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Showing 141 to 160 of 16027 Records
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2014 (12) TMI 1297
Mismanagement, oppression and misappropriation - grievance of the Plaintiff briefly put is that Defendant No. 2 has obtained and/or applied for several patents in his own name whereas the patents ought to have been obtained and/or applied for in the name of Defendant No. 1 - Held that:- Plaintiff though holding 12% of the shares of the Company, is all alone in this action particularly when the other minority shareholders, who collectively own about 13% of the shares of Defendant No. 1, are against the action and do not consider it in best interest of Defendant No. 1. Therefore, such a Plaintiff should not be entitled to maintain this derivative action or any relief on this ground.
It is the Plaintiff's case that the patents have been wrongly applied for or obtained by Defendant No. 2 though he is not entitled to the same and in fact it is Defendant No. 1 who is entitled to the same but if we accept the Plaintiff's contention then any person, it may include the Plaintiff himself, who is a competitor as explained later, or any other competitor may apply for revocation/cancellation of the patent. If the patent is cancelled then Defendant No. 1 also will not be able to use the patents, which it is now using, royalty free. It will cause a tremendous loss to the Company-Defendant No. 1. Therefore, this action can never be considered to be in the interest of Defendant No. 1
Plaintiff being a competitor with the seemingly malicious intent against Defendant No. 1, cannot be believed when the Plaintiff says that the derivative action is bona-fide and in the best interest of Defendant No. 1. On this ground also the Plaintiff cannot maintain this action and reliefs sought by the Plaintiff cannot be granted.
In the case under consideration, the suit in the garb of a derivative action is really prompted by family hostilities and personal anger that the Plaintiff had against Defendant No. 2. In fact the Plaintiff/his mother had also filed a criminal complaint against Defendant No. 2 and the police whilst closing the case observed that having regard to her age and physical and mental state, the criminal complaint has not been filed by her (the mother) but at the instance of the Plaintiff and there appears to be a family dispute. Even previous litigations initiated by the Plaintiff is also evidence of family disputes/disputes of a personal nature now being again sought to be litigated in the garb of a derivative action.
Therefore on this ground also, the Plaintiff will not be entitled to any relief as sought.
It is also quite obvious that the Plaintiff having not succeeded in his earlier actions against Maharukh Murad Oomrigar, his sister and the Defendant No. 2, he is re-agitating the same points in the garb of a derivative suit.
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2014 (12) TMI 1296
Penalties - confiscation - software component of diamond scanning machine - The Customs authority holds a belief that such software would form part of the imported goods and therefore, would invite customs duty along with the hardware - service tax with interest already paid - Held that: - where the same import of software has been held by one wing of the department as providing of service and also levied service tax on the same, continued attachment by the customs department on the premise that the same was liable to confiscation on the ground of misdeclaration of valuation of the imported goods for the purpose of customs duty, would not be permissible - the petitioner does not dispute its service tax liability and has accepted the principal component of tax without appeal - petition allowed.
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2014 (12) TMI 1295
Auction procedure - Held that:- The procedure contemplated under Rule 60 and 61 of Schedule-II of Income Tax Act, 1961 and the petitioner having not exercised his right to set aside the sale of the property under Section 30 of the Act within the stipulated time, we are of the view that the Auction Purchaser is entitled to have the sale certificate of Schedule-II property and the petitioner is entitled to get refund of the amounts deposited with accrued interest, if any. There is no merit in the writ petitions and the same are dismissed.
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2014 (12) TMI 1294
Penalty levied u/s 271(1)(c) - change of head of income - Income From Property Or Business Income - Held that:- There is no dispute about disclosure of relevant information in the return of income relating to the impugned receipts, which were brought to tax under the head ‘house property’ by the AO. Thus it is a case of change of head of income and there is no default so far as disclosure of relevant information in the return of income is concerned.
In the instant case we find that the assessee is consistently furnishing relevant receipts under the head ‘profits and gains of business’ and the claim of the assessee was consistently accepted by the Revenue. Assessee offered the same for these years also but the AO changed the head of income only in view of the subsequent judgement in the case of Shambhu Investment (P) Ltd. (2003 (1) TMI 99 - SUPREME Court ). Therefore, there is nothing malafide from assessee’s side. The AO has not information to demonstration that the claim of the assessee in the return of income is not boanafide.
Case of Bennet Coleman & Co. [2013 (3) TMI 373 - BOMBAY HIGH COURT] says - "When income received has been disclosed in computation of income and there is only a change of head of income; in the absence of any facts that the claim of the assessee was not bonafide, the penalty cannot be imposed u/s 271(1)(c) - Decided in favour of assessee.
