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2020 (7) TMI 765
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rectification of mistake done beyond prescribed time limit - applicability of time limitation - HELD THAT:- A complete procedure and eligibility has been prescribed for availing the benefit of the scheme. However, as per section 128 within 30 days of issuance of statement, designated committee, suo motu, is empowered to correct an arithmetical and clerical error, which is apparent on the face of record. No doubt in the instant case while accepting the declarations submitted by the petitioner issued statements vide exhibits P8, P9 and P10 dated February 28, 2020. The rectification orders exhibits P12 to P14 dated June 2, 2020 are beyond 30 days. Though the petitioner was entitled to the benefit of the scheme as per originally issued SVLDRS-3 but, this court cannot remain oblivious that many assessees availed the benefits of scheme and owing to such fact, the designated committee could not notice the manual returns exhibits P1 to P3 were ever filed and by accepting declarations, SVLDRS-3 were issued. The petitioner had also attempted to pay tax as reflected in exhibit P8. But on noticing non-filing of the return by taking the aid of the provisions 128 or general law of the rectification, rectified SVLDRS-3 was issued.
Even section 129 of the Scheme envisages that every discharge certificate issued under 126 with respect to the amount payable shall be conclusive but sub-section (2)(c) of section 129 opens with a non obstante clause that in a case of a voluntary disclosure where any material particular furnished in the declaration is subsequently found to be false, within a period of one year of issue of the discharge certificate, it shall be presumed as if the declaration was never made.
Petition dismissed.
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2020 (7) TMI 764
Disallowance of interest - advance was paid out of interest-free funds comprising Reserves & Surplus of the company - why proportionate interest u/s 36(1)(iii) of the Act should not be disallowed as there seems to be no business connection between the advance paid and the business of assessee? - HELD THAT:- The undisputed facts are that the assessee has sufficient interest-free funds available with it as it is a listed company and has huge funds available with it. Even during the year, assessee has earned profit - Therefore, we are not in a position to concur with the conclusions drawn either by the CIT(A) or the Assessing Officer on this issue. The tax authorities cannot be allowed to sit on the chair of a businessman and decide what is right or wrong for the business.
In this case, we note that the assessee’s own funds are far more than the advance paid for booking of bungalow as is clear from the facts given hereinabove. Therefore both the authorities below have grossly erred while deciding the issue.
The case of assessee is squarely covered by the decision in the case of CIT vs Reliance Industries Ltd. [2019 (1) TMI 757 - SUPREME COURT] wherein has confirmed the order of PHALTON SUGAR WORKS LIMITED VERSUS COMMISSIONER OF WEALTH-TAX [1993 (8) TMI 41 - BOMBAY HIGH COURT] upholding the order of Tribunal wherein it has been held that where interest-free funds available with assessee were sufficient to meet the investments, it could be presumed that the investment was made from interest-free funds available with the assessee. We, therefore, respectfully following the same, set-aside the order of ld. CIT(A) and direct the Assessing Officer to delete the disallowance - Appeal of assessee is allowed.
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2020 (7) TMI 763
Approval of Scheme of Merger - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- All necessary instructions regarding holding and convening of meeting duly complied with - necessary instructions were given regarding issuance and service of various notices - all fomalities to be complied with.
The scheme is approved - application allowed.
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2020 (7) TMI 762
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - existence of debt and dispute or not - Section 5(8)(f) explanation read with Section 5(7) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Issue notice. Mr. Manik Dogra, Advocate accepts notice on behalf of the Respondent. No further notice need be issued to him. He may file reply-affidavit within two weeks. Rejoinder, if any, may be filed within two weeks thereof.
List the appeal ‘for admission (after notice)’ on 4th September, 2020.
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2020 (7) TMI 761
Reconsideration of Resolution Plan - application of mind by Adjudicating Authority before approving or rejecting a Resolution Plan - It was held by NCLAT that Impugned Order regarding approval of Resolution Plan need not be interfered - HELD THAT:- There are no ground to interfere with the impugned judgment - appeal dismissed.
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2020 (7) TMI 760
Demand of Outstanding dues including taxes - respondent-Company has gone in liquidation - HELD THAT:- As Official Liquidator has filed a report that the Respondent-Company (Moser Bear India Ltd.) is not financially viable and is under liquidation in proceedings pending before the National Company Law Tribunal. Even if the Appellant-Revenue were to succeed, the Official Liquidator is not in a position to pay the tax amount involved in these appeals.
