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Showing 121 to 140 of 14810 Records
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2013 (12) TMI 1646
Issues Involved:
1. Jurisdiction under Section 536(2) of the Act during the pendency of Company Petition for winding up.
2. Allegations of violation of laws in the matter of pledge of shares.
3. Claim of respondent that USL is a subsidiary of the applicant.
4. Principles governing exercise of jurisdiction of Courts under Section 536(2) of the Act.
5. Pledge of shares for raising loans not forthcoming from the applicant's annual report 2011-12.
6. Adjudication over pledges of shares in favour of S.B.I & J & K Bank Limited.
7. Public announcement.
8. Price per equity share.
9. Immovable property valuation report.
10. Allegation that the applicant is commercially insolvent.
11. Allegation that SPA, PPA & SHA are detrimental to the interest of creditors.
12. Utilization summary.
Summary:
1. Jurisdiction under Section 536(2) of the Act during the pendency of Company Petition for winding up:
The Court held that an application under Section 536(2) of the Companies Act, 1956, is maintainable even before the winding-up order is made. However, such an application should be entertained only after the petition is formally admitted and advertised, ensuring that all creditors are notified and heard.
2. Allegations of violation of laws in the matter of pledge of shares:
The Court noted that the respondent had pledged shares even after the filing of the winding-up petition, which was disputed by the petitioners. The Court held that the validity of these pledges should be investigated by the Official Liquidator after the winding-up order is passed.
3. Claim of respondent that USL is a subsidiary of the applicant:
The Court observed that the respondent claimed USL as its subsidiary and had pledged shares in favor of various financial institutions. However, the Court found that the respondent had not disclosed all material facts and had misled the Court.
4. Principles governing exercise of jurisdiction of Courts under Section 536(2) of the Act:
The Court emphasized that the power under Section 536(2) should be exercised to protect bona fide transactions carried out in the ordinary course of business and in the interest of the company and its creditors. The Court must ensure that the interests of unsecured creditors are not prejudiced.
5. Pledge of shares for raising loans not forthcoming from the applicant's annual report 2011-12:
The Court found discrepancies in the pledges made by the respondent, noting that some pledges were created after the filing of the petition. The Court held that these pledges do not prima facie qualify for repayment and require further investigation.
6. Adjudication over pledges of shares in favour of S.B.I & J & K Bank Limited:
The Court noted that the respondent had pledged shares in favor of SBI and J&K Bank but had not notified these secured creditors or heard them. The Court held that the transaction was not bona fide and the impugned order was vitiated.
7. Public announcement:
The Court observed that the public offer for the sale of shares at Rs. 1,440 per share had failed, as none of the public shareholders offered to sell their shares. The Court found that the respondent had not disclosed the Share Purchase Agreement to the petitioners, violating principles of natural justice.
8. Price per equity share:
The Court found that the shares were sold at Rs. 1,440 per share, while the market price was around Rs. 2,324.10 on the date of the order. The Court held that the price quoted on the Stock Exchange cannot be the sole criterion for valuation and that the transaction was not bona fide.
9. Immovable property valuation report:
The Court noted that the respondent had proposed to sell certain immovable properties and file a separate application for the same. The Court directed the respondent to refrain from creating any encumbrance over its properties pending disposal of the company petitions.
10. Allegation that the applicant is commercially insolvent:
The Court found that the respondent owed a substantial amount to nationalized banks and had not disclosed this fact to the Court. The Court held that the transaction was not bona fide and was detrimental to the interests of the creditors.
11. Allegation that SPA, PPA & SHA are detrimental to the interest of creditors:
The Court found that the respondent had entered into parallel transactions, diverting substantial portions of the consideration. The Court held that these transactions require further investigation and cannot be validated without proper scrutiny.
12. Utilization summary:
The Court directed the respondent to deposit the sale proceeds in the Court and refrain from selling the remaining shares or creating any encumbrance over its properties pending disposal of the company petitions.
Conclusion:
The appeals were partly allowed, and the impugned
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2013 (12) TMI 1645
Issues involved: Appeal by Revenue and Cross Objection by assessee against CIT (A)'s order for assessment year 2008-2009 regarding tax effect below Rs. 3 lakhs.
Revenue's Appeal:
The Revenue filed an appeal against CIT (A)'s order, but the assessee argued that the tax effect was below Rs. 3 lakhs as per Board's Circular. The Revenue contended that the tax effect calculation by the assessee did not include education cess, making the tax effect exceed Rs. 3 lakhs. The assessee referred to a judgment of the Hon'ble Delhi High Court regarding the inclusion of cess in tax for section 43B of the Act. The Tribunal noted the Board's Instruction stating that the Revenue should not file appeals if the tax effect is below Rs. 3 lakhs. Considering the Delhi High Court's judgment, the Tribunal held that tax effect should be calculated without including cess. Consequently, the Revenue's appeal was deemed not maintainable and dismissed.
