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Showing 101 to 120 of 14810 Records
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2013 (12) TMI 1666
Issues Involved:
1. Collusive Agreement and Bid Rigging
2. Penalty under Section 27 of the Competition Act, 2002
Summary:
Collusive Agreement and Bid Rigging:
The judgment addresses the appeals of 44 companies found guilty of contravening Section 3(3)(d) of the Competition Act, 2002, for engaging in bid rigging. The CCI initiated suo-motu proceedings based on information from M/s. Pankaj Gas Cylinders Ltd. regarding unfair conditions in a tender floated by IOCL for LPG cylinders. The Director General (DG) found a pattern of identical or near-identical bids among the 50 qualified bidders, indicating collusion. The DG's investigation revealed that the LPG Cylinder Manufacturers had formed an association and held meetings just before the tender submission, where prices were likely fixed. The CCI considered various factors such as market conditions, small number of suppliers, repetitive bidding, and identical products, concluding that these factors suggested collusive bidding. The CCI's detailed analysis of bids across different states showed identical or near-identical pricing, reinforcing the finding of collusion. The CCI rejected arguments that price parallelism in an oligopolistic market was natural, emphasizing the presence of plus factors like the association and meetings. The judgment confirms the CCI's findings of bid rigging and collusion among the appellants.
Penalty under Section 27 of the Competition Act, 2002:
The CCI imposed a penalty of 7% of the average turnover of the last three years on the guilty companies. However, the judgment criticizes the CCI for not providing reasons for choosing the 7% penalty and for applying it uniformly without considering individual circumstances. The judgment highlights the need for the CCI to consider relevant turnover, mitigating factors, and the doctrine of proportionality. The matter is remanded to the CCI for reconsideration of the penalties, with the direction to hear the parties and decide within three months. The interim order of staying the penalties upon depositing 10% and furnishing security for the rest remains in effect until the CCI's final decision.
Separate Judgment by Shri Prasad:
Shri Prasad, in his minority order, found two companies, JBM Industries Ltd. and Punjab Cylinders Ltd., guilty of contravening Section 3(3)(d) and Section 3(3)(a) of the Act, disagreeing with their exoneration by the majority. He concurred with the majority on the guilt of the other appellants and the penalty under Section 27 of the Act.
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2013 (12) TMI 1665
Issues involved: Two appeals filed by the Revenue against the order of CIT(A) quashing penalties imposed u/s 271D & 271E for the assessment year 2005-06.
Issue 1 - Penalty u/s 271D:
The AO imposed a penalty u/s 271D for accepting cash loans in contravention of IT Act provisions. The CIT(A) found the penalty order erroneous and perverse as it related to transactions from different assessment years. The AO's action was deemed invalid as penalties for specific assessment years must be initiated within the prescribed time limits. The Tribunal upheld the CIT(A)'s decision, stating that penalties must be imposed based on facts of the relevant assessment year.
Issue 2 - Penalty u/s 271E:
Similarly, a penalty u/s 271E was imposed for repaying cash loans in contravention of IT Act provisions. The CIT(A) dismissed the penalty considering the same facts and arguments as in the previous case. The Tribunal upheld the dismissal, reiterating that penalties must align with the facts of the assessment year in question.
The Tribunal dismissed both appeals by the Revenue, upholding the CIT(A)'s decisions to quash the penalties imposed u/s 271D & 271E for the assessment year 2005-06.
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2013 (12) TMI 1664
Issues involved: Non-deduction of tax on payment to a foreign company as agency commission.
Summary:
The appeal was filed by the revenue against the order of the Income Tax Appellate Tribunal regarding non-deduction of tax on payment to a foreign company as agency commission. The assessing officer disallowed the agency commission amount as it was not fully paid and not an allowable deduction. The Commissioner of Income Tax (Appeals) held that tax should have been deducted on such payments in the foreign country. However, the Tribunal found that since the payment was to be made in a foreign country in foreign currency, it cannot be considered as income accrued in India, following the Supreme Court judgment in GE Technology Centre (P.) Ltd. v. CIT [2010] 327 ITR 456 (SC).
The Tribunal referred to the responsibilities under the contract which stated that the work was to be done outside the country and payment to the agent was to be made in a foreign country. The Tribunal held that no part of the income of the foreign company is taxable in India. The Supreme Court's interpretation of Section 195(1) was also considered, emphasizing that the payer becomes an assessee in default only when failing to fulfill the statutory obligation. The Tribunal found that the assessee was not liable to deduct tax on the transaction with the foreign company.
