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Showing 161 to 180 of 22820 Records
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2019 (12) TMI 1522 - MADRAS HIGH COURT
Order passed by CIT u/s 264 - rejecting the prayer of the petitioner, on the ground, that the petitioner has not filed the copy of the Auditor Statement under Section 80 JJAA - HELD THAT:- As petitioner submitted that the issue can be decided by the respondents in the light of the decision of the Madras High Court in The Commissioner of Income Tax vs. AKS Alloys P.Ltd.[2011 (12) TMI 39 - MADRAS HIGH COURT] and in The Commissioner of Income Tax vs. Punjab Financial Corporation [2001 (12) TMI 50 - PUNJAB AND HARYANA HIGH COURT] and the decision of GM Knitting Industries P. Ltd [2015 (11) TMI 397 - SC ORDER]. Since the issue was covered by the aforesaid decisions, the impugned order is set aside. This case is remitted back to the Commissioner of Income Tax to pass appropriate orders after considering the aforesaid decisions.
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2019 (12) TMI 1521 - MADRAS HIGH COURT
Revision u/s 264 - Deduction u/s 80JJAA denied - rejecting the prayer of the petitioner, on the ground, that the petitioner has not filed the copy of the Auditor Statement under Section 80 JJAA - HELD THAT:- Issue can be decided in the light of the decision of AKS Alloys P.Ltd. [2011 (12) TMI 39 - MADRAS HIGH COURT] the decision of the Full Bench of High Court of Punjab and Haryana in The Commissioner of Income Tax vs. Punjab Financial Corporation [2001 (12) TMI 50 - PUNJAB AND HARYANA HIGH COURT] and the decision of GM Knitting Industries P. Ltd [2015 (11) TMI 397 - SC ORDER] Since the issue was covered by the aforesaid decisions, the impugned order is set aside. This case is remitted back to the Commissioner of Income Tax to pass appropriate orders after considering the aforesaid decisions.
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2019 (12) TMI 1520 - SUPREME COURT
Rejection of challenge of direction to stop local purchase from the appellant - impugned letter/notice was issued by the Principal Secretary to the Government of U.P. stating that a first information report (FIR) had been lodged against Daffodills alleging that it had committed offences, and that the Central Bureau of Investigation (CBI) was inquiring into the issue - HELD THAT:- In the present case, even if one assumes that Surender Chaudhary, the accused in the pending criminal case was involved and had sought to indulge in objectionable activities, that ipso facto could not have resulted in unilateral action of the kind which the State resorted to- against Daffodils, which was never granted any opportunity of hearing or a chance to represent against the impugned order. If there is one constant lodestar that lights the judicial horizon in this country, it is this: that no one can be inflicted with an adverse order, without being afforded a minimum opportunity of hearing, and prior intimation of such a move. This principle is too well entrenched in the legal ethos of this country to be ignored, as the state did, in this case.
The High Court, in the opinion of this court, fell into error in holding that in matters of award of public contracts, the scope of inquiry in judicial review is limited. Granted, such jurisdiction is extremely circumscribed; no doubt the court had refused to grant relief to Daffodils against its plea of wrongful rejection of its tender.
The appeal is allowed.
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2019 (12) TMI 1519 - SUPREME COURT
Condonation of delay in filing appeal - HELD THAT:- Delay in refiling the appeal is condoned.
Registry to proceed further.
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2019 (12) TMI 1518 - ITAT MUMBAI
Deprecation on purchase of goodwill or any other business or commercial rights in view of the amendment of Section 32(1)(ii) - Whether rights acquired for acquisition of Customer Contracts falls within the expression “any other business or commercial rights of similar nature” as defined in Explanation 3 to Section 32(1)(ii)? - HELD THAT:- In view of the above factual aspects and legal position and the co-ordinate Bench decision in assessee’s own case in . [2018 (8) TMI 2049 - ITAT MUMBAI] for AY 2012-13, we are of the view that the contracts which are part of Slump sale agreement i.e. business purchase agreement form part of intangible assets in term of explanation 32(1)(ii) of the Act. Hence, we find no infirmity in the order of CIT(A) allowing the claim of depreciation of the assessee, we confirm the order of CIT(A).