Indisputedly, the respondent-Company has gone in liquidation. The Company in liquidation is not in a position to pay its outstanding dues including taxes. Moreover, the tax effect in the concerned appeals is just over ₹ 2,00,00,000/- (Rupees Two Crore Only).
Taking overall view of the matter, we deem it appropriate to dispose of these appeals, leaving the question of law open, to be decided in appropriate case. Ordered accordingly.
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2020 (7) TMI 759
Seeking disclosure of details of the income tax returns of the husband of appellant - Section 8(1)(j) of the RTI Act, 2005 - whether the appellant claiming to be the legally wedded wife of Mr. G H Sharanappa is entitled to seek details of his income tax returns? - HELD THAT:- The decision dated 01-07-2009 of the Hon’ble High Court of Delhi in Vijay Prakash v. UOI & others [2009 (7) TMI 1364 - DELHI HIGH COURT] wherein it has been clarified that in a private dispute between husband and wife, the basic protection afforded by virtue of the exemption from disclosure enacted under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in ‘public interest’. In the matter at hand, the appellant has not succeeded in establishing that the information sought is for larger public purpose - Since filing of the Income Tax Returns by an individual with the Income Tax Department is not a public activity and rather it is in the nature of an obligation which a citizen owes to the State viz. to pay his taxes, this information cannot be disclosed to the appellant in the absence of any larger public interest.
From the words circumscribed under Section 2(n) of the RTI Act, 2005, it is vividly clear that any person other than the citizen making a request for information can be termed as ‘third party’. Therefore, Mr. G H Sharanappa being a person other than the RTI applicant surely comes within the definition of ‘third party’. Moreover, the CPIO has also not intended to disclose the information treating it as confidential and has rather pleaded that there is no public interest in the matter. This Commission also does not find any public interest which outweighs the harm caused in its disclosure.
This Commission after considering the factual matrix of the case is of the opinion that in the absence of any larger public interest in the matter, the appellant is not entitled to seek the details of the Income Tax Returns filed by the third party, Mr. G H Sharanappa which is exempted u/Section 8(1)(j) of the RTI Act, 2005 - considering the aspect of marital discord between the husband and wife vis-à-vis her right of maintenance, this Commission is of the opinion that the respondent should consider providing only the limited information of the last six years i.e. the numerical figure(s) of the ‘gross income’ of her husband, Mr. G H Sharanappa, within a period of 15 working days from the date of receipt of this order.
Appeal disposed off.
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2020 (7) TMI 758
Seeking direction to Adjudicating Authority (National Company Law Tribunal) Mumbai Bench to decide the fee of Resolution Professional and cost of the Corporate Insolvency Resolution Process as incurred by the Resolution Professional and to be borne and paid by the ‘Bank of India Ltd.’ (Financial Creditor) - HELD THAT:- On a query, learned counsel for the Appellant replied that the Resolution Professional has worked for about three months. Since the expenses have been allowed in full and the consolidated amount of ₹ 5 Lakh + GST has been allowed as fee of the Resolution Professional for entire period, we find the same is not unreasonable. Fixation of fee is not a business decision depending upon the commercial wisdom of the Committee of Creditors.
Appeal dismissed.
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2020 (7) TMI 757
Invocation/encashment of Bank Guarantee - within the scope of Moratorium or not - HELD THAT:- The recital of guarantee clearly provides that the guarantee in question is a bank guarantee and not a performance guarantee as contended by the counsel for the applicant. In the case on hand the bank guarantee is offered to the seller, (the Applicant) on account of purchasing goods by the borrower viz., CD on credit and the bank viz., the non- Applicant No. 2 hand given a bank guarantee to the effect that it will pay certain unsettled sum on behalf of the buyer (CD) to the seller i.e. the Applicant. Once this position becomes clear then the bank guarantee does not fall within the purview of the proviso to Section 3(31) of IBC 2016, because a bank guarantee cannot be described as performance bank guarantee. Therefore, the contention of the counsel for the applicant that the guarantee is a performance bank guarantee stands rejected.
Whether the bank guarantee in question can be invoked during the moratorium declared under Section 14(1) of IBC 2016? - HELD THAT:- As per section 14(1)(c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is prohibited. It is well settled position that the bank guarantee falls within the purview of the definition of "Security interest" as defined under Section 3(31) of the IBC, which is already quoted. Therefore, during the moratorium the bank guarantee cannot be invoked as the same is prohibited under Section 14(1)(c) of the IBC.