The Delhi High Court in CIT v. EON Technology (P.) Ltd. [2012] 343 ITR 366 also supported a similar view. Since the payment in question related to the assessment year 2007-08, the amendments made by the Finance Act, 2012 were deemed inapplicable. The appeal was dismissed as no substantial question of law arose for consideration.
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2013 (12) TMI 1663
Issues involved: Determination of demurrage charges for export cargo, utilization of more than 20% of Cenvat credit for service tax payment, imposition of penalty.
Issue 1: Demurrage charges for export cargo
The Appellant, operating a Container Freight Station, collected demurrage charges for export cargo lying beyond 7 days. The Appellant paid the entire amount of service tax on storage and warehousing charges for the said cargo before proceedings were initiated. The penalty imposed by the Commissioner (Appeals) was challenged by the Appellant. The Tribunal noted that the export cargo beyond 7 days was treated as storage and warehousing service by the Appellant. While there was no clarity on this issue, the Tribunal acknowledged the Appellant's bonafide belief that service tax need not be paid on such cargo. The Tribunal invoked Section 80 of the Finance Act for waiver of penalty due to reasonable cause for non-payment of service tax in this scenario.
Issue 2: Utilization of Cenvat credit
Regarding the utilization of more than 20% of Cenvat credit for service tax payment, the Tribunal found that it was not a case of duty evasion. The ST3 returns filed by the Appellant could determine if the 20% limit was exceeded. The Commissioner viewed the utilization as a technical error, and since there was no appeal by the Revenue against this observation, it was considered a technical error. Consequently, a nominal penalty of &8377; 10,000 was deemed appropriate for exceeding the Cenvat credit utilization limit. The penalty imposed on the Appellant was reduced to this amount. The appeal was decided in favor of the Appellant on these grounds.
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2013 (12) TMI 1662
Disallowance of “Provision for leave encashment” u/s 43B(f) - Held that:- As decided in THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1 (1) , THRISSUR. VERSUS M/S. KERALA FEEDS LTD., [2013 (9) TMI 1212 - ITAT COCHIN] Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case Civil Appeal of the Department is allowed. We further make it clear that the assessee would, during the pendency of this Civil Appeal, pay tax as if Section 43B(f) is on the Statute Book but at the same time it would be entitled to make a claim in its returns.
We set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine this issue afresh in accordance with the decision rendered by Hon’ble Supreme Court in the case of M/s Exide Industries Ltd COMMR. OF INCOME TAX & ORS Versus M/s EXIDE INDUSTRIES LTD. & ANR. - [2009 (5) TMI 894 - SUPREME COURT] - Appeal filed by the assessee is treated as allowed for statistical purposes.
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2013 (12) TMI 1661
Issues Involved:
1. Transfer pricing adjustment
2. Comparability analysis
3. Aggregation of international transactions
4. Inclusion of services income
5. Adjustment for high import duty
6. Working capital adjustment
7. Computation of transfer pricing adjustment
8. Use of multiple year data
9. Use of contemporaneous data
10. Benefit of +/-5% range
11. Levy of interest u/s 234B
12. Levy of interest u/s 234C
13. Short grant of credit for TDS
14. Initiation of penalty proceedings u/s 271(1)(c)
Summary:
General Grounds:
The grounds of appeal No. 1, 2, 3, 8, 9, and 10 were dismissed as not pressed by the assessee.
Inclusion of Services Income (Ground No. 4):
The Tribunal restored the issue to the file of the AO with directions to decide the issue afresh in light of the Tribunal's previous directions in the assessee's own case for the preceding assessment year, ensuring due opportunity for the assessee to be heard.
Adjustment for High Import Duty (Ground No. 5):
The Tribunal, following its earlier decision in the assessee's own case, restored the matter to the AO to adjudicate the issue afresh, allowing the assessee a reasonable opportunity to present material and submissions.
Working Capital Adjustment (Ground No. 6):
The Tribunal directed the AO to remove Elecon Engineering Co. from the list of comparables and re-compute the PLI, following the decision of the Mumbai Bench in DHL Express Ltd. v. Asstt. CIT.