Addition made while computing book profit u/s 115JB - HELD THAT:- Assessee has made claim of exclusion of amortization of intangible assets, including goodwill, fee paid to consultants and expenses incurred for acquisition of business of DC Gupta construction Pvt. Ltd while computing book profit under section 115JB of the Act. We noted that the AO made addition in the book profit of the assessee but the facts are that the provisions of Sec. 115JB of the Act requires that net profit should be prepared in accordance with Part II and III of Schedule VI to Companies Act.
In the instant case, because of specific accounting treatment followed by the assessee pursuant to High Court order, the financial statements are not showing true and fair view and are contrary to Accounting Standards, provisions of Companies Act and Schedule VI thereto. In the instant case, what has been done pursuant to High Court scheme is not affect the accounting to be made as per companies Act while arriving at the true profit as per Part II of Schedule VI and hence, the assessee is entitled to make necessary adjustment in order to incorporate the impact of the said observation to the Profit as shown in the profit & Loss account to arrive at correct Book Profit under section 115JB of the Act. Hence, the CIT(A) has rightly deleted the addition made by the AO. This ground of Revenue’s appeal is dismissed.
Reimbursement of expenses - AO disallowed the claim of reimbursement expenses by stating that the assessee has not filed the details including bills and vouchers by observing - HELD THAT:- We noted that the assessee has filed details of reimbursement of expenses and this issue is covered by the decision in the case of Vazirani Lani Developers Pvt. Ltd. [2009 (2) TMI 904 - BOMBAY HIGH COURT]. Hence, we find no infirmity in the order of CIT(A) and the same is confirmed. This issue of Revenue’s appeal is dismissed.
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2019 (12) TMI 1517 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Financial Creditors or Operational Creditors - pre-existing dispute or not - Appellant submits that already a Summary Suit has been filed by Ms. Rupa Gaur therefore no application under Section 9 of I&B Code is maintainable their being a pre-existing dispute - HELD THAT:- In view of the fact that the ‘Committee of Creditors’ have not been constituted, which is also accepted by Mr. Atul Tandon, Interim Resolution Professional and also has reached settlement with both the creditors, as discussed above and it is a going concern, we exercise power conferred to us under Rule 11 of NCLAT Rule, 2016 and set aside the impugned order dated 4th July, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench and dispose of the application under Section 9 filed by ‘M/s Famous Innovations Digital Creative Pvt. Ltd.’ (1st Respondent) as withdrawn.
The Corporate Debtor - ‘M/s Famous Innovations Digital Creative Pvt. Ltd.’ is released from the rigour of Corporate Insolvency Resolution Process. The Appellant is directed to pay the rest of the amount to the Interim Resolution Professional within three weeks - Appeal allowed.
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2019 (12) TMI 1516 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Fixation of professional fee and cost of 'Resolution Professional' - HELD THAT:- The Adjudicating Authority taking into consideration the fact that main claim of the 'Operational Creditor' against the 'Corporate Debtor' was ₹ 20,50,136/- and parties settled the matter, fixed professional fee and cost of 'Resolution Professional' at ₹ 2,50,000/- and allowed a sum of Rs. one lakh to be paid in favour of the Appellant.
The Appellant is unhappy with such amount but we are not inclined to interfere with such amount - Appeal dismissed.
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2019 (12) TMI 1515 - SUPREME COURT
Condonation of delay in filing appeal - exclusion of time as per Section 37 of the Arbitration and Conciliation Act, 1996 - delay of 189 days from the 90 days that were given under Article 116 of the Limitation Act - HELD THAT:- The matter is no longer res integra. In UNION OF INDIA VERSUS M/S VARINDERA CONST. LTD [2018 (9) TMI 2037 - SUPREME COURT] it was held that any delay beyond 120 days in the filing of an appeal under Section 37 from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act, 1996 should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings being decided with utmost despatch.
What is done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul and Others [1940 (12) TMI 26 - FEDERAL COURT], as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 days is not liable, therefore, to be condoned.