Cross Objection by Assessee:
The Cross Objection filed by the assessee was in support of the CIT (A)'s order. Since the Revenue's appeal was dismissed due to low tax effect, the Cross Objection by the assessee was also dismissed. Ultimately, both the Revenue's appeal and the Cross Objection of the assessee were dismissed by the Tribunal.
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2013 (12) TMI 1644
Issues:
The petitioners sought a refund of excessive luxury tax paid and challenged the decision of the respondent authorities.
Issue 1: Refund of Excessive Luxury Tax
The petitioners, a Private Limited Company running a hotel, paid luxury tax based on their own declaration, which was accepted by the authority. They later requested a refund of Rs. 40,11,417/-, claiming they had paid an excess amount due to misinterpretation of the law. The authority rejected the refund claim, stating that the petitioners had paid the tax as per their own returns and no excess amount was paid. The petitioners argued that they were entitled to a refund of Rs. 25,91,607/-, which was the alleged excess amount paid. The court noted that the petitioners had paid the tax based on their own submissions, and there was no provision for a refund under section 12 of the Act. The court dismissed the petition for refund, stating that the petitioners were not entitled to it.
Issue 2: Future Assessment Concerns
The petitioners raised concerns that the authority's interpretation in the communication dated 30/5/2013 might affect their future assessments. The court clarified that any future returns submitted by the petitioners would be assessed by the appropriate authority in accordance with the law. The court assured that future assessments would be conducted as per the prevailing legal provisions.
Conclusion
The court dismissed the petition seeking a refund of excessive luxury tax, stating that the petitioners had paid the tax based on their own declarations and were not entitled to a refund under the Act. The court addressed the petitioners' concerns regarding future assessments, emphasizing that assessments would be conducted in accordance with the law.
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2013 (12) TMI 1643
Issues Involved:
1. Terms of employment of the employees of the demerged undertaking.
2. Proposed accounting treatment under the scheme.
3. Approval to the scheme by creditors of the Resulting Company.
4. Disputed tax liability of the Demerged Company.
5. Transfer of Authorised Capital of the Demerged Company to the Resulting Company.
6. Reduction of Equity Share Capital of the Demerged Company.
7. Issue of Bonus Shares from Share Premium Account in the previous financial years.
8. Applicability of RBI guidelines and status of NBFC.
9. Use of suffix 'and reduced' in case of Demerged company.
Summary:
Terms of Employment:
The court noted that the Companies Act does not prescribe specific conditions for the disclosures to be made in the scheme pertaining to the terms of employment. The relevant clause in the scheme states that "the terms and conditions of service applicable to them, as aforesaid, will continue to govern them as employees of the Resulting Company." No further directions were required to modify the scheme.
Accounting Treatment:
The prevalent Accounting Standards are not applicable to the Scheme of Demerger. The petitioner is directed that in case of deviation from the accounting standard or practice, the Resulting Company shall make necessary disclosures in its first financial statements after the scheme is made effective.
Approval by Creditors:
The court observed that the proposed scheme does not affect the rights and interests of the creditors of the Resulting Company. No objections were received from creditors, and hence, no further directions were required to seek their approval.
Disputed Tax Liability:
The pendency of any litigation regarding disputed tax liabilities is not a relevant consideration for the sanction of the scheme. The scheme does not envisage absolution of the demerged company if such liability is crystallized later. The observation was overruled.
Transfer of Authorised Capital:
The issue of transfer of part of the Authorised Capital is settled by various High Court decisions, and there is no legal prohibition for such transfer. The observation was deemed redundant.
Reduction of Capital:
The contention that capital can only be reduced if there are accumulated losses was found to be ill-founded. The law allows for a wide range of types of reduction, and the proposed reduction was justified and permissible.
Bonus Shares:
The issuance of Bonus shares by the Demerged Company during the financial year 2011 was lawful and followed due process. There was no public interest affected, and no further directions were required.
RBI Guidelines and NBFC Status:
The RBI guidelines for NBFC are not applicable to the Resulting Company, and it is not required to obtain any clearances from the Reserve Bank of India.
Use of Suffix 'And Reduced':
The direction to add the suffix 'And Reduced' is discretionary. Given that the Demerged Company is a closely held company with no public interest affected, there was no justification for issuing such a direction.