Computation of Transfer Pricing Adjustment (Ground No. 7):
The Tribunal upheld the assessee's plea, stating that the adjustment should be confined to international transactions with AEs alone, not non-AE transactions. The ground was allowed, following the Tribunal's decision in the assessee's own case for the preceding assessment year.
Levy of Interest u/s 234B and 234C (Ground Nos. 11 & 12):
The Tribunal dismissed these grounds, stating that charging interest under these provisions is mandatory and consequential.
Short Grant of Credit for TDS (Ground No. 13):
The Tribunal restored this ground to the AO, directing verification of records and necessary credit for TDS as per law.
Initiation of Penalty Proceedings u/s 271(1)(c) (Ground No. 14):
The Tribunal dismissed this ground as premature.
Conclusion:
The appeal filed by the assessee was partly allowed for statistical purposes.
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2013 (12) TMI 1660
Issues involved: Appeal against CIT(A) order, rejection of books of account, estimate of profit, disallowance u/s 40(a)(ia) of the Income Tax Act, 1961.
Rejection of Books of Account: The appellant appealed against the CIT(A)'s decision upholding the assessing officer's rejection of the books of account. Grounds 2 and 3 were withdrawn during the appellate proceedings.
Disallowance u/s 40(a)(ia) of the Act: The main issue in this appeal was the disallowance of &8377; 40,37,746 u/s 40(a)(ia) of the Act. The assessing officer disallowed this amount as finance charges due to non-payment of TDS by the assessee. The CIT(A) upheld this disallowance, citing the decision of ITAT Hyderabad Bench in a similar case.
Judicial Precedents: The appellant argued that the issue was covered by a later decision of the jurisdictional High Court, which favored the assessee. The Departmental Representative relied on a different decision by a coordinate bench. The ITAT considered the legal position and referred to a previous case involving the jurisdictional High Court, where it was held that no further disallowance could be made based on rejected books of accounts.
Decision: The ITAT, following the precedent set by the jurisdictional High Court, deleted the addition made by the assessing officer and confirmed by the CIT(A). The coordinate bench decision cited by the Departmental Representative was disapproved in light of the later judgment of the High Court. Consequently, the appeal of the assessee was allowed, and the addition was deleted.
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2013 (12) TMI 1659
Issues Involved:
1. Interim measures u/s 9 of the Arbitration and Conciliation Act, 1996.
2. Admissibility of unstamped documents.
3. Territorial jurisdiction.
4. Appointment of Court Receiver.
Summary:
Interim Measures u/s 9 of the Arbitration and Conciliation Act, 1996:
The petitioner sought interim measures u/s 9 of the Arbitration and Conciliation Act, 1996, due to the respondent's default in loan repayment. The petitioner issued a demand cum termination notice and invoked the arbitration agreement, appointing an arbitrator. The petitioner argued that the respondents' failure to respond to the demand notice and the absence of an affidavit in reply indicated an admission of the petition's averments.
Admissibility of Unstamped Documents:
The respondents contended that the loan cum hypothecation agreement and deed of guarantee were insufficiently stamped as per the Maharashtra Stamp Act, rendering them inadmissible in evidence. They cited the Supreme Court judgment in SMS Tea Estates Pvt. Ltd. vs. Chandmari Tea Co. Pvt. Ltd. The petitioner countered that the documents were executed in Goa, where the applicable stamp duty was paid, and any deficit could be addressed upon bringing the documents to Mumbai. The court held that since the documents were executed outside Maharashtra and the stamp duty was paid according to the rates prevailing in Goa, the documents could be relied upon in proceedings u/s 9.
Territorial Jurisdiction:
The respondents argued that the court lacked territorial jurisdiction as the agreements were executed in Goa, and the parties resided there. The petitioner contended that part of the cause of action arose in Mumbai, where the loan was sanctioned and disbursed, and the repayment was to be made at the petitioner's corporate office in Mumbai. The court found that it had jurisdiction to entertain the petition under section 9 of the Arbitration and Conciliation Act, 1996, as part of the cause of action arose in Mumbai.
Appointment of Court Receiver:
The petitioner sought the appointment of a Court Receiver to secure the claim, arguing that the respondents had defaulted on repayments and the whereabouts and condition of the hypothecated assets were unknown. The respondents opposed, citing the Madras High Court judgment in T. Krishnaswamy Chetty vs. C. Thangavelu Chetty, which outlined principles for appointing receivers. The court, finding that the respondents had not replied to the demand notice or filed an affidavit in reply, deemed the petition's averments admitted. The court appointed the Court Receiver, High Court, Bombay, with directions to appoint the respondent as an agent on usual terms or take forcible possession if the respondent refused.