Application dismissed.
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2020 (7) TMI 756
Adjustment of refund amounts due towards the amounts found payable under the Amnesty Scheme - refund under Kerala VAT Act - HELD THAT:- Although it is the specific case of the learned Government Pleader that, under the Amnesty Scheme, there is no provision for an adjustment of refund amounts towards amounts found payable by an applicant seeking the benefit of Amnesty Scheme, the adjustment in question does not in any manner offend the Amnesty Scheme or do violence to its language.
The department has not preferred any appeal against the said order so as to cast any doubt on the entitlement of the petitioner for the refund amount. In that scenario, when amounts are liable to be paid by the petitioner to the department for the purposes of getting the benefit of the Amnesty Scheme, an adjustment of the refund amounts due to the petitioner towards whatever amount is found payable by the petitioner, would not in any manner offend the terms of the Scheme because it is simply an adjustment towards the payment to be made under the Scheme.
Petition allowed.
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2020 (7) TMI 755
Release of detained goods - applicability of ‘Electronics and IT Goods (Requirement for Compulsory Registration) Order (CRO), 2012’ - grievance of the petitioner firm is that the Customs authorities are refusing to release these two later consignments despite completion of required formalities - It was held that there is no reason as to why the later consignments of the petitioner firm, which have been withheld, should not be treated alike.
HELD THAT:- Learned counsel for the respondent shall file his reply within two weeks from today. List after two weeks.
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2020 (7) TMI 754
Accrual of income - retention money on contract included in the Assessee's income for the AY.2009-10? - whether tribunal wrong in holding that the retention amounts cannot be considered as income of the Assessee because such amounts were still to be received, when the Assessee follows the Mercantile System of Accounting and income is to be assessed on "accrual basis"? - HELD THAT:- Assessee's own case for the previous Assessment Year 2008-2009 has been decided in favour of the Assessee [2014 (11) TMI 1233 - MADRAS HIGH COURT]. Since the issue raised in this appeal had already been decided against the department by the Supreme Court in Commissioner of Income Tax v. M/s Ignified Boilers India Ltd. [2006 (7) TMI 726 - SC ORDER] and in Commissioner of Income Tax v. East Coast Constructions & Industries Limited [2006 (12) TMI 574 - SC ORDER] no question of law arises for consideration. Decided in favour of the Assessee
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2020 (7) TMI 753
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - exclusion of limitation period got extended as period consumed in the course of such proceedings in computing the limitation period - applicability of Section 22(5) of the SICA, 1985 - HELD THAT:- It is noted that there is no dispute as regard to supply of goods, quality or price thereof. It is also noted that confirmation of outstanding amount as on 31.12.2004 was made on 11.01.2005 by the Corporate Debtor. It is further noted that no reply either to notice served u/ s 8 of Insolvency & Bankruptcy Code, 2016 or to this application has been filed by the Corporate Debtor. Admittedly, the Corporate Debtor was registered with BIFR under SICA, 1985 in the year 2005 and during the course of those proceedings the debt payable by the Corporate Debtor got acknowledged. Thus, there remains no doubt as regard to the amount of outstanding debt. The only aspect which we require to examine is whether debt is due and payable in law or in fact i.e. it is not barred by limitation.
It is apparent that this sub-section (5) is applicable for entire Section 22 because of the expression "this Section" used in this sub-section. Further, this sub-section provides for automatic exclusion of the period of suspension of proceedings or remedy for the purpose of computation of limitation for the enforcement of any right, privilege, obligation or liability u/s 22(1) or by virtue of declaration in sub-section 3 of Section 22 - there are no hesitation in holding that extension of limitation based on exclusion of suspension period as prescribed in 22(5) of SICA, 1985 is applicable only to suit for recovery of money and not to an application filed u/ s 9 of IBC, 2016. In the instant case, the right to sue admittedly arose in 2004 and acknowledgement of debt was made on 11.01.2005. Application u/ s 9 of IBC, 2016 has been filed on 24.11.2017, hence, it is clearly barred by limitation.
