunder, and debt and default in question are not in dispute, and qualified Resolution Professional namely, Shri Guruprasad Makam with Registration No.IBBI/IPA-001/IPP00932/2017-18/11550, is suggested to appoint him as IRP, who has declared that he is qualified Resolution Professional not undergoing any disciplinary proceedings and also filed Written Communication dated 03.09.2018 - it is a fit case to admit and appoint said Insolvency Professional as IRP.
Application admitted.
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2019 (7) TMI 1885 - CESTAT ALLAHABAD
Evasion of service tax - Supply of Tangible Goods Services - invocation of extended period of limitation solely based upon the profit and loss account and 26AS form submitted with the Income Tax Authorities which has been held to be as not proper - HELD THAT:- Inasmuch as, the revenue’s entire case is based upon the profit and loss accounts read with the 26AS Form and the service tax stands confirmed by invoking the longer period of limitation, the impugned order of Commissioner (Appeals) is not sustainable on limitation itself.
Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1884 - MADHYA PRADESH HIGH COURT
Dishonor of Cheque - appellant has absconded - maintainability of revision against conviction and sentence - HELD THAT:- A bare reading of the rules, no revision shall be entertained against any conviction and sentence if the applicant is absconded and not obeying the order of trial Court as well as appellate Court. During absconding of the applicant, revision is not tenable before this Court. The applicant has not filed any application to the effect that the applicant due to some disability could not appear before the Court and made a prayer to entertain the revision in the absconding stage of the applicant. Meaning thereby the applicant is not obeying the law. Legal maxim Dura Lex Sed Lex, which means “it is harsh, but it is the law”, stands attracted in the present situation.
When this revision is not maintainable ab initio, no further proceeding can be considered without admission of this revision.
Revision dismissed.
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2019 (7) TMI 1883 - ITAT BANGALORE
TP adjustment - comparable selection - determination of Arm's length price (ALP) in respect of a transaction of rendering software development service by the Assessee to its Associated enterprise (AE) - excluding M/s. Flextronics Software Services Ltd., iGate Global Solution, M/s. Infosys Technologies Ltd., Satyam Computers Services Ltd., and L&T Infotech Ltd., on the ground that the turnover of these companies was above ₹ 200 crores and therefore the Assessee whose turnover is only ₹ 6.36 Crores cannot be compared with those companies - HELD THAT:- The admitted factual position is that these companies have turnover of over ₹ 200 crores in the relevant asst. year whereas the assessee's turnover is only 6.36 crores. It has been held by the Bangalore Bench of ITAT that turnover filter is a valid filter in the matter of exclusion of comparables that companies with turnover below 200 crores cannot be compared with the companies above 200 crores. In this regard, Bangalore Bench of the Tribunal in the case of Auto Desk India Pvt. Ltd. [2018 (12) TMI 1742 - ITAT BANGALORE] has taken the aforesaid view after considering several decisions on the issue. In view of the above, we find no grounds to interfere with the exclusion of the aforesaid 5 companies by the CIT(A).
Exclusion of M/s. Exensys Software Solutions Ltd., and Thirdware Solutions Ltd., as not comparable companies by the CIT(A) on the ground that these companies showed abnormal profits - On the issue of exclusion of companies on account of abnormal profits, the law is well settled that abnormal profits by itself is not a ground to exclude a company which is otherwise comparable, but if the abnormal profits are owing to some unusual circumstances, then those companies can be excluded. As far as exclusion of M/s. Exensys Software Solutions Ltd., is concerned, the same is due to amalgamation that happened between this company and some other company during the relevant previous year and therefore the CIT(A) was justified in excluding this company.
Thirdware Solutions Ltd company was a product company and not a SWD service provider such as the Assessee and this company was excluded. We are of the view that in view of the aforesaid order of the Tribunal, we sustain the order of CIT(A) on the basis that this company needs to be excluded as functionally not comparable
M/s. Quintegra Solutions Ltd., had a different accounting year than that of the Assessee and therefore this company ought to have been excluded by the CIT(A) and the learned counsel for the Assessee did not object to its exclusion from the list of comparable companies . Therefore ground No.5 raised by the revenue is allowed.