Order:
(a) Court Receiver appointed for the equipment described in Ex. F to the petition.
(b) Respondent to act as an agent or Court Receiver to take possession.
(c) Ad-interim injunction granted.
(d) Petitioner to approach Court Receiver's office within three weeks.
(e) Respondent to disclose equipment location within three weeks.
Petition disposed of with no order as to costs.
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2013 (12) TMI 1658
Issues involved: Appeal against penalty u/s 271(1)(c) of the Income Tax Act, 1961 for non-reckoning of loss on sale of fixed assets in income computation.
Summary:
1. The appellant contested a penalty of Rs. 48,043/- imposed u/s 271(1)(c) of the Income Tax Act, 1961, confirmed by the Commissioner of Income Tax (Appeals), Kolkata, due to non-inclusion of a loss on sale of fixed assets in the income computation.
2. The Assessing Officer added the omitted amount to the assessment, initiating penalty proceedings. The appellant claimed it was a technical error, not intentional concealment. Despite explanations, the penalty was levied, upheld by the CIT(Appeals) citing ignorance of law as no excuse.
3. The appellant argued before the ITAT that the mistake was unintentional and not tantamount to concealment. The ITAT noted the Assessing Officer's acknowledgment of the error being inadvertent, especially in the first year of e-filing. Citing a precedent, the ITAT ruled the penalty unjustified as no inaccurate particulars were furnished.
4. The ITAT concluded that the penalty u/s 271(1)(c) was unwarranted, quashing the penalty and allowing the appellant's appeal.
Judgment: The ITAT Kolkata allowed the appeal, quashing the penalty imposed u/s 271(1)(c) of the Income Tax Act, 1961, due to the inadvertent error in income computation.
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2013 (12) TMI 1657
Deduction u/s. 80IB - Appellant did not file audit report under section 80IB along with the return of income - Such audit report was filed during the course of assessment proceeding - Appellant fulfils all other conditions required for claim under section 80IB. - HELD THAT:- It is fact that the assessee did not furnish audit report along with return but produced before the A.O. at the time of assessment as Hon’ble Gujarat High Court has held that it is a sufficient compliance of the Section if the assessee furnished the audit report before the A.O. at the time of assessment. Thus, claim of 80IB cannot be denied. Decision in favor of assessee.
Business of running a multiplex theatre - Depreciation on electrical fittings allowed at higher rate - The A.O. observed that depreciation on electric fittings is admissible @ 15% but assessee has claimed depreciation @ 25%. Appellant claimed that these are in the nature of plant which is essential for carrying on the business activity. - HELD THAT - It is undisputed that electrical items are fitted with projector and other film exhibition systems. Without electrical items, the projector as well as exhibition systems cannot be run. Thus, the assessee is entitled to higher rate @ 25%. - Decided in favor of assessee.
Addition u/s. 40(a)(ia) on account of late payment of TDS- The assessee capitalized the various expenses but claimed depreciation at ₹ 2,86,448/- in the P&L account. TDS on capitalised item paid on 30.05.2005 as against due date of 07.12.2004 - Appellant submitted that the entire TDS was paid on May 30, 2005 which is much before the due date of filing return. As per retrospective amendment by finance act 2008 the expense is allowable if TDS for the month of March is paid before due date of filing return. TDS in this case is prior to March 2005 and therefore amended provisions will not apply to the appellant - HELD THAT:-. Depreciation cannot be disallowed under section 40 (a) (ia) of IT act since it talks of expenditure by way of interest, commission, brokerages, fees for professional services. The assessee did not claim any expenditure under these heads. Therefore, provision of Section 40(a)(ia) is not applicable. Decided in favor of assessee.
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2013 (12) TMI 1656
Issues involved:
The maintainability of an appeal filed by the original complainant claiming to be a victim under the proviso to Section 372 of the Code of Criminal Procedure.