It emerges from the perusal of the Section 22(1) of SICA, 1985 is that there is exception or exit route to such automatic suspension i.e. proceedings or suit as specified u/ s 22(1) can be instituted or proceeded further with the consent of BIFR/AAIFR. This means that right to remedy is available. Thus, the question arises, in case, a person chooses not to exercise that right/ remedy, can such person still claim exclusion of suspension period for the purposes of computation of limitation. In case, a person who is not a part of such reference and does not exercise such right/ remedy with consent, then, in our considered opinion, such person is not entitled to claim extension of limitation period by virtue of exclusion of period of suspension because in such situation he sits on the fence and watching and not bothered of limitation to secure his right/remedy. Doctrine of latches also applies in this case.
In the present case, the Operational Creditor was part of scheme under consideration of BIFR and had also filed a suit no. 315/2009 on 23.03.2009 before Civil Judge, Vadodara seeking a decree for the impugned sum which is still alive as the permission to withdraw the same with a liberty to file afresh has been granted by the Civil Court vide its order dated 05.11.2019. The Applicant sought consent of BIFR by filing MA No. 603 of 2010 which was allowed by the BIFR on 20.11.2012 with the condition that decree awarded by the Civil Court will not be executed without prior approval of BIFR - it is the date of consent by BIFR which is to be considered for the purpose of computation of limitation period even though appeal was filed against such consent for the reason that appeal is continuation of original proceedings.
In the present case, the Corporate Debtor confirmed the outstanding balance as on 11.01.2005 though right to sue accrued on earlier date, hence, limitation has to be computed from 11.01.2005. Reference u/s 15 of SICA 1985 was made in 2005 (which has been numbered as 83 of 2005) but neither date of filing nor date of registration thereof is on record, hence, we are left with no option but to estimate date of filing/registration as per the provisions of Section 15 of SICA, 1985 which provide that a reference could be made only on the basis of last Audited Balance Sheet. In the present case, the reference has been made admittedly on the basis of Audited Financial Statement on 31.03.2005 which could have been audited and approved as per the provisions of Companies Act, 1956 latest by 30.09.2005, hence, a reference could be made only thereafter - if we exclude period from filing of reference i.e. 01.10.2005 till 20.11.2012, the time lirnit for filing a fresh suit/ application comes to an end in early 2015 itself after excluding period from 11.01.2005 till 30.09.2005. We further note consent of AAIFR has been taken in Appeal No 76 of 2014 vide order dated 17.09.2014. Even when, this date is considered, the time limit for filing of a fresh suit/ application comes to an end on 06.01.2017 if we take the period from filing of reference i.e. 01.10.2005 till such consent order of AAIFR on 17.09.2014 after excluding the period from 11.01.2005 till 30.09.2005. We again state that even assuming that such extended period is available to present application which has been filed on 24.11.2017, then also, such application is time barred as having been filed after expiry of extended period of limitation. Thus, Considering the legal aspects as well as factual matrix, we hold that in all possible situations, the application remains time barred.
The Operational Creditor exited from rehabilitation process of the Corporate Debtor while such rehabilitation was under consideration of BIFR/AAIFR for the simple reason that a substantial hair-cut had to be born. The object of SICA, 1985 was to rehabilitate the sick entity which is also an object of IBC, 2016. In the present case, there is no dispute that the corporate debtor is having financial crunch/ sickness for very long period. The Operational Creditor is also pursuing separate suit for recovery of its money which is still alive. Can such person be allowed or considered eligible for initiating insolvency proceedings having conducted in this fashion. Thus, for this reason also, this application is not maintainable.
Application dismissed.
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2020 (7) TMI 752
Chargeability of late fee under section 234E - whether Late fee can be levied prior to 1.6.2015, i.e. prior to enactment of section 234E? - diversified views of various High courts on issue - CIT(A) has decided the issue by following the decision of honourable Gujarat High Court in case of Rajesh Kourani [2017 (7) TMI 458 - GUJARAT HIGH COURT] - Though CIT(A) has noted the decision of Sri Fatheraj Singhvi[2016 (9) TMI 964 - KARNATAKA HIGH COURT] which is in favour of the assessee he has chosen not to follow the same also distinguished the decision of honourable Supreme Court in the case of Vegetable Products Ltd. [1973 (1) TMI 1 - SUPREME COURT] by referring that the said decision was in connection with penalty - HELD THAT:- CIT appeals has totally erred in distinguishing the decision of honourable Supreme Court in the case of vegetable products. The ratio arising from the said decision is that if two constructions are possible the one in favour of assessee should be applied. In the present case we note that the decision of honourable Karnataka High Court is in favour of the assessee. Accordingly we follow the said decision on the touchstone of ratio arising from honourable Supreme Court decision in the case of Vegetable Products Ltd. (supra). No decision contrary to this from the honourable jurisdictional High Court has been brought to our notice. Furthermore as referred by the assessee in grounds of appeal the issue is also covered in favour of the assessee
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2020 (7) TMI 751
Rectification of mistake - Addition u/s 68 - cases relied upon were ignored to be considered - company was dealing in providing the accommodation entries - addition was raised on account of third party statement - assessee alternate plea was that the assessee was earning the commission by providing accommodation entries, the only amount of commission could be added to the assessee’s taxable income and not entire amount of transaction - HELD THAT:- As stated that the applicant used to issue accommodation entries on commission basis @ 0.02% to 0.10%. On the basis of the said information, the noticed u/s 153C of the Act was issued. The assessment u/s 153C was completed treating the 4% as income. Subsequently, the PCIT-4 passed the order u/s 263 of the Act and thereafter the assessment u/s 144/142(1) r.w.s. 153C of the Act was competed by assessing the 100% addition. CIT(A) upheld the disallowance.
