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Showing 121 to 140 of 23051 Records
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2019 (12) TMI 1570
Validity of Resolution Plan - rejection of resolution plan on the ground that the entire information has not been provided to them for complying with the terms and conditions of the resolution plan - HELD THAT:- In view of the allegations and counter allegations made against both the parties, a separate hearing is required to decide the merits of each application. In the meanwhile, as an interim measure, it is prudent on the part of this Bench, after going through an elaborate discussion during the course of the hearing, that the possession be handed over to the CoC, who in turn will handover the same to the erstwhile RP.
The successful Resolution Applicant shall hand over the possession to the CoC, after an independent agency or a person takes the inventory and examine the status and the working condition of the machines and then the CoC, in turn shall handover the same to erstwhile RP. The entire process of taking inventory and handing over the possession shall be video graphed and shall be taken in the presence of both the parties - the restoration of the CIRP and the erstwhile RP shall continue as RP henceforth. All the privileges, rights available to the RP under the CIRP under Section 14 mutatis mutandis shall be applicable until the proper decision is taken in this regard.
List all the MAs for further consideration on 3.2.2020.
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2019 (12) TMI 1569
Penalty u/s.271D - default u/s 269SS - Mandation of recording satisfaction for initiation of penalty proceedings - as per AO assessee had accepted deposits exceeding ₹ 20,000/- otherwise the account payee cheques or bank drafts in contravention of provision of section 269SS - HELD THAT:- Hon'ble Apex Court in the case of CIT vs. Jai Laxmi Rice Mills [2015 (11) TMI 1453 - SUPREME COURT] dealing with the levy of penalty under section 271D of the Act, has held that if there is no satisfaction recorded in the order of assessment regarding initiation of penalty proceedings under section 271D of the Act, then no penalty thereunder could be levied.
As in the case in hand no satisfaction for initiation of penalty proceedings under sections 271D and 271E of the Act has been recorded in the orders of assessment. In this factual matrix of the case and respectfully following the decision of the Hon'ble Apex Court in the case of Jai Laxmi Rice Mills (supra), we hold that since admittedly no satisfaction has been recorded for initiating penalty proceedings under sections 271D and 271E of the Act in the case on hand in the order of assessment for A.Y. 2000-01, therefore no penalty thereunder could be levied. In this view of the matter we cancel the penalty of 1,45,000/- each levied under sections 271D and 271E of the Act for A.Y. 2000-01. Consequently the assessee’s additional grounds are allowed in both the appeals.
Since the position in the present case is identical as no satisfaction has been recorded by the ld.AO before initiating penalty u/s.271D of the I.T.Act, therefore while relying upon the judgments as mentioned above, we hold that since no satisfaction had been recorded for initiating penalty proceedings u/s.271D of the Act in the case in hand, therefore, no penalty could be levied. - Decide in favour of assessee.
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2019 (12) TMI 1568
Seeking direction to Respondent No.3 to remove the seal & release the said property of the Petitioner No.2 including the Godown - seeking to refrain from illegally obstructing the activities of the said factory without any justified cause and/or reason - HELD THAT:- Shri Sureshkumar learned Counsel for respondent No.3 submitted that petitioner No.2 owes provident fund dues to the tune of ₹ 23 crores approximately. He submits that respondent No.3 proposes to either file Review Petition before NCLT or challenge the order dated 11/11/2019 before the Appellate Tribunal. Respondent No.3 is at liberty to take appropriate action. As on today they have to comply with the order of NCLT. As far as provident fund dues are concerned and in as much as said order is passed by NCLT, dues are arrived at on the basis of respondent No.3’s representation.
Respondent No.3 is directed to remove the seal by tomorrow affixed on the property of the petitioner No.1 taken over by petitioner No.2 - Petitioner No.1 shall deposit with respondent No.2 an amount of ₹ 40,77,899/- within a week from today - Balance amount of ₹ 4 Crores as per NCLT order dated 11/11/2019 shall be deposited by the petitioner with respondent No.3 on or before 10/02/2020.
Petition allowed.