Summary:
The High Court of Bombay, in the case where the original accused was acquitted by the Judicial Magistrate, examined the appeal filed by the original complainant before the Court of Sessions. The Court found that the appeal filed by the complainant claiming to be a victim under the proviso to Section 372 of the Code was not maintainable. The Court highlighted that the complainant already had the right to file an appeal under Section 378(4) of the Code in case of acquittal, and therefore, could not file an appeal as a victim under Section 372. The Court declared the proceedings before the Court of Sessions as null and void, quashed the order of the Additional Sessions Judge allowing the appeal, and directed that the original complainant can file an appeal in accordance with Section 378(4) of the Code to challenge the order of acquittal passed by the Magistrate.
In conclusion, the Revision Application was successful, and the order of the Additional Sessions Judge was quashed and set aside. The Court made it clear that the original complainant could still file an appeal under Section 378(4) of the Code to challenge the order of acquittal passed by the Magistrate.
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2013 (12) TMI 1655
TDS u/s 194C or u/s 194J - During the course of survey, it was found that assessee was engaged in the business of media channel under the name of “Sristi Television” and paid carriage fees to various parties. The assessee deducted TDS @ 2% under Section 194C on payment made to those parties. Assessing Officer was of the opinion that TDS on payment of carriage fees was to be deducted @ 10% under the provisions of section 194J of the Income Tax Act, 1961.
HELD THAT:- No technical services were involved in payment of carriage charges made by the assessee for broadcasting of the programmes produced by the assessee. The admitted fact was that the assessee produced various types of programmes/serials and news. These were telecast/broadcasted through Multi System Operators for which payments were made to them for which nomenclature used was ‘carriage charges ’. For this payment tax was deductible u/s 194C explanation iv(b) which is clear from the section itself as cited by the assessee and quoted earlier.
Decision in favor of assessee.
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2013 (12) TMI 1654
Issues involved: Company petition under section 237 seeking opinion for initiation of investigation by the Central Government, maintainability of the petition, qualifications of the petitioners under section 237 (b) of the Companies Act.
Summary:
The petitioner filed a company petition under section 237 seeking the opinion of the Bench for the initiation of an investigation by the Central Government. Initially, the petitioner requested notices to be issued to the parties, but later filed for deletion of certain respondents from the petition. The petitioner filed multiple applications in the petition, sometimes after orders were passed, insisting on being heard each time the matter came before the Bench.
The Bench noted that as a Judicial Authority, it could not decide on issues or form an opinion against any party in the absence of the indicted party. The petitioner argued that the accused party need not be heard before passing investigation orders, citing a High Court decision under the Competition Act, but the Bench found no analogous provision under the Companies Act for such a procedure.
Regarding section 237 of the Companies Act, the Bench explained the provisions under subsections (a) and (b) which empower the Central Government to appoint inspectors or initiate investigations based on specific criteria related to fraudulent conduct, misfeasance, or lack of information provided to members.
The petitioner raised objections to the maintainability of the petition, but the Bench found that the petitioners did not qualify under any of the clauses of section 237 (b) of the Act. As the petitioners were not members, creditors, or directly affected by the company's affairs, the Bench dismissed the petition as misconceived, closing all pending applications.
In conclusion, the Bench dismissed the petition and all pending applications, noting the petitioner's frustration at no costs being imposed along with the dismissal.
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2013 (12) TMI 1653
Issues Involved:
1. Non-payment of dues and winding up petition u/s 433(e) of the Companies Act, 1956.
2. Settlement talks and deferment of proceedings.
3. Financial viability and restructuring efforts.
4. Advertisement of winding up petition and appointment of provisional liquidator.
Summary:
1. Non-payment of dues and winding up petition u/s 433(e) of the Companies Act, 1956:
The petitioner filed a petition seeking winding up of the respondent-company for non-payment of dues amounting to approximately Rs. 2.9 crores. The petitioner had financed the respondent-company, which was supplying automobile clutches to various manufacturers, including TATA Motors. Despite several reminders and a statutory notice u/s 434(1)(a), the respondent failed to repay the amount, leading to the current winding up petition.
2. Settlement talks and deferment of proceedings:
Initially, there were settlement talks between the parties, but they failed. On 2.9.2013, the Court admitted the company petition but deferred further proceedings such as publication of citation in newspapers and appointment of a provisional liquidator for 8 weeks to enable revival talks or settlement proposals by the respondent-company.
3. Financial viability and restructuring efforts:
The respondent-company presented a Techno-Economic Viability Report and other documents to demonstrate its efforts towards restructuring and financial viability. The report highlighted the potential for achieving significant production levels and recommended restructuring loans and infusing working capital. The respondent also pointed to ongoing efforts to settle labour issues and shift operations from Faridabad to Bhiwadi. However, the petitioner argued that the respondent had not provided sufficient information or taken serious steps to repay the debt.