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2014 (12) TMI 1293
Penalty u/r 26 of the CER, 2002 - clandestine removal of goods - duty paying invoices - Held that: - As the proceedings against M/s. Jawala Steel Corpn. against whom the allegations of clandestine removal of goods is there and same has not been adjudicated by the adjudicating authority therefore, imposing penalty against the appellants before me is pre-mature - matter remanded back to the adjudicating authority to adjudicate these matters also along with the cases of M/s. Jawala Steel Corpn. - appeal allowed by way of remand.
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2014 (12) TMI 1292
Suppression of material fact - plot in question is transferred in the name of respondent No.2 on the record of the GIDC [Gujarat Industrial Development Corporation] Held that:- There is a very thin line between suppression of material fact, and non-disclosure of a material fact. On conjoint reading of the pleadings of the petitioner in the civil suit in question and the present petition, this Court finds that, the impugned order passed by the respondent - Corporation is the consequence of the sale deed dated 04.03.2013 and both are inter woven aspects. For this reason the challenge to the sale deed is a material fact for the present petition. Once it is found that, challenge to the sale deed dated 04.03.2013 is a material fact for this petition, non-disclosure thereof would not have any less effect then suppression thereof. The consequence thereof would be, dismissal of this petition.
Additionally this Court finds that, had it been pointed out in the petition itself, then what is noted in 6.1 above would not have been a factor against the petitioner, but then, on the contents of the said civil suit, the petitioner could not have been granted any relief by this Court on merits, since during the pendency of the challenge to the said sale deed, the consequential order passed by the respondent Corporation cannot be interfered with.
Viewing from one more angle this Court finds that, had the civil suit been not filed at all, then neither 6.1 or 6.2 would have been a factor against the petitioner, but then also on the face of the said sale deed, the petitioner could not have been granted any relief, without any successful challenge to the said sale deed.
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2014 (12) TMI 1291
Validity of arbitrial award - unauthorized transactions and trading - transactions carried without demanding any margin money from the claimant - complaint with the grievance cell of MCX - arbitral tribunal rendered an award and directed the respondent to pay an amount of ₹ 806031.69 being the closing balance in the account of claimant with interest at 18% p.a. till payment and an amount of ₹ 78,186.70 which was deducted from the account of claimant as charges and tax due to trading unauthorizedly in her account from 5th July 2011 till 30th November 2011 with interest at 18% from 5th July 2011 till payment. Also refund the claimant an amount of ₹ 35,845.50 with interest.
Held that:- A perusal of record indicates that the respondents have failed to prove that any demand was made by the respondent on the claimant for deposit of any margin money, even if there was a debit balance in the account of claimant on a particular date. On the contrary, the records produced by the respondent itself indicates that the respondent has carried out large number of transactions, including purchase transactions, in the account of the claimant on the date of debit balance. It is thus clear that the claimant would not have given any such instructions to the respondent for carrying out such transactions on behalf of the claimant.
The respondent has failed to produce any proof of any instructions from the claimant to carry out any such transactions or that the transactions were carried out by the claimant herself online or that she was personally present to carry out such transactions in the office of the respondent and also having failed to prove that the respondent had demanded any margin money, which the claimant had failed to deposit and, therefore, the respondent was justified in squaring off of the transactions, standing in the account of claimant. Since the respondent has carried out the transactions without demanding any margin money from the claimant and without any instructions from the claimant though there was debit balance, all such transactions carried out by the respondent, without any instructions and without any demand for margin money, were unauthorised and no such debit could have been made in the account of claimant in respect of such unauthorised transactions. A trading member who has carried out any such transactions in breach of bye-laws of MCX cannot make any claim against the constituent and/or debit any amount to the account of the claimant in respect of such unauthorised transactions.
A perusal of arbitral award indicates that the arbitral tribunal has rendered a finding of fact that there was a credit balance of ₹ 20 lakhs in the account of the claimant on 10 th May 2011 and, therefore, it was reasonable to conclude that the "Hold" instruction was issued by the claimant to Mr.Priotosh Ghosh on or immediately after 10th may 2011. The arbitral tribunal has also rendered a finding that there was no evidence produced by the respondent and that the respondent had not questioned the entries in the telephone bills filed by the claimant for the period 20 th March 2011 to 26th June 2011, showing that there had been no record of any telephone talks between her and the respondent. It is also held by the arbitral tribunal that the respondent had expressed inability to produce any visitor's book to substantiate the allegations that the claimant used to visit its office frequently to instruct its agent Mr.Priotosh Ghosh about her trading.