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2019 (12) TMI 1567
Disallowance u/s.14A - disallowance as liable to be restricted to the exempt income - HELD THAT:- As it is noticed, the assessee has not filed an appeal against the confirmation of the disallowance u/s.14A and as the Revenue has not been able to point out any error in the order of the learned CIT(A) in restricting the disallowance u/s.14A being 0.5% of the average value of the investment, the order of the CIT(A) on the issue stands confirmed. Appeal of the Revenue is dismissed.
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2019 (12) TMI 1566
Maintainability of petition - availability of alternative remedy of appeal - Classification of services - Demand of service tax on Notice pay - facilitation of termination of employment or not - HELD THAT:- Petition allowed by placing reliance in the case of GE T & D INDIA LIMITED (FORMERLY ALSTOM T & D INDIA LIMITED) VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE [2020 (1) TMI 1096 - MADRAS HIGH COURT] where it was held that Though normally, a contract of employment qua an employer and employee has to be read as a whole, there are situations within a contract that constitute rendition of service such as breach of a stipulation of noncompete. Notice pay, in lieu of sudden termination however, does not give rise to the rendition of service either by the employer or the employee.
Petition closed.
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2019 (12) TMI 1565
Reopening of assessment u/s 147 - Petitioner challenges the Notice u/s 148 - Main contention raised by the Petitioner is that AO has no jurisdiction to proceed to issue the notice as the jurisdictional requirements are not present - HELD THAT:- Respondents seeks time to take instructions and file reply, if necessary.
Considering the averments made in the Petition and that respondents are seeking time, there shall be ad-interim stay to the impugned notice.
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2019 (12) TMI 1564
Revision u/s 263 - reopening of assessment u/s 147 initiated pursuant to the revisional order of ld. Ld. Pr. CIT-3, Kolkata, passed u/s 263 - HELD THAT:- Assessee had preferred an appeal challenging the revisional order of ld. Pr. CIT-3 dated 30.03.2015 before this Tribunal; and the Tribunal was pleased to set aside the revisional order of the ld. Pr. CIT on 06.04.2016. Consequently the order of the AO passed giving effect to the ld. Pr. CIT’s order dated 30.03.2015 became ab-initio-void and resultantly non-est in the eyes of law.
The principle applicable is based on legal maxim “Sublato Fundamento Credit Opus” meaning, in case a foundation is removed, the superstructure falls.
In the case of Badrinath vs Government Of Tamil Nadu And Ors. [2000 (9) TMI 1044 - SUPREME COURT] held that once the basis of a proceeding is gone, all consequential orders and acts would fall on the ground automatically which is applicable to judicial/quasi-judicial proceedings.
In case in hand, the AO has passed the order dated 29.01.2016 by giving effect to the order of the ld. Pr. CIT dated 30.03.2015 and when that order of the ld. Pr. CIT has been set aside by the Tribunal by order dated 06.04.2016, the foundation of the AO’s order dated 29.01.2016 has been removed and therefore all consequential action falls and therefore the ld. CIT(A) rightly allowed the appeal of the assessee - Thus dismiss all the appeals of the Revenue.
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2019 (12) TMI 1563
Late fee u/s 234E - delay of 390 days in filing of TDS statements has been occurred - imposition of late fee for delay in filling of TDS statement(s) prior to amendment by way of finance Act, 2015 which came into effect from 1st June 2015 - whether the late can be imposed for the period prior to 1st June 2015 when the Amendment was made vide Finance Act 2015 and as to whether there was enabling provisions for levy of late fee prior to 1st June 2015? - HELD THAT:- Considering the facts of the instant case are identical to the facts of the orders passed by Hon’ble Karnataka High Court in the case of Fatheraj Singhvi & Ors.[2016 (9) TMI 964 - KARNATAKA HIGH COURT] and M/s. M.G.N. Khalsa High School, Jalandhar [2019 (8) TMI 99 - ITAT AMRITSAR] and in the case of SIBIA HEALTHCARE (P) Ltd.[2015 (6) TMI 437 - ITAT AMRITSAR]we are of the considered opinion that late fee for the delay in filing the TDS statements, cannot be levied for the period prior to 1st June, 2015, hence we are inclined to delete the late fee imposed by the AO and affirmed by the ld. CIT(A). Consequently the appeal is liable to be allowed.