Exclusion of the following companies Bodhtree Consulting Ltd., Geometric Software Solutions Co. Ltd., and Tata Elxsi Ltd., from the list of comparable companies - The assessee is pure software SWD service provider, whereas these companies were software product companies. The exclusion of these companies in the case of pure software development service provider such as the assessee was considered by this Tribunal in the case of Kodiak Network India Pvt. Ltd[2015 (8) TMI 225 - ITAT BANGALORE] AND M/S. SHARP SOFTWARE DEVELOPMENT (INDIA) PVT. LTD. AND VICE-VERSA. [2017 (1) TMI 1734 - ITAT BANGALORE] - Both these cases relate to asst. year 2005-06 and in these cases it was held in that case that the aforesaid companies were software product companies and not software development service provider such as the Assessee and the segmental details of SWD services and SW Products were not available and therefore the profit margin in the SWD services segment of these companies were not available for comparison. In the light of the aforesaid decision of the Tribunal, we are of the view that the exclusion of the aforesaid companies by the CIT(A) was justified.
Inclusion of M/s. VJIL Consulting Ltd., as not comparable. It was agreed by the parties that this company can be treated as a comparable company and hence ground No.7 raised by the revenue is allowed.
Directing working capital adjustment to be allowed - Even the TPO in his order has allowed working capital adjustment. In transfer pricing analysis allowing working capital adjustment is necessary and it is settled law that such adjustment should be made for proper comparison of profit margin of Assessee and the comparable companies. We find no merit in this ground of appeal raised by the revenue.
Computation of deduction u/s 10A - HELD THAT:- Taking into consideration the decision rendered by the Hon'ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT], we are of the view that communication charges should be excluded both from export turnover and total turnover. We are of the view that as of today, law declared by the Hon'ble High Court of Karnataka which is the jurisdictional High Court is binding on us.
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2019 (7) TMI 1882 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Corporate Debtor is already under CIR process - Claim before IRP - HELD THAT:- The Financial Creditor is directed to file the claim before the IRP, without making any delay.
The Application stands disposed of.
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2019 (7) TMI 1881 - ITAT AHMEDABAD
Penalty u/s 271(1 )(c) - addition u/s 68 on bogus LTCG - HELD THAT :- It is not in dispute that the assessee has furnished the supporting bills and details of payments in support of transactions reported to be long term capital gain. It was contended that entire addition is based on the statement of Mr. Mukesh Chokshi which was never provided to the assessee. It was also pointed out that it is quite possible that Mr. Mukesh Chokshi has not included the transactions with assessee in his statement at all.
Incidence of penalty under s. 271(1 )(c) of the Act is not automatic and should not be imposed merely because it is lawful to do. Considering the smallness of the amount involved, we consider it expedient to give benefit of doubt to the assessee owing to mitigating circumstances viz: the absence of copy of statement of Mr. Mukesh Chokshi or any other substantive material. The assessee has supported the face value of transactions with bills and payments. In the backdrop of ambiguity in circumstances, it is difficult to hold that the explanation offered by the assessee is blatantly false. We are thus inclined to exonerate the assessee from the incidence of penalty. - Decided in favour of assessee.
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2019 (7) TMI 1880 - ITAT RAIPUR
Addition u/s 69 - addition of undisclosed investment in land made by the AO on the basis of seized material - whether corroborative material found during search? - HELD THAT:- In the case of Sahitya Housing (P) Ltd.[2014 (2) TMI 811 - ITAT HYDERABAD] some entries were found in a pen drive which pertained to two persons, one of whom accepted the entries and offered for taxation while the other did not do so. It was held that it is not substantiated by any corroborative evidence that the second assessee was involved in the transaction so as to make addition in the hands of the second assessee. In absence of corroborative evidence, the addition was held to be not justified.
Addition made by the AO on account of purchase of 32.68 acres of land merely on the basis of the excel sheet contained in the seized pen drive and entries in loose papers in the seized documents, unsubstantiated with any corroborative evidence, is not justified, which has been rightly deleted by learned CIT(A) - Decided in favour of assessee.