The applicant/appellant had produced the order of co-ordinate bench in the case of M/s. Chaitali Sales Agency Pvt. Ltd and Gold Star Finvest Pvt. Ltd. The said cases were related to same search in which the commission was assessed @ 0.15% of total deposits but the alternate contention was not dealing with the Hon’ble ITAT, therefore, the present Miscellaneous Application has been filed.
After perusing the order dated 25.03.2019, we noticed that the decisions in the case of Chaitali Sales Agency Pvt. Ltd. and Gold Star FinvestPvt. Ltd. were not dealt with. Subsequently these decisions were confirmed by the Hon’ble Bombay High Court. Applicability of these cases may effect the merits of the case also. So by not dealing these cases, there is mistake apparent on record, therefore, we recall the order dated 25.03.2019. Registry is directed to refix the case in due course of time.
These Miscellaneous Applications are hereby also allowed accordingly.
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2020 (7) TMI 750
Licit acquisition and possession of the exotic animals/birds - Issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced "Voluntary Disclosure Scheme" - HELD THAT:- Apparently, by introducing this "Voluntary Disclosure Scheme" the Central Government has given an option to all citizens to voluntarily declare their stock of exotic species named under the Appendices I, II and III of CITES, if any with them, within six months from the concerned date in June, 2020. The Scheme requires citizens to submit themselves to the provisions of the scheme and to thereafter maintain the statutory record as prescribed under the Scheme for any addition or reduction in declared stock of exotic species. This would enable the Government to have a unified information system available for stock of exotic species at the State/Central level. This would also enable the Central Government to introduce further provisions regulatory as well as penal, after giving this window of six months for voluntary disclosure by allowing immunities only to those, who opt to file their voluntary disclosure declaration within this six months window. Immunity is not provided to the declarants opting to disclose the stock after this limited window of six months.
After expiry of this six months' window, the Scheme clearly states that-". For any declaration made after 6 months of the date of issue of this advisory, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations."
It is settled law that Government shall speak in same voice. The Central Government, Ministry of Environment, Forest and Climate Change, through Wildlife Division has already introduced the "voluntary disclosure scheme" in wider public interest by announcing immunity for a limited window of six months to promote and invite voluntary disclosure declaration from all concerned. The scheme so introduced by the Central Government shall be promoted by all the departments in wider public interest. During this limited interregnum of six months, any inquiry or action against procession, breeding or transportation of exotic species within India by officers of any government agency or department, whether of Central or State, would be wholly illegal, arbitrary, unreasonable, unsustainable and would defeat the purpose of the voluntary disclosure scheme. In this period of six months, whosoever declares the stock of exotic species and thereby submits himself to registration and further requirements of the scheme, shall have immunity from any inquiry into source of licit acquisition or possession of the voluntarily declared stock of exotic species - thus, dragging the declarant and chasing him for subjecting him to any penal or confiscatory measures under any enactment in connection with such timely and voluntarily declared stock of exotic species would be highly unreasonable, arbitrary and illegal, being contrary to legitimate expectation.
Thus, no such directions as sought by the petitioner can be issued - petition dismissed.