4. Advertisement of winding up petition and appointment of provisional liquidator:
The Court noted that the respondent-company had not initiated any talks or settlement proposals after the order dated 2.9.2013. Given the lack of progress and the outstanding debt, the Court directed the publication of the citation in the Delhi Gazette, Times of India (English), and Navbharat Times (Hindi) on 14th February, 2014, indicating that the winding up petition had been admitted but a provisional liquidator was yet to be appointed. The appointment of a provisional liquidator was deferred for consideration on the next hearing date, 5th March, 2014.
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2013 (12) TMI 1652
Suspension of mining license - Seeking permission to carry quarrying operation ispite the allegation of unauthorized quarrying on Govt Land - Quarrying operations not carried out as per the mining plan - Encroachment upon the adjoining roads, tanks, channels and water bodies - Illicitly quarried granites in the adjacent non-leasehold areas also - Special Leave Petitions filed stands dismissed - HELD THAT - Court found it difficult to accede especially after report of the District Collector and Deputy Director of Geology and Mining as several criminal cases are pending against for carrying on illegal quarrying operations in the government land.
Decision on this case CHAIRMAN, ALL INDIA RAILWAY REC. BOARD & ANR VERSUS K. SHYAM KUMAR & ORS [2010 (5) TMI 861 - SUPREME COURT] was followed.
The Court opined that since several writ petitions are pending for consideration before the High Court, so the Court did not deem fit to pronounce any judgement at this stage upon the various contentions raised by learned senior counsel on either side on merits of the case, especially w.r.t. the issuance of the suspension orders and the show cause notices. It was also noticed that the Division Bench of the High Court has issued some equitable directions taking into consideration the interest of the workers and also for honouring some statutory obligations of the petitioner firm. We, therefore, find no reason to interfere with the impugned judgment and the special leave petitions filed against those orders stand dismissed.
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2013 (12) TMI 1651
Issues Involved:1. Quashing of the summoning order dated 16.01.2013. 2. Vicarious liability of the petitioners as Additional Directors u/s 138 read with Section 142 of the Negotiable Instruments Act. Summary:Issue 1: Quashing of the Summoning OrderChallenge in these petitions is to the order dated 16.01.2013 passed by the learned Metropolitan Magistrate in Complaint Case No.259/12/12 u/s 138 read with Section 142 Negotiable Instruments Act whereby the petitioners were ordered to be summoned. The petitioners seek quashing of the summoning order and all the proceedings emanating therefrom, alleging that they were merely Additional Directors of NKG Steel (India) Pvt. Ltd without any role in the day-to-day affairs or the monetary deal in question. They argue that the summoning order was passed in a mechanical manner without application of mind and that no specific role had been attributed to them to make them vicariously liable for the transaction. Issue 2: Vicarious Liability of the PetitionersThe petitioners argue that they were not involved in the day-to-day affairs of the company nor were they signatories of the cheques. They cite several precedents, including S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr., to argue that specific averments are necessary to hold directors liable u/s 141 of the NI Act. The respondent, however, contends that there are specific allegations against the petitioners in the complaint, including their involvement in meetings and assurances given regarding the dishonoured cheques. The court notes that the legal position regarding the liability of directors requires specific averments in the complaint about their role and responsibility in the conduct of the business of the company. The court finds that the complaint does make specific allegations against the petitioners, and at this stage, a presumption u/s 141 of the NI Act would have to be drawn against them. The court emphasizes that the power to quash proceedings at the initial stage should be exercised sparingly and only in rare cases. Consequently, the petitions and pending applications are dismissed, and the trial court is directed to examine the petitioners' liability for the offence punishable u/s 138 of the NI Act after recording evidence.
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2013 (12) TMI 1650
CBI Non-partisan investigating agency - Central vigilance commission (CVC) - Prevention of Corruption Act (“PC Act” for short) -The fact that the investigation is monitored by the constitutional court is itself an assurance that investigation/inquiry by the CBI is not actuated with ulterior motive to harass any public servant and the investigating agency performs its duties and discharges its responsibility of fair and impartial investigation uninfluenced by extraneous considerations.
whether the approval of the Central Government is necessary under Section 6A of the Delhi Special Police Establishment Act, 1946 (“DSPE Act” for short) in a matter where the inquiry/investigation into the crime under the PC Act is being monitored by the Court.