Appeal dismissed.
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2019 (12) TMI 1514 - PUNJAB AND HARYANA HIGH COURT
Proclamation for person absconding - petitioner was not afforded the requisite period of 30 days for causing his appearance after publication of proclamation notice - HELD THAT:- In the present case while publication was effected on 31.5.2018, the accused was required to appear on 1.6.2018. This Court in ASHOK KUMAR VERSUS STATE OF HARYANA AND ORS. [2013 (8) TMI 1146 - PUNJAB AND HARYANA HIGH COURT] while interpreting the provisions of Section 82(1) has held that a clear period of 30 days is required to be furnished to the accused and that even in case, the Court subsequently adjourned the matter, such adjournment beyond 30 days cannot be treated as compliance of provisions of Section 82(1) Cr.P.C.
In view of the factual position, wherein a period of only 1 day was afforded for causing appearance after the proclamation was effected and in light of ratio of Ashok Kumar's case, the petition is accepted and the impugned order dated 4.7.2018 passed by learned Sub Divisional Judicial Magistrate, Kalka (Annexure P-2) is hereby set aside - Petition allowed.
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2019 (12) TMI 1513 - SUPREME COURT
Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Ordinance - suit filed by appellants were within time limitation or not - it is contended that Act, 1993 is retroactive and further any outstanding amount at the time of commencement of the Act ought to attract interest under The interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Act, 1993.
HELD THAT:- Section 3(1) of the Limitation Act, 1963 makes it clear that in event, a suit is instituted after the prescribed period, it shall be dismissed although limitation has not been set up as a defence. The Court by mandate of law, is obliged to dismiss the suit, which is filed beyond limitation even though no pleading or arguments are raised to that effect. The provisions of Sections 4 to 20 are exceptions when suit beyond the period of limitation as prescribed in the Schedule shall not be dismissed as required by Section 3.
Order VII Rule 6 uses the words "the plaint shall show the ground upon which exemption from such law is claimed". The exemption provided Under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19, with which we are concerned, provide for a fresh period of limitation, which is founded on certain facts, i.e., (i) whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
A perusal of the plaint indicates that there is no pleading as to exception of limitation by running any fresh period of limitation as per Section 19. In paragraph 10, the details of delivery challans have been given, last challan being dated 04.10.1993 has been mentioned by which supply was made. In paragraph 12, details of payments received have also been mentioned, in which last being made on 05.03.1994 has been mentioned, but for the last payment made on 05.03.1994, there was no pleading of an acknowledgment on the part of the Respondents, which could result in start of fresh period of limitation - There being no specific pleading by the Plaintiffs claiming any start of fresh period of limitation, there was no occasion for Defendants to raise any reply in reference to Section 19.
The scope of review is limited and under the guise of review, Petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. The scope of review has been reiterated by this Court from time to time - review petition dismissed.
Rectification of mistake - error apparent on the face of record or not - HELD THAT:- Review judgment does not grant interest under Act, 1993 since the High Court in the review judgment did not interfere with the earlier finding that Petitioner is not entitled for benefit under Act, 1993. The review on the ground on which liberty was sought was in essence not accepted by the High Court in its review judgment - there are no ground to review the petition.
Review petition dismissed.
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2019 (12) TMI 1512 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Non-speaking order - unsecured financial creditor or not - HELD THAT:- The ‘Resolution Professional’ and the ‘Committee of Creditors’ noticed that the Appellant’s claim of ‘Secured Creditor’ rests on movable properties and not on any immoveable properties as there is no security interest on immovable properties and pledge in respect of immoveable properties cannot be claimed. The ‘Resolution Professional’ and the ‘Committee of Creditors’ held that the Appellant - ‘Financial Creditor’ is not a ‘secured creditor’.
Whether the Appellant is a ‘secured creditor’ or not, is a question of fact and it can be decided by the ‘Resolution Professional’ and any decision further can be taken by the ‘Committee of Creditors’. The Adjudicating Authority (National Company Law Tribunal) or ‘National Company Law Appellate Tribunal’ cannot sit over the decision of the ‘Resolution Professional’ or ‘Committee of Creditors in this regard.