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2019 (7) TMI 1879 - SC ORDER
Validity of order passed by the CESTAT - Levy of tax - use of natural gas or gas for heating, in manufacture of the soap, is use of power for manufacturing - suppression of facts - extended period of limitation - Reliance upon the Circulars dated 22-3-1968 and 25-3-1968, which, however, are no longer in force - HELD THAT:- The Appellate Tribunal, however, has not examined that aspect at all. Resultantly, we are inclined to set aside the impugned judgment and relegate the parties before the Appellate Tribunal for reconsideration of the appeals afresh on its own merits. - Matter restored back.
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2019 (7) TMI 1878 - KARNATAKA HIGH COURT
Proceedings under FEMA - effect of the adjudication order made during the pendency of the writ appeals - ad-interim relief - Merely because the adjudicating authority has passed an order during the pendency of the writ appeals, it cannot be said that the writ appeals have become infructuous - whether writ appeals should be entertained? - HELD THAT:- As appellants were fully aware about the date fixed for hearing before the adjudicating authority. There is a default on the part of the appellants as they did not appear before the adjudicating authority and they did not move this Court for grant of appropriate interim relief. Knowing fully well that the adjudicating authority is proceeding with the hearing, the appellants took no steps and allowed the adjudicating authority to pass an order. It is not as if immediately after the impugned order was passed, that the adjudicating authority fixed the matter for hearing. The date for hearing was fixed nearly one year after the present appeals were filed.
As observed earlier, one of the arguments canvassed on behalf of the respondents that the appeals have become infructuous, cannot be accepted. However, these appeals are continuation of writ proceedings before the learned Single Judge under Article 226 of the Constitution of India. A remedy under Article 226 of the Constitution of India is always discretionary and equitable. The impugned order of the learned Single Judge was passed on 6th October 2017. The present appeals were pending from 17th November 2017. The adjudicating authority granted enough time to the appellants to seek interim relief in these appeals. The hearing was fixed one year after the impugned order of the learned Single Judge.
The appellants took the risk of not attending before the adjudicating authority knowing fully well that the appellants were not armed with any ad-interim order of stay of this Court. Thus, due to their own conduct, the appellants allowed the adjudicating authority to pass orders of adjudication. It is not the case of the appellants that they did not receive legal advice. They are represented by Senior Advocates.
As pointed out earlier, an efficacious remedy of filing an appeal under Section 19(1) of FEMA is available to the appellants. It cannot be said that the remedy is not efficacious as there is a power vested in the appellate Tribunal to waive the requirement of the deposit of the penalty. Moreover, all contentions which are raised in the appeals can be gone into by the appellate authority.
The issues raised by the appellants have not been finally concluded and notwithstanding the observations made by the learned Single Judge, all issues remain open which can be agitated by the appellants in the statutory appeals. It is for the reasons which are recorded above that we are not inclined to entertain the writ appeals and interfere with the proceedings under FEMA. Accordingly, appeals and also pending interlocutory applications are dismissed.
We direct that the ad-interim order in terms of paragraph 5 of the order dated 28th March 2019 will continue to operate for a period of one month from today.
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2019 (7) TMI 1877 - ITAT VISAKHAPATNAM
Addition u/s 2(24)(x) r.w.s. 36(1)(va) - delayed employees’ contribution to provident fund - Contribution received from the employees paid before due date of filing of the return - HELD THAT:- As decided in M/S. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD. AND VICA-VERSA [2016 (9) TMI 1040 - ITAT VISAKHAPATNAM] we are of the view that there is no distinction between employees’ and employer contribution to PF, and if the total contribution is deposited on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made towards employees’ contribution to provident fund. The CIT(A) after considering the relevant details rightly deleted the additions made by the A.O. We do not see any reasons to interfere with the order of the CIT(A). Hence, we inclined to uphold the CIT(A) order and dismiss the appeal filed by the revenue.
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2019 (7) TMI 1876 - JHARKHAND HIGH COURT
Seeking grant of anticipatory bail - availment of irregular Input tax credit - forged documents - offence punishable under sections 464, 468, 470 of the Indian Penal Code read with Section 132(1) (c), 132(1)(e) and 132(1)(i) of the Jharkhand Goods and Services Tax Act, 2017 - HELD THAT:- It appears that petitioner has been made accused in a case registered under sections 464, 468, 470 of the Indian Penal Code read with section 132(1)(c), 132(1)(e) and 132(1)(i) of the Jharkhand Goods and Services Tax Act, 2017. State authorities have issued a notice prior to the institution of the case on 28.05.2018 after the inspection. Subsequent thereto the First Information Report has been lodged. It appears that the contention raised by the counsel for the petitioner that the case has been registered before adjudication of the matter and passing an order under section 74 of the JGST Act of 2017.