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2019 (12) TMI 1562
Notional interest on Annuity advance to subsidiary - assessee claimed that the advance had been made to the four companies for protecting and holding strategic interest in those companies and in various business initiatives - HELD THAT:- As noticed that the issue of the notional interest on the annuity advance to subsidiaries is now squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case for various Assessment Years and as it is noticed that the learned CIT(A) has followed judicial discipline in following the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case for the earlier Assessment Years referred to supra, as also on the ground that the Revenue has not been able to dislodge the findings on the learned CIT(A), we find no reason to interfere in the order of the learned CIT(A) on this issue. Consequently, this issue is held in favour of the assessee and against the Revenue.
Disallowance u/s.14A r.w. Rule 8D(2)(iii) - CIT(A) had followed the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case and had directed the Assessing Officer to determine and restrict the disallowance u/s.14A to 0.5% on the average investment as provided under Clause-(iii) of Rule 8D(2) - HELD THAT:- As decided in own case [2016 (1) TMI 1028 - ITAT CHENNAI] a part of the expenditure incurred in the manpower and infrastructure facilities diverted for earning exempted income has to be disallowed. As rightly submitted by the learned DR, the Assessing Officer has computed 0.5% of the average investment as expenditure by applying third limb of Rule 8D. Rule 8D(2)(iii) provides for disallowance of an amount equal to 0.5% of the average value of investment, income from which does not form part of the total income, shall be disallowed. Accordingly, the orders of the lower authorities are modified and the Assessing Officer is directed to disallow 0.5% of the average value of investment, the income from which does not form part of the total income - Decided against revenue.
Depreciation of Franchise rights - claim disallowed by AO on the ground that, in the case of the assessee, the franchise has been suspended and the assessee had not been taking part in the tournament - HELD THAT:- As decided in own case [2016 (1) TMI 1028 - ITAT CHENNAI] assessee has claimed only 18.89 crores as depreciation and the Assessing Officer has given an enhanced depreciation of an additional amount of ₹ 12.92 lakhs resulting a depreciation of ₹ 31.81 crores. Similarly, for the assessment year 2015-16, the assessee had claimed 14.17 lakhs, whereas the Assessing Officer has granted ₹ 32.05 crores. Thus, the Assessing Officer has in fact granted the assessee higher depreciation than what has been claimed by the assessee. A perusal of the order of the learned CIT(A) shows that the learned CIT(A) has followed judicial discipline in following the decision of the Co-ordinate Bench it has been held that the Assessing Officer is directed to allow depreciation on the entire cost of ₹ 364 crores - as it is noticed that the issue is squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case issue is decided against the Revenue and in favour of the assessee.
Nature of receipts - Sales Tax subsidy as capital receipts - HELD THAT:- CIT(A) has categorically considered the fact that if the object of the subsidy is to enable the assessee to run a business more profitably, then the receipt is on revenue account. On the other hand, if the object of the assistance under the subsidy is to enable the assessee to set up a new unit or to expand its existing unit, then the receipt of the subsidy was on capital account - CIT(A) has also considered the principles laid down by the Hon’ble Supreme Court in the case of Commissioner of Income-Tax vs. Ponni Sugars and Chemicals Limited . [2008 (9) TMI 14 - SUPREME COURT] - CIT(A) has also recognized the fact that the subsidy was granted to the assessee as incentive to invest in backward areas and consequently the said subsidy granted by the Government in fact was capital receipt. It is also noticed that the learned CIT(A) has recognized with the fact that the Cement Manufacturing Plant at Parli, Beed District in the state of Maharashtra comes under the Industrial Promotion Policy of the Government of Maharashtra and the ‘Package Scheme of Incentives 2007’ invited by the Directorate of Industries, Government of Maharashtra and consequently the assessee has made a fixed capital investment of nearly 152 crores as on 31.03.2011. It is after recognizing this that the learned CIT(A) has granted the assessee the benefit of treating the said subsidy as a capital receipt.