On the issue of margin money it is held by the arbitral tribunal that there was credit balance for the all the period, except on three dates. The respondent had admittedly not issued any call money notice to the claimant to make good the short fall on those three dates and on the other hand, had done brisk trading on those dates in her account, without any margin, which indicates that the allegations about trading in her account without her consent, can hardly be brushed aside. The arbitral tribunal also rendered a finding after perusal of the copy of the passport, showing that claimant was out of India from 5 th July 2011 till 24th August 2011 and there had been no communication between the parties and the respondent was not able to make out a case that the claimant had carried out online trading from abroad. The respondent had carried out 332 transactions during the concerned period out of which 116 were new sauda and remaining were sale of transactions, either before or after expiry date.
During the said period, the turnover amount of debit was to the extent of ₹ 50,62,355 and turnover of credit was to the extent of ₹ 44,88,687.93 resulting in the net amount of ₹ 6,12,761.01, including tax alleged to be due from the claimant. It is held that the respondent was not able to show the authority of transactions on 25th November 2011 which was after the period when the claimant had formally registered her complaint about unauthorised trading in her account on 7th September 2011.
In my view, the learned Counsel for the respondent could not demonstrate from various findings on record contained in paras 12 to 25 of the award as to how the same are perverse. In my view, since the findings of fact recorded by the arbitral tribunal are not perverse, this court cannot interfere with such findings of fact under section 34 of the Arbitration Act
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2014 (12) TMI 1290
Extension of stay order - automatically vacation of stay order after one year - recovery of dues - the decision in the case of M/s. Chhote Lal Virendra Kumar Jain Versus Union of India & Others [2014 (5) TMI 262 - RAJASTHAN HIGH COURT] contested, where it was held that it is the settled principles of law and which is consistent and recognized that where a case is not considered because of multiplicity of business of the Court the party ought not to be prejudiced by that delay and when an act of the Court can prejudice no man, ditto would be for an omission in keeping with the aforesaid principles that if the matter has not been taken up for consideration on a given date at least the litigant cannot be left to suffer for suchreason over which he has no control - Held that: - the decision in the above case upheld - appeal dismissed.
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2014 (12) TMI 1289
Condonation of delay - the decision in the case of Indus Towers Ltd. Versus UOI and Ors. [2013 (6) TMI 294 - DELHI HIGH COURT] contested - Held that: - appeal dismissed only on the ground of delay.
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2014 (12) TMI 1288
Schemes without obtaining registration from SEBI - Collective Investment Schemes - Whether MVL is operating a CIS without obtaining registration from SEBI? - Held that:- MVL has uniformly priced the units in 'IBC project', situated at different locations/floors. This gives an inference that the units are being sold at a fixed price, which is generally not the practice in a real estate transaction.
As refer to a complaint received by SEBI on May 16, 2014, wherein it has been alleged that since the year 2012, MVL has regularly defaulted on payment of agreed assured return. In another investor complaint received by SEBI on August 31, 2014, the complainant alleged that MVL is not giving the assured returns, assured rental income to its customers and that MVL has advised for cancellation of the 'buyers' agreement' and 'assured returns agreement' pertaining to IBC Project. A copy of these complaints have been forwarded by SEBI to MVL. The contents of these complaints further strengthens the observations made above that the IBC Project is not purely a real estate transaction.
In view of the foregoing, the plans/schemes of MVL is in the nature of a CIS as all the four conditions specified under Section 11AA (2) of the SEBI Act are satisfied. As find that the Company is engaged in the fund mobilising activity from the public by floating/sponsoring/launching 'collective investment schemes' as defined in Section 11AA of the SEBI Act. Therefore, have no hesitation in holding that MVL and its directors, viz., Mr. Prem Adip Rishi, Mr. Praveen Kumar, Mr. Rakesh Gupta, Mr. Vinod Malik, Mr. Vinod Kumar Khurana, Mr. Vijay Kumar Sood and Ms. Kalpana Gupta are engaged in the fund mobilising activity by floating/sponsoring/launching, unregistered/unauthorised CIS, as defined in the Section 11AA of the SEBI Act.
MVL Limited [PAN:AAFCM2372M] and its directors viz., Mr. Prem Adip Rishi [PAN:AGQPR9177H; DIN: 00020611], Mr. Praveen Kumar [PAN:ADQPK8192E; DIN: 01332414], Mr. Rakesh Gupta [PAN:AAJPG3712C; DIN: 00020638], Mr. Vinod Malik [PAN:ABLPM6562D; DIN: 01275161], Mr. Vinod Kumar Khurana [PAN:AAIPK7996F; DIN: 01863652], Mr. Vijay Kumar Sood [PAN:ACBPS9229G; DIN: 01325491] and Ms. Kalpana Gupta [PAN:AAGPG5434L; DIN: 02300348] shall abstain from collecting any money from the investors or launch or carry out any Collective Investment Schemes including the schemes which have been identified as a Collective Investment Scheme in this Order.