The present application has been filed for grant of anticipatory bail under sections 438 and 440 of the Code of Criminal Procedure with allegations of sections 464, 468, 470 of the Indian Penal Code read with section 132(1)(c), 132(1)(e) and 132(1) (i) of the Jharkhand Goods and Services Tax Act, 2017 - From the counter-affidavit, it appears that petitioner has not made payment to the respective sellers from which the petitioner has purchased the materials rather he had made payment to another firm namely M/s Jai Hanuman Metallicks which is sufficient to substantiate that the petitioner has done total fake transactions to take huge amount of input tax credit on the basis of forged documents which needs detailed investigation.
In view of such serious nature of the case and from the counter-affidavit filed by the Investigating Agency/State Police stating therein that accused petitioner has created fabricated rental paper and other document to show forged address in Jharkhand but during investigation, no such place was found there, it is apparent that the petitioner has created fabricated documents - the Investigating Officer has found that petitioner has created forged and fabricated papers without any inward supply of materials and by showing forged bill where no consignment number, vehicle number or transport bills, obtained the benefit of input tax credit of huge amount from the G.S.T. which is a very serious offence and also in view of the fact that huge financial amount is involved, this Court is not inclined to exercise power under section 438 Cr.P.C.
The prayer for anticipatory bail of the petitioner is hereby rejected.
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2019 (7) TMI 1875 - ITAT KOLKATA
Reopening of assessment u/s 147 - period of limitation to issue notice u/s 143 - HELD THAT:- The proviso to sec. 143(2) states that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. So, from a bare reading of the provisions, it is clear that the AO is barred from serving any notice u/s. 143(2) of the Act on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.
Therefore, in this case, since the assessee pursuant to the notice u/s. 147/148 of the Act dated 21.01.2013 had requested the AO to treat the original return of income filed u/s. 139 of the Act as the return in response to the notice u/s. 147/148 vide letter dated 19.02.2013 means the AO had to issue 143(2) notice before 31.08.2013. Admittedly, the 143(2) notice has been issued on 12.12.2013 and, therefore, the action of the AO is barred by the limitation prescribed by the 1st proviso to sec. 143(2) of the Act and the Hon’ble Supreme Court in the case of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] has held that issuance of notice u/s 143(2) is mandatory for scrutiny assessment even in cases of assessments after search u/s 132 of the Act. Since issuance of notice u/s 143(2) is mandatory before scrutiny assessment even section 292BB of the Act cannot come to the rescue of the AO.
Further, we do not find any merit in the argument of the Ld. CIT, DR that return of income should have been filed and not the letter requesting the AO to treat the original return as the return of income pursuant to the 147/148 notice. Therefore, the notice issued by A.O u/s 143(2) dated 12.12.2013 is hit by the 1st Proviso to section 143(2) of the Act and therefore the A.O had no jurisdiction to issue notice u/s 143(2) after 31.08.2013 and therefore the issuance of notice u/s 143(2) dated 12.12.2013 and all subsequent action is null in the eyes of the law - Decided in favour of assessee.
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2019 (7) TMI 1874 - MADRAS HIGH COURT
Principles of natural justice - validity of assessment order - objections of the writ petitioner have been rejected summarily in one sentence without giving any reason as to why and how the objections are rejected - HELD THAT:- A perusal of the impugned order reveals that the Assessing authority i.e., sole respondent has merely gone by the proposal given by the Enforcement Wing of the department. With regard to the detailed objections of the writ petitioner, in a cryptic manner, the Assessing authority has rejected the same without giving any reason as to why and how the same are rejected. The objections of the writ petitioner dealer have hardly been considered though this is a case of mismatch. What is of utmost importance is proposals of the Enforcement Wing have been confirmed without an independent assessment.