Foreign currency monetary item transaction - HELD THAT:- The amortization has been done by applying the notification issued by the MCA Circular dated 29.11.2011 but in the Memorandum of total income the amortized sum was added back and the entire expenses claimed. Thus, it is not the issue as to the assessee having amortized the deferred revenue expenditure but this is in fact a forex loss incurred by the assessee on account of a loan taken for the general purpose. This is admittedly to be allowed on the revenue filed in line to the decision in the case of Commissioner of Income Tax vs. Woodward Governor India (P) Limited [2009 (4) TMI 4 - SUPREME COURT]. It must also be mentioned here that the Assessing Officer in the assessment order has not disturbed the claim of the assessee on the ground that the loss was capital. The Assessing Officer is disallowing the claim only on the ground that the MCA Circular are not binding on the department. As no error in the accounts of the assessee nor has any facts has been brought out to show that the forex loan taken by the assessee was for the capital asset.
This being so, as also on the fact that the revenue has not been able to dislodge the findings of the facts as arrived by the learned CIT(A) in his order, we find no reason to interfere in the order of the learned CIT(A) and the same stands upheld. In the result, the issue is held in favour of the assessee.
Depreciation of UPS restricted to 60% - HELD THAT:- The issue as to whether the UPS is liable to be considered as part of the computer system and therefore entitled for rate of 60% being the rate eligible for computers admittedly is squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the case of Indian Overseas Bank Limited [2014 (2) TMI 930 - ITAT CHENNAI] AND Case of Datacraft India Limited, Mumbai [2010 (7) TMI 642 - ITAT, MUMBAI] - UPS forms part of the computer system and therefore was entitled for depreciation at 60% being the rate of depreciation for computers.
Deduction u/s.80IA - adjustment of the rate in respect of the electricity consumed under the captive consumption - HELD THAT:- As deduction u/s.80IA is the deduction from the total income of the assessee the profits and gains of an eligible undertakings.
The Hon’ble Gujarat High Court in GUJARAT ALKALIES AND CHEMICALSLTD [2016 (10) TMI 1111 - GUJARAT HIGH COURT] has categorically admitted that the deduction u/s.80IA is permissible for captive consumption and even the rate at which the deduction is to be computed. Consequently, the issue is held in favour of the assessee and against the Revenue.
Disallowance u/s.14A r.w.rule 8D while comuting book profit u/s.115JB - HELD THAT:- CIT-A followed the principles laid down by the Co-ordinate Bench of this Tribunal in the assessee’s own case and restricted the disallowance to 0.5% of the average investment to be considered for disallowance under both the regular provisions and also in computing the book profits u/s.115JB of the Income Tax Act, 1961. As it is noticed that the learned CIT(A) has followed the principles laid down in the case of Assistant Commissioner of Income Tax Vs. Vireet Investment Private Limited [2017 (6) TMI 1124 - ITAT DELHI], we find no error in the order of the learned CIT(A) which calls for any interference. In the result, the issue is held in favour of the assessee and against the Revenue.
Disallowance u/s.37 as business expenditure for the payment made to National Council for Cement & Building Materials - As submitted assessee had to contribute to the National Council for Cement and Building Materials [NCCBM] which was a Government of India organization - HELD THAT:- As it is noticed the payments have been made by the assessee to NCCBM which is an Apex body functioning under the Government of India and doing significant study and research in cement related field, obviously, the results from the said study would be in the interest of the assessee’s business.
This being so, in view of the decision of the Hon’ble Supreme Court in the case of Venkata Satyanarayana Rice Mill Contractors [1996 (10) TMI 2 - SUPREME COURT] as also complying the principles laid down in the case of Chemicals and Plastics India Limited [2007 (2) TMI 194 - MADRAS HIGH COURT] we are of the view that the expenditure is a business expenditure and allowable u/s.37 of the Income Tax Act, 1961.
This being so and also on account of the fact that the Revenue has not been able to dislodge the findings as arrived by the learned CIT(A) on this issue, we find no reason to interfere in the order of the CIT(A) on this issue. Consequently, the said issue is held in favour of the assessee
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2019 (12) TMI 1561
Deemed dividend addition u/s 2(22)(e) - loan received by assessee - HELD THAT:- It is an admitted fact that M/s Punjab Metallic Pvt. Ltd. is not a share holder of the assessee company from whom the loan was received by the assessee. Therefore the amount of loan cannot be treated as a deemed dividend under section 2(22)(e) of the Act, in the hands of the assessee company as per the ratio laid down by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Sharman Woolen Mills Ltd.[2011 (9) TMI 752 - PUNJAB AND HARYANA HIGH COURT] - Thus impugned addition made by the A.O. and sustained by the Ld. CIT(A) is deleted. - Decided in favour of assessee.