Conclusion:
The court concluded that the present scheme of arrangement is in the interest of its shareholders and creditors as well as in the public interest and deserves to be sanctioned. The Reduction of Issued, Subscribed, and Paid-up share capital of the Demerged Company and the utilization of the Securities Premium Account were granted. The petitions were disposed of accordingly, and the petitioner companies were directed to comply with further procedural requirements.
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2013 (12) TMI 1642
Issues Involved:
1. Validity of Board Meetings and Appointments
2. Maintainability of Petition u/s 409 of the Companies Act, 1956
3. Interim Reliefs and Stay of AGM
Summary:
1. Validity of Board Meetings and Appointments:
The petitioner, an Executive and Whole Time Director of the first respondent company, challenged the validity of board meetings held on 09.04.2013, 10.04.2013, and 11.04.2013, which led to the appointment of respondents 2 to 4 as directors. The petitioner argued that these meetings were convened without proper notice and were invalid as the fifth respondent had resigned on 06.04.2013. The respondents countered that the fifth respondent had withdrawn his resignation on 09.04.2013 and continued to act as a director, thus maintaining the quorum for the meetings. The petitioner had acknowledged the appointments in a letter dated 15.04.2013 and participated in subsequent board meetings, indicating her awareness and acceptance of the changes.
2. Maintainability of Petition u/s 409 of the Companies Act, 1956:
The respondents argued that the petition was not maintainable u/s 409 as there was no proposed change in the board of directors or membership likely to affect the company prejudicially. They contended that the petitioner had acquiesced to the changes and was estopped from raising these issues. The petitioner, however, claimed that the appointments were part of a conspiracy and sought to prevent the AGM from ratifying these appointments and the transmission of shares.
3. Interim Reliefs and Stay of AGM:
The petitioner sought interim relief to stay the 60th AGM scheduled for 28.11.2013, later adjourned to 18.12.2013. The Bench advised the parties to settle the disputes amicably, but no settlement was reached. The Bench found that the petitioner had not made out a case for interim relief as there was no likelihood of a change in the management or ownership of the company. The AGM was allowed to proceed, with the resolutions passed subject to the outcome of the company petition.
Conclusion:
The petitioner's request for interim relief to stay the AGM was denied. The AGM could proceed, and the resolutions passed would be subject to the final decision on the company petition. The matter was posted for further hearing on 25.02.2014.
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2013 (12) TMI 1641
Issues involved: Interpretation of provisions u/s 194J and 201(1A) of the Income Tax Act, 1961 regarding tax deduction on payments made to Himachal Pradesh Road Transport Co. Ltd. (HRTC) by the assessee authority.
Summary:
The appeals were filed against the order of the CIT(A), Shimla, where the assessee challenged the application of section 194J and the interest u/s 201(1A) of the Income Tax Act. The main contention was that payments made to HRTC were reimbursement of expenses and not subject to TDS. An additional ground was raised, citing legal precedents to support the argument. The ITAT Chandigarh admitted the additional ground, considering it a legal issue with relevant facts on record.
The case involved a survey revealing payments made by the assessee to HRTC without tax deduction. The Assessing Officer deemed these payments as service charges, requiring tax deduction u/s 194J. The CIT(A) upheld this decision, leading to the appeal.
During the hearing, the assessee's counsel argued that the payments were reimbursement for services provided by HRTC, not subject to TDS. They also contended that HRTC had already paid taxes on these receipts, relieving the assessee from tax liability. The revenue's representative supported the Assessing Officer's order.
After reviewing the submissions, the ITAT found that the assessee authority reimbursed HRTC for services provided due to a lack of infrastructure. The payments were based on predetermined rates for staff and facilities, not lump sum service charges. Citing various tribunal decisions, the ITAT concluded that no tax deduction was required u/s 194J. The order of the CIT(A) was set aside, and it was held that no tax was deductible by the assessee authority.
In conclusion, the appeal of the assessee was allowed, and the order was pronounced on 31/12/2013.
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2013 (12) TMI 1640
CENVAT credit - various input services - Place of removal - Held that: - the credit taken up to the stage where goods have reached from the place of removal would be admissible if the same can be related to business of manufacture - in respect of exports place of removal would be port.
Even though the definition was amended on 1-4-2008 and words 'from the place of removal' in the definition and definition of input services were replaced by 'up to the place of removal', once we take a view that the port has to be treated as place of removal in respect of exports, the services utilized by the appellant would be covered even after the amendment of the definition. Moreover by the very words used for in respect of different services would show that they have nexus to the goods manufactured and exported and therefore it cannot be said that they have nothing to do with the business of manufacture.
Appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1639
Recovery of service tax due and payable by the service provider M/s. Ashish Enterprises - section 87 of FA - Held that:- Considering the provision of Section 87 of the Act when any amount payable by a person to the credit of the Central Government is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned in Section 87 of the Act and as per Section 87(b)(i) of the Act, the Central Excise Officer may, by notice in writing, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount.
Thus, there can be a recovery of the amount due and payable by the service provider from the petitioner, out of the amount which is due and payable by the petitioner to the service provider and which is held by the petitioner - Therefore, when an amount of more than ₹ 2 crores is due and payable by the petitioner to the service provider, which is held by the petitioner to be paid to the service provider, out of which the petitioner is directed to make payment of ₹ 38,27,023/ towards the Service Tax due and payable by the service provider, it cannot be said that the impugned notice/communication is in anyway without jurisdiction and/or without authority under the law. The impugned demand is absolutely in consonance with Section 87 of the Act.
It cannot be said that the impugned demand is illegal and/or arbitrary and/or without jurisdiction and authority under the law - appeal dismissed.
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2013 (12) TMI 1638
Issues involved: Classification of service for harvesting and transportation of sugar cane under Manpower Supply Service or Business Auxiliary Service.
In the present case, the Appellate Tribunal CESTAT, Mumbai considered appeals against two orders passed by the Commissioner of Central Excise, Customs & Service Tax, Aurangabad and Pune III. The issue revolved around whether the service of harvesting and transportation of sugar cane should be classified as Manpower Supply Service, leading to a demand of service tax. The appellants argued that previous decisions by the Tribunal had established that such services should be categorized under Business Auxiliary Service, not Manpower Supply Service. The Revenue, represented by the Additional Commissioner, maintained the position taken by the adjudicating authority.
The Tribunal, in line with previous decisions, ruled in favor of the appellants. Citing precedents such as Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd., Samarth Sevabhavi Trust, and Bhogavati Janseva Trust, the Tribunal concluded that the services in question were not appropriately classified under Manpower Supply Service but rather under Business Auxiliary Service. Consequently, the impugned demands for service tax were deemed unsustainable in law, and the appeals were allowed with any necessary consequential relief as per the law. The appeals were allowed, and any stay applications were also disposed of accordingly.
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2013 (12) TMI 1637
Event of inconsistency between the terms and conditions of the licenses issued by TRAI - Permission of direct connectivity to terminate traffic - Power of TRAI to fix the terms and conditions of inter connectivity between service providers - Power under sub-ordinate legislation - overriding effect - Power to Regulate versus Power to prohibit - HELD THAT:- the Authority can make regulations on various matters specified in other sections including Sections 8(1), 8(4), 11(1)(b), 12(4) and 13. Further that the regulations made under Section 36(1) and (2) are in the nature of subordinate legislation and are required to be laid before each House of Parliament in terms of Section 37 and Parliament can approve, modify or annul the same. Further that a restrictive interpretation of Section 36(1) with reference to Clauses (a), (b) and (d) of Section 36(2) will make the provision otiose and the Court should not adopt that course
Further stated that the power conferred upon the Authority to issue an order fixing the rates at which the telecommunication services are to be provided within and outside India including the rates at which messages are required to be transmitted to any country outside India and the power vested in the authority under Section 12(4) and 13 to issue directions to the service providers cannot be controlled by making regulations under Section 36(1).
Power to Regulate versus Power to prohibit - HELD THAT:- The question essentially is one of degree and it is impossible to fix any definite point at which “regulation” ends and “prohibition” begins. - the term ‘regulate’ is elastic enough to include the power to issue directions or to make regulations and the mere fact that the expression “as may be provided in the regulations” appearing in clauses (vii) and (viii) of Section 11(1)(b) has not been used in other clauses of that sub-section does not mean that the regulations cannot be framed under Section 36(1) on the subjects specified in clauses (i) to (vi) of Section 11(1)(b).
Power of the Authority / TRAI - Section 36 - HELD THAT:- there is nothing in the language of Section 36(2) from which it can be inferred that the provisions contained therein control the exercise of power by the Authority under Section 36(1) or that Section 36(2) restricts the scope of Section 36(1).
Power under sub-ordinate legislation - Power to issue directions - HELD THAT:- the power vested in the Authority under Section 36(1) to make regulations is wide and pervasive. The exercise of this power is only subject to the provisions of the Act and the Rules framed under Section 35 thereof. There is no other limitation on the exercise of power by the Authority under Section 36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13.