The impugned assessment order is set aside - respondent is directed to assess afresh, after giving a personal hearing to the petitioner's duly authorized representative and after giving opportunity to the petitioner to file requisite records and documents - petition allowed by way of remand.
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2019 (7) TMI 1873 - MADRAS HIGH COURT
Request for opportunity to cross examine - HELD THAT:- There is no material before this Court to demonstrate that communication dated 03.06.2019 was served on the writ petitioner. In any event, as the sole respondent has acceded to the request for cross examination, this Court is of the view that no prejudice would be caused, if the writ petitioner is given an opportunity to cross examine the aforesaid two individuals on a specified date.
Writ petitioner sought permission to cross examine three individuals, but permission was accorded to cross examine two individuals. On instructions, learned Revenue counsel submits that permission was accorded with regard to two individuals as the other individual namely Shri.K.Srinivasulu has turned hostile.
In the light of the narrative thus far, the following order is passed:
a) The impugned communication dated 28.06.2019 bearing reference 'C.No.ACLFS6523P/CC 2(4)/2019-20' is set aside. To be noted, impugned communication is set aside solely for facilitating the writ petitioner to get an opportunity to cross examine and it is not set aside on merits. In other words, this Court is not expressing any view or opinion on merits of the matter.
b) By consent of both sides, it is now agreed that the date, time and venue for cross examination of aforesaid two individuals namely Shri.S.Nagarathinam and Shri.S.Murugesan shall be 01.08.2019 (Thursday), at 12.00 Noon in the office of the Deputy Commissioner of Income Tax, Central Circle-2(4), Investigation Wing, Room No.111, 1st Floor, No.46, Mahatma Gandhi Road, Chennai – 34.
c) It is submitted on instructions that the writ petitioner's lawyer / Advocate shall cross examine the aforesaid two witnesses on the aforesaid date, time and venue.
d) After cross examination in the aforesaid manner, it is open to the respondent to reissue the impugned communication with regard to aspects other than cross examination aspect.
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2019 (7) TMI 1872 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH-II
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - whether there is a pre existence of dispute as between the parties even before issue of the Section 8 demand notice by the Petitioner, because the existence of such a dispute will make the present application non maintainable taking into consideration the scheme of the code and well laid down judicial precedents since coming into force of IBC, 2016? - HELD THAT:- Taking into consideration the agreement as entered into between the parties as well as indemnity bonds furnished thereunder by the Petitioner to the respondent in relation to its performance as well as the correspondences exchanged between the parties, particularly the one dated 10.12.2012 sent by the respondent to the Petitioner making the petitioner solely responsible for the losses occasioned on account of storage and handling being the services expected to be performed by the Petitioner under the agreements with the corporate debtor and the due performance of which there seems to be a pre existing dispute falling within the confines of Section 5(6) of IBC, 2016.
Taking into consideration the decision of Mobilox Innovations Private Limited Vs Kirusa Software Private Limited. [2017 (9) TMI 1270 - SUPREME COURT]. Thus, the respondent having established a plausible contention and which contention cannot be considered as a mere sham or illusory this petition cannot be entertained under the provisions of IBC, 2016.
The petition is not maintainable and hence stands dismissed.
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2019 (7) TMI 1871 - ITAT MUMBAI
Corrigendum order by making correction in the Assessee’s company name and PAN number - HELD THAT:- As gone through the application and found that there is a typographical error on the page 1 and page 2 of the said order, dated 20/06/2018, passed by the Tribunal in the aforesaid two appeals. The correct assessee’s name is "Meridian Chem Bond Private Ltd. and PAN number is AAACM7299J.", however, it has wrongly been typed as "Meridian Chem Bond Purchase Ltd." and "PAN. AACR1789G" in the cause title of the aforesaid order. Therefore, we hereby issue this corrigendum and direct that the assessee’s company name is ‘Meridian Chem Bond Private Ltd. and PAN number is AAACM7299J instead of "Meridian Chem Bond Purchase Ltd." and "PAN. AACR1789G"
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2019 (7) TMI 1870 - MADRAS HIGH COURT
Transfer of registration file of the petitioner to the Assisstant Commissioner (CT), Kodambakkam Assessment Circle - re-organization of assessment circle - Form WW filed not verified - allegation is that some of the objections raised by the petitioner before the Assessing Officer has not been considered - principles of natural justice - HELD THAT:- Taking into consideration the limited prayer sought for and also non consideration of Form WW, this Court remits back the matter to the respondent for fresh consideration, in order to give an opportunity to the petitioner to put forth their case. The impugned assessment order shall be treated as a show cause notice, to which the petitioner shall submit their objections within a period of 15 days from the date of receipt of a copy of this order. The respondent shall pass fresh orders after giving due opportunity of personal hearing to the petitioner. It is made clear that the petitioner shall co-operate, whenever an opportunity of personal hearing is extended to him.