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2019 (12) TMI 1560
Money Laundering - public auction - the allegations are to the effect that the lands, which would fetch higher value in the public auction, were purchased by the petitioners in connivance with the other accused resulting in a huge loss - burden to prove.
HELD THAT:- Issue notice.
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2019 (12) TMI 1559
Rape - the child was aborted - 3rd respondent defacto complainant did not appear for taking samples required for the DNA test, despite notice given to her and direction was issued through investigating officer by court below concerned - delay in initiation of criminal proceedings - HELD THAT:- The prosecution has not even given any reasonable explanation for the long delay of more than 3 months in the initiation of the criminal proceedings - It is by now too well settled by a series of the rulings of the Apex Court in various decisions as in THULIA KALI VERSUS STATE OF TN. [1972 (2) TMI 93 - SUPREME COURT] that delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on its veracity.
It is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc.
The act of the 3rd respondent in having terminated the solid scientific evidence to ascertain the paternity issue is to be seriously viewed. If, as a matter of fact, it was found that the petitioner was not in any manner responsible for the paternity of the foetus in the womb of the 3rd respondent, then he could have easily disproved that the contention of the 3rd respondent that it was the petitioner who was responsible for her pregnancy and in the facts of this case, it would have led to the demolition of the very substratum and foundation of the prosecution story. By the conduct of the 3rd respondent in not having co-operated with the investigating officer and the court below in the conduct of the DNA testing, in her adamant action in refusing to give any sample for DNA testing and the ultimate act of getting the foetus aborted have to be viewed very seriously. This Court has no hesitation to hold that in the light of the facts and circumstances of the case a serious and adverse inference has to be drawn on the abovesaid crucial conduct of the 2nd respondent. In the nature of the facts and circumstances alleged in the instant prosecution story, this Court has no hesitation to hold that, in view of the abovesaid conduct of the 3rd respondent it has to be held that she has done the abovesaid act of aborting the child in order to defeat the scientific DNA testing process and that an adverse inference is to be drawn that if she has done so, such a testing process would have revealed that it was not the petitioner who was responsible for her pregnancy.
Thus, it is only to be held that, as the very substratum of the prosecution case has been shattered, the continuance of the impugned criminal proceedings is a sheer abuse of the process of the court. In this context it is only to be incidentally noted that even the 3rd respondent is no longer interested to continue the impugned criminal proceedings. This Court is inclined to quash the impugned criminal proceedings not merely on the ground of settlement as is referred to in the aforesaid affidavit dated 2.3.2018 filed by the 3rd respondent, but in the light of the aforesaid independent grounds - it is ordered that the impugned Anx. A-1 FIR in Crime No. 487/2017 of Aranmula Police Station, registered as against the petitioner accused and all further proceedings emanating therefrom as against the petitioner accused will stand quashed.
The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information - application disposed off.
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2019 (12) TMI 1558
Resolution professional seeking for exclusion of 462 days from the Corporate Insolvency Resolution Process period - HELD THAT:- In the facts and in order to avoid liquidation of the Corporate Debtor and also to explore the possibility of resolution the Corporate Insolvency Resolution Process; further time of 150 days is extended from 16.11.2019 for completion of Insolvency Resolution Process as an exceptional case.
The Resolution Professional and the members of Committee of Creditors are directed to expedite the possibility of achieving resolution of the stressed assets of the corporate debtor within the extended period.
Application disposed off.
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2019 (12) TMI 1557
TP Adjustment - Compabale selection - HELD THAT:- Genesys International Corpn.Ltd., Infosys Ltd., Larsen and Toubro Infotech Ltd., and Persistent Systems Ltd. excluded from the final list of comparable companies for the purpose of arriving at the arithmetic mean of comparable companies for the purpose of comparison with the profit margins.
Company ICRA Techno Analytics Ltd. - The said company was excluded by the DRP on the ground of functional comparability. Besides the above, the related party transaction in the case of the aforesaid company was more than 25% as is evident from page 1129 & 1130 of Assessee’s paper book containing the financial statement of this company from capitaline database, which details are extracted at page 863 of Assessee’s paper book which is objections filed by the Assessee before the DRP. In the circumstances, this company has to be excluded from the list of comparable companies.