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2020 (7) TMI 749
Seeking directions to restrain the 2nd petitioner from exercising powers of Managing Director of the company and to change the signatories of the bank accounts of the companies - seeking to appoint an Advocate Commissioner to act as an interim Managing Director - Challenge on the ground that the running company is brought to a standstill by the action of the NCLT interdicting financial transactions till 7.8.2020, without any justification and without hearing the counsel appearing for the company and the Managing Director - HELD THAT:- It is an admitted fact that the company petitions nine in number were pending before the NCLT. In the impugned order itself, the NCLT refers to the prayers in the company petitions and post the matter for hearing of the I.A. to 7.8.2020. The learned counsel for the petitioners has submitted that the proper course of action is to file an appeal before the NCLAT. It is submitted that such a course of action is presently rendered impossible due to the prevailing pandemic situation in the country and the petitioners are disabled from travelling to Delhi to prefer the appeal in view of the restrictions and the rising number of cases in the country.
Though it is contended by the learned counsel appearing for the respondents that the writ petitions are not maintainable without the NCLT on the party array, in the facts and circumstances of the instant cases, especially in view of Ext.P6 request for adjournment made by the counsel for the petitioners before the NCLT, the passing of an order interdicting all financial transactions by running companies would create serious prejudice to the company. The technical objection raised that the NCLT is not made a party to these proceedings, according to me, should not stand in the way of the consideration of these writ petitions in the peculiar circumstances prevalent at present.
The petitioners should be permitted to carry out the dayto- day financial transactions as are necessary for the conduct of the companies - Petition ordered.
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2020 (7) TMI 748
Maintainability of appeal before National Company Law Appellate Tribunal (NCLAT) - the NCLAT has closed its functioning as one of its employees is suffering from Covid-19 - HELD THAT:- The doors of justice cannot be closed. Let NCLAT find out a way for online hearing in such a situation - the NCLAT is requested to start the hearing of the matter on interim stay, immediately on reopening.
SLP dismissed.
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2020 (7) TMI 747
Computation of capital gain - Disallowance of indexed cost of improvement claimed on sale of plot - computing the long term capital gain as against long term capital loss computed by the assessee - whether CIT(A) has erred in holding that agreement with contractor and his affidavit in respect of expenditure incurred on cost of improvement looks an afterthought story without any material & basis - HELD THAT:- The assessee owns a plot of land measuring 200 sq yards and a part of the said plot measuring 133.33 sq yards, has been sold during the year. On perusal of the sale deed so executed by the assessee, the description of the property sold is shown as residential plot no. 10 Plot No.10, Bajrang Nagar, Village- Cha Getor, Tehsil-Sanganer, District Jaipur and even the site plan attached with the sale deed depicts the plot of land and doesn’t show any constructed area thereon. At the same time, there is averment towards the end of the said sale deed that in the plot so sold, there is constructed area of 900 sq feet. We therefore find inconsistency in the sale deed so executed so far as the exact description of the property is concerned.
It unusual that construction of 900 sq feet as so claimed by the assessee has taken around eight months time to construct and thereafter, as soon as construction was completed, the assessee has sold the property in less than a month. If the intention of both the parties was to sell and purchase a constructed property, in such a scenario, the description of the property so stated in the sale deed should have been a constructed property instead of a plot of land. Further, what stops the assessee in submitting the affidavit of buyer and the photographs of the property in support of its claim rather than merely relying on a third party averments. Therefore, the third party averments can come to the aid of the assessee once it is proved that there was actual construction and then, in support of cost of construction, such averments may be examined along with proof of actual payment which again is absent in the instant case.
We are of the considered view that the assessee has failed to discharge the necessary onus placed on him in support of his claim of construction on the property at the time of sale and cost of construction as so claimed has therefore rightly been rejected by the lower authorities and the matter is decided against the assessee and in favour of the Revenue.
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2020 (7) TMI 746
Maintainability of petition - statutory remedy to file an appeal before the appellate authority available - Validity of assessment order - petitioner submits that the petitioner instead of filing an appeal, has approached this Court and as such, some delay has occurred - HELD THAT:- Once a statute provides for effective remedy, the High Court must refrain from exercising jurisdiction under Article 226 of the Constitution of India. In that view of the matter, there is no reason to examine correctness of the assessment order by this Court.
The Writ Petition stands disposed of granting liberty to the petitioner to approach the appellate authority by filing an appeal. If such appeal is filed in accordance with law within ten (10) days, the appellate authority may examine the same and pass appropriate order. As an interim measure, to enable the petitioner to file an appeal, the respondents are restrained from taking any coercive step against the petitioner for a period of two weeks - Petition closed.
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