The cases may now be listed before an appropriate Bench for deciding the questions framed vide order dated 6.2.2007 passed in Civil Appeal No.3298/2005 and some of the connected matters
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2013 (12) TMI 1636
Issues Involved:
The issues involved in this case are the challenge to a Board Circular and an order passed by the Additional Commissioner of Customs without proper service and hearing.
Challenge to Board Circular:
The petitioners challenged Board Circular No. 24/2011-Cus., dated 31 May 2011, which allowed the transfer of adjudication function to the Additional Commissioner even in cases where show cause notices were issued by the Commissioner of Customs.
Order Passed by Additional Commissioner:
The petitioners contested the order dated 19 February 2013 passed by the Additional Commissioner of Customs, claiming it was not served upon them and was made without affording them a hearing.
The learned Counsel for the respondents failed to provide evidence of the service of the order-in-original dated 19 February 2013 on the petitioners. The petitioners argued that they were not given a reasonable opportunity to present their case before the Adjudicating Officer as the last hearing was scheduled on 28 January 2013, but they received the notices on the same day. Consequently, they could not attend the hearing, leading to the Adjudicating Authority issuing the impugned order on 19 February 2013. The petitioners requested that the order be set aside, and the matter be referred back to the Commissioner of Customs for adjudication.
The respondents suggested that the petitioners could seek recourse through the Appellate Authority, i.e., the Commissioner of Customs (Appeal), to address their grievances regarding natural justice. They proposed the dismissal of the petition, directing the petitioners to utilize the alternate remedy available.
However, the respondents could not demonstrate that the hearing notices were served on the petitioners before the scheduled date or prove the service of the order-in-original dated 19 February 2013. Consequently, the impugned order was set aside, and directions were issued to the Adjudicating Authority to provide a fair hearing to the petitioners and resolve all issues raised in the show cause notice dated 22 December 2010 in accordance with the law.
To ensure proper notice service, the petitioners were instructed to appear before respondent No. 3 on 20 December 2013 for the hearing. The adjudication proceedings were directed to be expedited and ideally concluded by 31 January 2014. It was clarified that the court had not delved into the merits of the parties' contentions at this stage.
The writ petition was disposed of accordingly, with the parties instructed to act upon a duly authenticated copy of the order provided by the court registry.
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2013 (12) TMI 1635
Issues involved: Assessment of tax liability u/s two show cause notices, denial of Cenvat credit for construction of quarters and hospital charges, interpretation of 'input services' u/s Cenvat Credit Rules, 2004, conflicting judgments on similar cases.
Assessment of Tax Liability:
The assessed tax liability presently due, after appropriations ordered, amounts to Rs. 81,53,013, covered by a common adjudication order passed in respect of two show cause notices. The order specifies interest and penalty as well.
Denial of Cenvat Credit:
The demand arises from the denial of Cenvat credit claimed under the Cenvat Credit Rules, 2004, for the construction of quarters for housing personnel and hospital charges for medical facilities. The adjudicating authority denied input credit on the grounds that these services fall outside the ambit of 'input services' as defined in Rule 2(1) of the 2004 Rules.
Interpretation of 'Input Services':
The Tribunal is of the view that the deployment of security personnel for factory/plant security and providing medical facilities to the petitioner's employees falls within the scope of 'input services' as defined in Rule 2(1) of the 2004 Rules. This includes services used in or in relation to the manufacture or production of a final product or an output service.
Conflicting Judgments:
There is a conflict of opinion regarding the application of Rule 2(1) of the 2004 Rules in different factual scenarios. While some judgments upheld denial of Cenvat credit for services related to residential colonies, others, like the Karnataka High Court, held various services like canteen, transportation, insurance, and health insurance for employees to be 'input services'. The Tribunal notes that there is no conflict in the interpretation of Rule 2(1) itself.
Conclusion:
Given the strong prima facie case in favor of the petitioner, the Tribunal waives the pre-deposit requirement and stays further proceedings for the realization of the assessed liability pending the disposal of the appeals. Stay applications are accordingly disposed of.