Request of the Assessee to compute the PLI of the Assessee by considering provision for service tax written back as part of the operating profit of the Assessee - HELD THAT:- As in the decision rendered in the case of Sony India (P) Ltd. Vs. DCIT [2008 (9) TMI 420 - ITAT DELHI-H] this aspect has been considered and it was held that provisions written back in the P&L a/c should be regarded as forming part of the operating profit of the taxpayer. Thus we hold that provision written back should be regarded as part of the revenue of the Assessee while determining PLI.
TPO is directed to compute the ALP of the international transaction of rendering of SWD services in the light of the directions contained in this order, after affording the Assessee opportunity of being heard. No other grounds relating to Transfer Pricing adjustment, were pressed for adjudication.
Grant of appropriate MAT credit - HELD THAT:- The issue has been dealt with by the DRP by directing the AO to allow MAT credit, if available, according to the provisions of Sec.115JAA of the Act. We are of the view that the said directions are proper and we direct the AO to allow MAT credit as per the directions of the DRP.
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2019 (12) TMI 1556
Maintainability of appeal - rejection of appeal of the petitioner even without considering the request as well as the prayer made by the petitioner in his appeal for retesting of the third sample of fertilizer Mono Zinc-33% in some notified laboratory - principles of natural justice - HELD THAT:- The learned State Counsel could not dispute the fact that it was incumbent upon the appellate authority to have considered the submissions as well as the request of the petitioner before passing the order. The learned Standing Counsel also could not dispute the fact that the appellate order does not contain any reason and is completely bereft of any reasons.
This Court is of the view that there will be no gainful purpose in keeping the above petition pending; inasmuch as the order impugned which is bereft of any reason, cannot be sustained - the matter is remitted to the appellate authority for deciding the appeal afresh in light of the law as well as after considering the prayer of the petitioner in respect of the retesting of the third sample is concerned - Petition allowed by way of remand.
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2019 (12) TMI 1555
Income accrued in India - Income taxable in India - subscription charges received - As per AO subscription charges received under Chemical Abstract Services (CAS) division and publications (PUBS) division would be chargeable to tax in India under India US DTAA being received for use of copyright of artistic, literary or scientific work and /or for use of information concerning industrial, commercial or scientific experience and/ or for use of industrial, commercial or scientific equipment - HELD THAT:- We notice that in the assessment year 2014-15, the assessee filed its return of income declaring nil income on the plea that it was a tax resident of USA and entitled to be taxed in accordance with the provisions of India USA Double Taxation Avoidance Agreement (DTAA) to the extent they are more beneficial. The
AO however, taxed the income earned by the assessee from Indian customers with respect to the subscription fees for Chemical Abstracts Services (CAS) division and (PUBS) Division as royalty in terms of section 9(1) (vi) of the Act as well as Article 12(3) of the India USA DTAA. The contention of the assessee was that these incomes constitute business profits which are not taxable in the absence of any permanent establishment (PE) in India and since the services were being provided from outside India. The coordinate Bench decided both the issues in favour of the assessee. The coordinate Bench has decided the identical issues in favour of the assessee in assessee’s appeal 2019 (4) TMI 1818 - ITAT MUMBAI] - Decided in favour of assessee.
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2019 (12) TMI 1554
Maintainability of petition - Illegal mining - prosecution and cognizance of the offence or not - power to arrest without warrant in case of cognizable offences - HELD THAT:- The order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate Under Section 379 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act. It is clarified that prosecution and cognizance Under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. Further, the observations in deciding and answering the legal issue should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law.
The prosecution and cognizance of the offence Under Section 379 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act is upheld - appeal allowed in part.
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2019 (12) TMI 1553
Termination of contract - Corporate Debtor not served with the notice - Seeking to hand over the possession of the property to the owners of the premises and furnishes a compliance report of the same - liability of the corporate debtor is with regard to post CIRP and or from CIRP period? - whether the termination of contract dated 01.12.2016 is as per law or not? - HELD THAT:- The counsel representing the respondent submits that there is arbitration clause, and even before the initiation of the CIRP period they were not happy with the services provided by the corporate debtor and the same was conveyed to the corporate debtor. The corporate debtor was aware about consequences about the termination of the contract.