Petition allowed by way of remand.
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2019 (7) TMI 1869 - MADRAS HIGH COURT
Order of Single Judge directing the appellant to file necessary objection to the show cause notice issued by the respondent - HELD THAT:- We permit the appellant to make suitable reply to the impugned show cause notice dated 21.03.2018 within a period of two weeks from the date of receipt of a copy of this order. On such receipt, the respondent shall pass appropriate orders within a period of two weeks thereafter.
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2019 (7) TMI 1868 - ITAT MUMBAI
Exemption u/s 11 - withdrawing registration granted u/s 12A - CIT-E cancelling registration granted u/s 12A by invoking his powers u/s 12AA(3) - sole reason given by the Ld. CIT(E) for cancellation of registration is that the assessee has collected ‘Building fund’ from parents/students, thereby, violated provisions of Prohibition of Capitation Fee Act (Government of Maharashtra), 1987 - HELD THAT:- As gone through provisions of the Maharashtra Educational Institution, Prohibition of Capitation Fee Act (Government of Maharashtra), 1987 and rules and regulation. As per section 5 of the Principle Act, any trust or institution is authorised to collect voluntary donations from any benevolent persons for the purpose of development of trust/institution, but such donations shall not be collected in pursuance of admission to a course in a college/schools run by the trust or institution.
In this case, on perusal of details available on record, it is abundantly clear that the donations collected from the parents/students in the form of building funds is voluntary and such funds have been applied for the purpose of development of buildings and other infrastructures. It is also not in dispute that the donations including fees collected from students is not in excess of prescribed fees fixed by the statement government - CIT(E) erred in cancelling registration granted under section 12A by invoking his powers under section 12AA(3) of the IT Act, 1961 only for the reason of receipt of donations from students/parents without appreciating the fact that such donations are voluntary and also within the limit prescribed limit fixed by the competent authority.
DIT(E) in his order except stating that the trust is collecting donations being 'Building Fund’ from students/parents has not made any observations with regard to activities of the trust, if any, as referred to in section 11 or 13 of the IT Act, 1961. Unless, the Ld. DIT(E) brings on record any evidences to prove that the objects of the trust are not charitable in nature and its activities are not carried out in accordance with objects, then merely for the reason of collection of donations from students, that too when such donations are within the limit at prescribed fees fixed by the competent authority, registration granted under section 12A cannot be cancelled by invoking his powers under section 12AA(3) - Decided in favour of assessee.
Exemption u/s 11 - Once registration granted under section 12A is available to the assessee from the date of registration including for the impugned assessment year, then the AO was incorrect in denying the exemption under section 11 of the Income Tax Act, 1961. Therefore, we direct the AO to allow the benefit of exemption claimed under section 11, in respect of income derived from property held under trust subject to other provisions of the IT Act, which is applicable to the assessee.
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2019 (7) TMI 1867 - SUPREME COURT
Inherent jurisdiction of the Court under Section 482 of CrPC - attempt to murder - HELD THAT:- In this case, the High Court rightly refused to quash the criminal complaint, observing that it can exercise power under Section 482 of the CrPC only in rare cases. The power to quash the proceedings is generally exercised when there is no material to proceed against the Petitioners even if the allegations in the complaint are prima facie accepted as true. The High Court in effect found, and rightly, that the allegations in the complaint coupled with the statements recorded by the learned Magistrate had the necessary ingredients of offences under Sections 307, 323, 427, 447 and 506(2) read with Section 34 of the IPC.
This is not a fit case to quash the criminal proceedings - Appeal dismissed.
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