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2013 (12) TMI 1634
Issues Involved:
1. Locus standi of the Petitioner to file the petition.
2. Allegations of suppression of facts by the Petitioner.
3. Delay and laches in filing the petition.
4. Alleged non-appointment of the Petitioner as a Director.
5. Alleged alteration of share capital without due process.
6. Alleged illegal appointment of R3 and R4 as Directors.
7. Alleged denial of inspection of statutory records.
8. Alleged siphoning of funds by Respondents.
Summary:
1. Locus Standi of the Petitioner:
The first issue was whether the Petitioner had the locus standi to file the petition u/s 397/398 read with Section 402 of the Companies Act, 1956, in terms of Section 399. The Petitioner claimed to hold 50% shareholding, while the Respondents contended he held only 8%. The judgment referenced several cases, including Vijayan Rajesh v. MSP Plantations (P.) Ltd. [2010] 98 SCL 383, which established that the eligibility to file a petition should be determined based on the last undisputed position. The Court concluded that the Petitioner held approximately 50% shareholding, making the petition maintainable.
2. Allegations of Suppression of Facts:
The Respondents argued that the Petitioner had not come with clean hands, alleging suppression of material facts and reliance on forged documents. The Court noted that the Petitioner had withheld details of a prior civil suit and other material documents. Citing Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad [2005] 57 SCL 476, the Court held that a party approaching the Court with unclean hands is not entitled to equitable relief. The petition was thus liable to be dismissed on this ground.
3. Delay and Laches:
The Respondents contended that the petition suffered from delay and laches, as the Petitioner was aware of the disputes since 2007 but filed the petition only in 2012. The Court found that the Petitioner had not exercised due diligence and had approached the Bench at a very belated stage. Citing Amrit Lal Seth v. Seth Hotels (P) Ltd. [2009] 95 SCL 161 (CLB - New Delhi), the Court held that the petition was liable to be dismissed due to unexplained delay and laches.
4. Alleged Non-Appointment as Director:
The Petitioner claimed he was appointed as a Director via a resolution dated 2/11/2006, which was not acted upon. The Court found that the resolution was never implemented, and no statutory forms were filed. The Court also noted that disputes regarding directorship do not fall within the purview of Section 397/398, referencing V.M. Rao v. Rajeswari Ramakrishnan [1987] 61 Comp Cas 20 (Mad).
5. Alleged Alteration of Share Capital:
The Petitioner alleged that the Respondents altered the share capital without due process to dilute his shareholding. The Court found that the alteration was done to meet the urgent requirement of funds for the company and did not amount to an act of oppression. The Court noted that the Petitioner had demanded his investment back, which was paid by the Respondents, thus negating the claim of oppression.
6. Alleged Illegal Appointment of R3 and R4 as Directors:
The Petitioner challenged the appointment of R3 and R4 as Directors, alleging it was done without his consent and without holding a valid meeting. The Court found that the appointments were made to ensure quorum after the demise of a Director and that the Petitioner had delayed challenging these appointments. The Court held that the Petitioner was not entitled to challenge the appointments due to unexplained delay.
7. Alleged Denial of Inspection of Statutory Records:
The Petitioner alleged that the Respondents denied him inspection of statutory records. The Court found that the records were regularly filed with the ROC and available on its website. The Petitioner had not sought inspection during the trial, and thus, the allegation was found to be untenable.
8. Alleged Siphoning of Funds:
The Petitioner alleged that the Respondents siphoned off funds from the company. The Court found that the Respondents had invested significant amounts in the company's construction and that the premises were let out to M/s Bizerba with the Petitioner's knowledge. The allegation was rejected as baseless.
Order:
1. The petition stands dismissed.
2. Interim orders, if any, and C.A., if any, stand disposed of accordingly.
3. No order as to costs.
4. Let a copy of the order
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2013 (12) TMI 1633
Issues involved: The appeal challenges the order of the Ld. CIT(A)-I, Pune dated 15-06-2012 for the A.Y. 2009-10, specifically regarding the treatment of the assessee's income as agricultural income u/s. 2(1A)(b)(ii) of the Income-tax Act, 1961 and the exclusion of said income u/s. 10(1) of the Act.
Summary:
The assessee company engaged in plant floriculture, tissue culture, and horticulture activities, claiming the income derived as agricultural income and seeking exemption u/s. 10(1) of the Income-tax Act for A.Y. 2009-10. The Assessing Officer, despite a previous favorable decision by the ITAT, Pune, declined to follow the order due to an appeal filed by the Department to the High Court u/s. 260A. The Ld. CIT(A) referred to the ITAT decision in the assessee's own case for A.Y. 2004-05 and allowed the claim, leading to the Revenue's appeal.
The Tribunal found that the issue had been previously decided in favor of the assessee by the ITAT, Pune in various years, including A.Y. 2004-05 and 2007-08. The Tribunal upheld the decision based on detailed reasoning and legal precedents, concluding that the income from the agricultural operations should be treated as agricultural income u/s. 2(1A)(b)(i) of the Act and excluded from total income u/s. 10(1). The Tribunal confirmed the Ld. CIT(A)'s order based on consistency with previous decisions in the assessee's case.