Further whether the termination is good or bad in law, is a matter of inquiry, which requires examination of the fact and circumstances. In this scenario, the termination of the contract even without serving a notice to the corporate debtor is not correct.
The termination notice issued by the respondent is stayed - Until then the respondent shall adhere to the terms of contract without fail - application disposed off.
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2019 (12) TMI 1552
Revision u/s 263 by CIT - Profit on Sale of Ancestral Property as taxable under Capital gain - assessee has sold the ancestral property - deemed full value consideration u/s 50C of the Act cannot be applied in the case of the assessee where the sale consideration shown in the sale deed and declared by the assessee is equivalent to the stamp duty valuation - HELD THAT:- The fair market value of the asset shall be taken as the valuation adopted by the stamp duty authority as provided u/s 50C of the Act being full value consideration and therefore, for the purpose of computing the capital gains the said amount would be deemed to be full value consideration which is the actual sale consideration - There will be no change in the capital gains computed and declared by the assessee even after applying the provisions of section 45(2) of the Act. Resultantly, the business income, if any, from the said transfer under the provisions of Section 45(2) of the Act would be Nil being the cost of acquisition of stock in trade and the sale consideration of the said property is the same.
Even after invoking the provisions of Section 45(2) of the Act, there would be no change in the tax liability of the assessee and hence the order passed by the AO cannot be said prejudicial to the interest of the Revenue. It is undisputed proposition of law that for exercising the power u/s 263 of the Act, the Commissioner has to satisfy itself that the order passed by the AO is erroneous as well as prejudicial to the interest of the Revenue. Without satisfaction of the twin conditions that the order passed by the AO is erroneous as well as prejudicial to the interest of the Revenue, the provisions of Section 263 cant be invoked.
Therefore, in the case in hand, when there will be no Revenue loss even if provisions of section 45(2) is applied then in such a situation the Commissioner is not allowed to exercise its power u/s 263 of the Act merely because the AO has accepted the capital gains declared by the assessee. Hence, in the facts and circumstances of the case, the impugned ex-parte order passed by the ld.PR. CIT without proper opportunity of hearing to the assessee and without establishing the order of the AO is prejudicial to the interest of the Revenue is not sustainable in law and consequently the same is quashed and set aside.- Decided in favour of assessee.
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2019 (12) TMI 1551
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Financial Creditors or not - nature of debt - Financial Debt or Operational Debt - debt due and payable and a default had occurred or not - maintainability of proceedings against a stuck off company - notice of recall / demand was given, but no reply was given by the Corporate Debtor - meeting out of obligations of proposal of name of IRP - HELD THAT:- The Financial Creditor is allowed to propose the name of a qualified personnel to act as such. This plea of the Corporate Debtor stands rejected.
Different dates mentioned at various places - HELD THAT:- These are of technical nature and do not impact the maintainability of the petition filed under Section 7 of the IBC, 2016.
Non submission of Board Resolution under Section 186 of the Companies Act, 2013 - HELD THAT:- This plea is also devoid of merit in view of the provisions of Sections 238 of the IBC, 2013 and there being no such requirement under the provisions of IBC, 2016.
Nature of debt - whether it is a financial debt or operational debt? - HELD THAT:- The Corporate Debtor is trying to read only the words “Advances”, hence, there are no substance in her contention that it was a case of advance and not of loan especially when she has not brought any material on record to support her contention that it was a case of advance for purchase of goods. Similarly at other places the word loan conjunction with advance has been used. We are further of the view that absence of PDC or any written agreement does not alter the character of the transaction and other facts and material can establish the true nature of transaction.
Maintainability of proceedings against a stuck off company - HELD THAT:- The Hon’ble NCLAT has held that proceedings against struck off company under Section 7 IBC, 2016 were valid - CIRP can be initiated against s struck off company.
The Financial Creditor in the supplementary affidavit has proposed the name of the IRP who has given his consent and it has been claimed that no disciplinary proceedings are pending against him, his name is approved - the IRP / RP to file an application under Section 252(3) of the Companies Act, 2013 and serve the copy of the same to Registrar of Companies, West Bengal so that name of the struck off company can formally be restored by an appropriate order of the Tribunal.
This Petition is otherwise complete and defect free - petition admitted.
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