MVL Limited and its directors viz., Mr. Prem Adip Rishi, Mr. Praveen Kumar, Mr. Rakesh Gupta, Mr. Vinod Malik, Mr. Vinod Kumar Khurana, Mr. Vijay Kumar Sood and Ms. Kalpana Gupta, shall wind up the existing Collective Investment Schemes and refund the monies collected by the said company under the schemes with returns which are due to its investors as per the terms of offer within a period of three months from the date of this Order and thereafter, within a period of fifteen days, submit a winding up and repayment report to SEBI in accordance with the SEBI (Collective Investment Schemes) Regulations, 1999, including the trail of funds claimed to be refunded, bank account statements indicating refund to the investors and receipt from the investors acknowledging such refunds.
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2014 (12) TMI 1287
Benefit of reservation to the employees of the society in the matter of their promotion - appeal by South Central Railway Employees Co-Op. Credit Society Employees’ Union - Held that:- Once this Court in SOUTH CENTRAL RAILWAY EMPLOYEES CO-OPERATIVE CREDIT SOCIETY Versus REGISTRAR OF CO-OPERATIVE SOCIETIES [1998 (1) TMI 510 - SUPREME COURT] had decided that the employees of the Society were not entitled to promotion on the basis of any reservation policy, the High Court could not have come to a different conclusion, when the judgment delivered by this Court above was sought to be implemented by issuance of an order dated 12th June, 1998 and the High Court had committed a grave error by setting aside the said order dated 12th June, 1998.
If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when [1998 (1) TMI 510 - SUPREME COURT] was decided.
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2014 (12) TMI 1286
Discharging any public function or public duty - Maintainability of the writ petition under Article 226 of the Constitution of India against the respondents herein - Held that:- In the present case, since ICID is not funded by the Government nor it is discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature. It is clear from the reading of the impugned judgment, the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226.
We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned senior counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character.
There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal.
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2014 (12) TMI 1285
Valuation - includibility - whether the free supplies of material provided by the service recipient to the appellant is includible in the taxable value of the service provided by the appellant or not? - Held that: - similar issue decided in the case of Bhayana Builders Pvt. Ltd. v. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] wherein this Tribunal held that the free supplies of raw material by service recipient is not includible in the taxable value of services - the free supplies by the service recipient is not includible in the taxable services provided by the appellants - appeal allowed - decided in favor of appellant.
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2014 (12) TMI 1284
Jurisdiction of Settlement Commission - Customs duty – Mis-declaration - Smuggling and Confiscation of Gold & Coins in India - Scope of Section 127B of the Customs Act, 1962 u/s 124 - Penalty u/s 112 and 114AA of Act – the decision in the case of Komal Jain Versus Union of India And Another [2014 (4) TMI 907 - DELHI HIGH COURT], contested, where it was held that There was no mandate to limit the jurisdiction of the Settlement Commission in such a manner, Providing an unduly narrow interpretation to Section 127B to nip its jurisdiction at the bud does not cohere with the text or context of the provision - appeal dismissed.
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2014 (12) TMI 1283
Trading addition - GP determination - rejection of books of accounts - Held that:- There is no dispute that the assessee in his statement dated November 4, 2011 has categorically admitted that the bank account with State Bank of India, Sakti bearing Account No. 10800468872, was not disclosed to the Revenue. As per the said account, there were voluminous transactions during the year under consideration. It is also apparent from the record that the assessee himself accepted the credits in the bank account aggregating to ₹ 89,58,650 as turnover from sale of steel rods and debits and purchase and other expenses. There is no material on record to controvert the findings given by the lower authorities.
Thus there is substance in the alternative submission of assessee and, therefore, we hold that the gross profit rate of 8 per cent. appears to be on the higher side. Keeping in view the entire facts and circumstances of the present case, ends of justice will meet in this case if the gross profit rate is restricted to 7 per cent. as against gross profit of 8 per cent. confirmed by the learned Commissioner of Income-tax (Appeals).