Given the consistent decisions in the assessee's favor by the Tribunal in previous years, the Tribunal dismissed the Revenue's appeal for the current A.Y. 2009-10, upholding the order of the Ld. CIT(A) regarding the treatment of income as agricultural income and the exemption u/s. 10(1) of the Act.
Therefore, the Revenue's appeal was dismissed, and the order of the Ld. CIT(A) was confirmed based on the Tribunal's previous decisions in the assessee's case, establishing the income derived from agricultural activities as qualifying for exemption under the relevant sections of the Income-tax Act.
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2013 (12) TMI 1632
Issues: Disallowance of Cenvat credit for tyres used in Low Profile Dump Trucks and spares of Ventra Locomotives by jurisdictional Assistant Commissioner upheld by Commissioner (Appeals).
In the present case, the appellant had taken Cenvat credit for tyres used in Low Profile Dump Trucks and spares of Ventra Locomotives during specific periods. The jurisdictional Assistant Commissioner disallowed the Cenvat credit for both items, confirmed the demand along with interest, and imposed penalties. The Commissioner (Appeals) upheld these decisions, leading to the filing of separate appeals by the appellant.
Issue 1 - Cenvat Credit for Tyres:
The appellant argued that the eligibility for Cenvat credit of tyres for Low Profile Dump Trucks had been previously decided in their favor by a Tribunal judgment in their own case. The appellant cited the specific Tribunal's judgment supporting their claim. The appellant contended that the impugned order disallowing the Cenvat credit for tyres was incorrect. On the other hand, the ld. DR defended the orders based on the Commissioner (Appeals)'s findings.
Issue 2 - Cenvat Credit for Spares:
Regarding the Cenvat credit for spares of Ventra Locomotives, the appellant also relied on a Tribunal's Final Order in their favor. They argued that the Commissioner (Appeals) incorrectly disallowed the Cenvat credit for these spares. The ld. DR reiterated the findings of the Commissioner (Appeals) in defense of the decisions.
Judgment:
After considering the submissions from both sides and examining the records, the Tribunal found that the issues of eligibility for Cenvat credit of tyres for Low Profile Dump Trucks and spares of Ventra Locomotives had been previously decided in favor of the appellant in separate Tribunal judgments. No contrary judgments were presented. Consequently, the Tribunal set aside the impugned orders disallowing the Cenvat credit for both items. As a result, the appeals were allowed.
*(Dictated & pronounced in open Court)*
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2013 (12) TMI 1631
Issues Involved:
1. Maintainability of simultaneous proceedings under the Punjab VAT Act, 2005, and the Indian Penal Code (IPC).
2. Entitlement of the petitioner to anticipatory bail.
Summary:
1. Maintainability of Simultaneous Proceedings:
The petitioner argued that the provisions of the VAT Act and the IPC cannot be invoked simultaneously for the same offence. The court disagreed, stating that the VAT Act deals with tax evasion and penalties, while the IPC addresses forgery and fabrication of documents. The court cited the Supreme Court's judgment in *Institute of Chartered Accountants of India vs. Vimal Kumar Surana & Another*, emphasizing that a person can be prosecuted under different statutes for different offences arising from the same act, provided they are not punished twice for the same offence. The court concluded that the fabrication of documents is an offence under the IPC, and thus, criminal proceedings under the IPC are maintainable alongside proceedings under the VAT Act.
2. Entitlement to Anticipatory Bail:
The petitioner sought anticipatory bail, arguing that the necessary documents had already been seized and were available with the authorities, negating the need for custodial interrogation. The court initially granted interim anticipatory bail but later vacated it. The court found merit in the State Counsel's argument that custodial interrogation was necessary to determine the actual sale of goods purportedly sold interstate but likely sold within Punjab to evade higher taxes. The court noted that the petitioner had not cooperated with the investigation despite being on interim bail for two months. Consequently, the petition for anticipatory bail was dismissed, and the interim order was vacated.
Conclusion:
The court held that simultaneous proceedings under the VAT Act and IPC are maintainable and dismissed the petition for anticipatory bail due to the petitioner's lack of cooperation in the investigation. The observations made were specific to the context of the anticipatory bail request and not on the merits of the case.
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2013 (12) TMI 1630
Whether the respondent/assessee is liable to pay service tax in the form of cash and also as to whether the respondent is entitled to utilise Cenvat Credit for paying service tax?