HELD THAT:- The approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where inquiry/investigation into the crime under the PC Act is being monitored by this Court. This position holds good in cases which are directed by the Court to be registered and the inquiry/investigation thereon is actually being monitored by this Court. The monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channeling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation into every accusation is made on a reasonable basis irrespective of the position and status of that person and the inquiry/investigation is taken to the logical conclusion in accordance with law.
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2013 (12) TMI 1649
Re-opening of assessment u/s 147 - Assessee contended that reasons are vague and based upon no material and simply on the basis of some presumption of the Investigation Wing. - The learned DR stated that the Assessing Officer received definite information from the Director of Income Tax (Investigation), New Delhi and the assessment has been reopened on the basis of such specific and definite information. - HELD THAT- On what basis the inference is drawn that the above amount received is accommodation entry received by the assessee has neither been mentioned in the assessment order nor the letter of DIT. In view of the above, we hold that the information on the basis of which the Assessing Officer had initiated proceedings under Section 147 was vague and uncertain. Respectfully following the same, we quash the notice issued under Section 147 of the Act and consequently, the assessment order passed in pursuance thereto is also quashed.
Decision in favor of assessee.
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2013 (12) TMI 1648
Issues involved: Modification of a sanctioned scheme for merger and demerger due to incorrect details of immovable properties.
Modification of Scheme Details: The applicants sought modification of the scheme sanctioned for the merger of KICPL with SHK and the demerger of Business Support Centre Division of SHK into Keva Constructions. The correction was required in the details of immovable properties due to incorrect information provided in the schedule of the scheme. The applicants clarified that the basic fabric of the scheme remains unchanged, and only the details of the properties needed correction. The valuation report and financial position were based on these properties, which were to be transferred to Keva Constructions. The applicants assured that the correction would not alter the valuation, as confirmed by the Chartered Accountant's report.
Approval and Objection: The learned counsel for the applicants highlighted that the correction was necessary due to inadvertence, and the Regional Director had no objection to the proposed modification. The applications indicated a change in asset details with the requisite Board Resolution in place. No opposition was raised during the initial scheme approval process, indicating the acceptance of the modification.
Judgment and Amendment: The Court allowed the applications in line with the requested modifications outlined in prayer clauses (a) and (b). The amendment to the scheme details was directed to be completed within four weeks from the date of the judgment.
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2013 (12) TMI 1647
Issues Involved:
1. Whether the petition filed by the respondents is maintainable u/s 397 and 398 of the Companies Act, 1956.
2. Legality of the transfer of shares and the appointment of directors.
3. Allegations of forgery and fabrication of documents.
Summary:
Issue 1: Maintainability of the Petition
The application was filed u/s 399 and 403 of the Companies Act, 1956, read with Regulation 44 & 47 of the Company Law Board Regulations, 1991. The applicants contended that the respondents (Petitioners) are not shareholders of the company and thus cannot maintain a petition u/s 397 and 398. The respondents argued that they hold more than 58% of the total share capital and that the transfer of shares was illegal. The Board concluded that the respondents had executed share transfer deeds and received sale consideration, thus they are no longer shareholders and cannot maintain the petition u/s 399.
Issue 2: Legality of Share Transfer and Appointment of Directors
The respondents sought declarations that the allotment of 15,59,201 equity shares and the appointment of directors were illegal. The Board found that the petitioners had admitted to holding 16,43,360 shares and had transferred them to the applicants, receiving substantial payments. The Board held that the applicants complied with the procedure for share transfer as per the Companies Act, and thus the petitioners' claims were invalid.
Issue 3: Allegations of Forgery and Fabrication
The respondents alleged that the transfer deeds were fabricated and intended to defeat their claims. However, the Board found that the applicants had provided sufficient evidence of payments and share transfer deeds. The Board dismissed the allegations of forgery and fabrication, stating that the documents filed by the petitioners did not substantiate their case.
Conclusion:
The Board concluded that the petitioners are no longer shareholders and cannot maintain the petition u/s 399 of the Companies Act, 1956. The application CA/165/2011 was allowed, and the petition CP/34/2011 was dismissed. Applications CA/1/2013 and CA/2/2013 to receive additional documents were also dismissed. No orders as to costs.
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9911796707