Addition on account of initial investment - Held that:- In the instant case the gross profit rate has been applied after rejecting the book result and, therefore, no separate addition of ₹ 5,00,000 is called for in respect of purchase and introduction of cash. Shri Sameer Singh, learned counsel for the assessee also referred to the decision in the case of CIT v. Banwari Lal Banshidhar [1997 (5) TMI 37 - ALLAHABAD High Court] wherein it was observed that (page 232) " when the gross profit rate is applied, that would take care of everything and there was no need for the Assessing Officer to make scrutiny of the amount incurred on the purchases by the assessee". In view of the above decisions, we are of the view that the addition made by the Assessing Officer and confirmed by the learned Commissioner of Income-tax (Appeals) is unwarranted and uncalled for. Accordingly, we delete the addition deposited in the bank account on April 8, 2008.
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2014 (12) TMI 1282
Validity of reopening of assessment - share application received by the assessee is not a genuine transaction but is on account of accommodation entries received thus addition u/s 68 - Held that:- Reasons are nothing but the summary of statement of Shri Giriraj Vijayvargiya during the search as well as the assessment proceedings of Shri Giriraj. It is manifest from these reasons recorded by the Assessing Officer that four concerns are mentioned which are controlled by Shri Vikas Berlia in which the allegation of giving accommodation entries in the shape of share application money was made by Shri Giriraj in his statement.
There is no allegation of AO that the share applicants of the assessee have any connection with Shri Giriraj Vijayvargiya or with Shri Vikas Berlia. Once these share applicant companies are unrelated/independent parties and have no connection either with Shri Giriraj or with Shri Vikas Berlia then there was nothing came to the possession of the Assessing Officer to believe that the share application money received by the assessee is bogus transaction and consequently the income assessable to tax has escaped assessment. From the reasons recorded by the Assessing Officer, there is no indication about the relation between the share application money and the bogus accommodation entries given by Shri Giriraj.
The sufficiency of evidence or material for forming the belief is not open to scrutiny but the existence of belief is must for a valid exercise of power. The reasons recorded by the Assessing Officer do not indicate even a remote nexus between the application money received by the assessee with the alleged accommodation entries provided by Shri Giriraj Vijayvargiya or the alleged beneficiary of the accommodation entries. - Decided in favour of assessee.
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2014 (12) TMI 1281
Sub-contract - levy of tax - The case of the petitioners is that only exemption was extended insofar as entry tax is concerned for a period of three years, but not in the case of VAT - Held that: - It is for the petitioners to appear before the Government and the Government to take policy decision and pass orders in accordance with law. Petitioners shall be called up on by the Government to hear on the issues and take policy decision depending on various facts and circumstances in the case on hand. However, so far as payment of arrears of tax is concerned it is for the petitioner to exhaust the remedy available under law - petition dismissed.
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2014 (12) TMI 1280
Bogus share transactions - statement given by Mr. Mukesh Choksi - Held that:- It is not in dispute that the Assessing Officer treated the transaction bogus solely by relying upon the statement of Mr. Mukesh Choksi, who remained unconfronted, though, was called for as per Section 133(6) of the Income Tax Act, 1961. In response, it was communicated to the Assessing Officer that no adequate assistance could be given as the entire record of Mahasagar Securities was earlier impounded and was in custody of Income Tax Department. In these circumstances, Shri Mukesh Choksi was not confronted by the assessee. In absence of it, the statement of Shri Mukesh Choksi could have not been used against the assessee. - Decided in favour of assessee.
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2014 (12) TMI 1279
Consideration of representation - Manufacture - petitioner requests that while considering the representation, the decisions of the Supreme Court in Hyderabad Industries Ltd. vs. Union of India [1999 (5) TMI 29 - SUPREME COURT OF INDIA] and Commissioner of Central Excise and Customs, Bhubneshwar-I vs. Tata Iron and Steel Co. Ltd [2003 (4) TMI 104 - SUPREME COURT OF INDIA] be also considered - no further directions are necessary in this writ petition - petition disposed off.
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2014 (12) TMI 1278
Forfeiture of security deposit - the case of petitioner is that the petitioner was being saddled with consequence of forfeiting part of its security amount on account of not lifting the auction lot within the prescribed period even when the similar facilities in past were given to many of the auction purchasers by the Customs Department - Held that: - the Customs Department must maintain a uniform yardstick. Actually, here the petitioner has been saddled, with an adverse consequence of forfeiture of ₹ 2,65,000/- only because he could not deposit the auction amount within a period of 15 days but in the similar cases in past, about which full details has been given by the petitioner in the supplementary affidavit, they were allowed to lift the auctioned lot even after expiry of the period fixed for depositing the full amount of auction - the interest of revenue cannot be bigger than the principle of observance of the rules but then in commercial law even the Government is supposed to take the interest of revenue into prime consideration - the petitioner will be entitled to lift the entire lot on complete payment of ₹ 11,74,920/- - petition allowed - decided in favor of petitioner.
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