Held that: - the respondent/assessee is not liable to pay service tax in the form of cash and also entitled to utilise Cenvat credit for the purpose of paying tax - reliance placed in the case of Commissioner of Service Tax Versus Hero Honda Motors Ltd. [2012 (12) TMI 734 - DELHI HIGH COURT], where it was held that there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA services.
Appeal dismissed - decided against Revenue.
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2013 (12) TMI 1629
Issues Involved:
1. Cancellation of Bail
2. Compliance with Proviso to Section 439(1) of Cr.P.C.
3. Allegations of Pressure Tactics and Intimidation
4. Locus Standi of Respondents to File Application for Cancellation of Bail
5. Transfer of Trial
Summary:
Cancellation of Bail:
The appeal challenges the High Court's order dated 6.8.2012, which canceled the bail granted to the appellant in Crime No. 13/2006. The appellant, along with 56 others, was charged with various offences u/s 120-B, 406, 409, 411, 420, 465, 466, 468, 471, 109 read with Section 34 of IPC, and Sections 13(2) read with 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. The High Court's order was stayed by the Supreme Court on 7.8.2012.
Compliance with Proviso to Section 439(1) of Cr.P.C.:
The High Court noted that the Sessions Judge did not comply with the mandatory proviso to Section 439(1) of Cr.P.C., which requires giving notice to the public prosecutor before granting bail in cases punishable with life imprisonment. The Sessions Judge's order was passed without giving adequate time to the prosecutor to respond to the charge-sheet, which ran into more than 268 pages.
Allegations of Pressure Tactics and Intimidation:
The investigating officer, Mr. Pandharinath Ramchandra Pawar, filed an affidavit detailing how the appellant and other accused resorted to pressure tactics, including leading a 'morcha' to the police station and creating an atmosphere of terror in Jalgaon. The affidavit highlighted the appellant's involvement in these activities, which aimed to intimidate witnesses and the investigation machinery.
Locus Standi of Respondents to File Application for Cancellation of Bail:
The appellant contended that respondent Nos. 2 to 4 had no locus standi to file the application for cancellation of bail. However, the High Court's inherent jurisdiction u/s 482 of Cr.P.C. allows it to entertain such applications to secure the ends of justice. The respondents, being residents and taxpayers of Jalgaon, were deemed to have the locus standi to seek cancellation of bail.
Transfer of Trial:
Given the attempts to intimidate witnesses and the investigating officer, the Supreme Court ordered the transfer of the trial from Jalgaon to Dhule to ensure a free and fearless atmosphere for the trial. The trial will be conducted by the Addl. Sessions Judge, Dhule, in charge of cases under the Prevention of Corruption Act, 1988.
Conclusion:
The appeal was dismissed, and the appellant was directed to surrender to the City Police Station, Jalgaon, within two weeks. The trial records were ordered to be transferred to the Addl. Sessions Judge, Dhule, within four weeks. The observations made were specific to the issue of bail cancellation and not indicative of the trial's outcome.
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2013 (12) TMI 1628
100% EOU - CENVAT credit - input services - renting of immovable property service - credit has been denied only on the ground that services were not received in the manufacturing premises and the premises where it has been received was not registered under Service Tax statute - Held that:- There is no such requirement as far as the input services are concerned that the same should have been received in the manufacturing premises and the premises where received should be registered one - appellant has made out a very strong case for eligibility of the credit.
The matter does not require any further consideration since the basis on which credit was denied is not at all sustainable - appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1627
Issues involved: Refund claim under Notification 41/2007 for various services denied due to lack of correlation with export goods.
Summary:
The appellant, an exporter, filed a refund claim under Notification 41/2007 for services including Goods Transport Agency service, CHA, and banking and other financial services. Both lower authorities rejected the claim, leading to the appellant's appeal. The appellant argued compliance with the conditions of the notification and cited Circular No. 120/1/2010-S.T., which clarified the refund procedure based on payment of Service Tax, utilization of services, and entitlement under the notification. The appellant contended that they met all conditions for the refund claim. The respondent reiterated the impugned order.
Upon considering the submissions, it was noted that Service Tax had been paid, services had been utilized, and the services qualified under Notification 41/2007. The only reason for denial was the lack of correlation between the services provided and the export goods. The Board Circular clarified the criteria for refund eligibility, emphasizing payment of Service Tax, utilization of services, and alignment with the notification. Since these facts were undisputed, the impugned order was deemed unsustainable and set aside. The appeals were allowed with consequential relief, and the Adjudicating Authority was directed to comply with the order within 30 days of receipt.
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