Appeal dismissed.
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2019 (12) TMI 1511 - ITAT MUMBAI
Deduction U/s 10A/10B - proportionate allocation of the head office expenses made by the A.O. while computing the profits of the units eligible for deduction U/s 10A/10B - HELD THAT:- As decided in own case [2017 (10) TMI 233 - ITAT MUMBAI] assessee is having four units based at various locations which were controlled through its headquarter. The expenditure incurred by head office like travel and conveyance, communication expenses, legal and professional charges and rates and taxes definitely is having relevance to its total business. Therefore, we are of the view that the AO was right in allocating head office expenses to the units eligible for claiming exemption u/s 10A / 10B of the Act. We further observe that there is merit in the argument of the assessee that only net expenses of head office should be allocated to the units claiming exemption u/s 10A / 10B, because the assessee is generating other income like interest on fixed deposit and rent which may have some bearing on the functioning of its units claiming exemption u/s 10A / 10B. Therefore, we are of the view that the issue needs to be re-examined by the AO in the light of the submissions of the assessee. Hence, we set aside the issue to the file of AO and direct him to consider the issue afresh after affording opportunity of hearing to the assessee.
TPA - Comparable selection - HELD THAT:- Respectfully following the order of the Tribunal in assessee’s own case for the A.Y. 2010-11 [2019 (10) TMI 1241 - ITAT MUMBAI], we do not find any infirmity in the order of the ld. CIT(A) for directing exclusion of companies namely M/s Infosys Ltd. and M/s Larsen & Turbo Infotech Limited from the final set of comparables.
M/s Zylog Systems Limited, the ld CIT(A) has directed for exclusion after recording a finding to the effect that it is a giant in its area of operation and assumes greater risks translating into higher profitability. Thus, this giant sized company with advantages such as brand, intangibles etc. cannot be compared to a company such as the assessee company which is a captive unit of his AE assuming only limited risks. After recording a similar finding, the ld. CIT(A) also excluded Infosys Lt., which is already covered by the order of the Tribunal. The ld DR could not place on record any material so as to persuade us to deviate from the finding of the ld. CIT(A).
Functional comparability M/s Thirdware Solutions Ltd. and M/s Kals Information Systems Ltd. with the software development service segment of the assessee - We had carefully perused the order of the Tribunal [2019 (10) TMI 1241 - ITAT MUMBAI] and found that exactly on the similar facts and circumstances, the Tribunal have confirmed the action of the ld. CIT(A) for exclusion of these companies from the set off final comparables. The ld DR has fairly conceded the fact that the issue is covered by the order of the Tribunal - we do not find any infirmity in the order of the ld. CIT(A) for excluding these comparables.
Working capital adjustment while determining the arm’s length price of the international transaction in the nature of provision of software development services - HELD THAT:- As the facts and circumstances during the year under consideration are pari materia, accordingly, we direct the A.O. to grant working capital adjustment while determining the ALP for international transaction in terms of direction given by the Tribunal in [2019 (10) TMI 1241 - ITAT MUMBAI]
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2019 (12) TMI 1510 - PUNJAB AND HARYANA HIGH COURT
Permission for withdrawal of application - applicants-petitioners submits that the matter stands preponed from 21.12.2019 and is fixed for today vide order dated 17.12.2019 therefore, prays for withdrawal the present application - HELD THAT:- The application dismissed as withdrawn.
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2019 (12) TMI 1509 - SUPREME COURT
Right of the employer to exercise disciplinary control over an employee - Whether in a revision Under Section 397 of the Code of Criminal Procedure, arising out of conviction, the High Court could have, even while affirming the conviction, taken away the right of the employer to exercise disciplinary control over an employee, on the basis of the conviction by the criminal court?
HELD THAT:- The case on hand is one where the Respondent secured an order from the High Court, behind the back of his employer that his conviction will not have an impact upon the service career of the Respondent. The High Court did not have the power to pass such an order. If at all, the High Court could have invoked, after convicting the Respondent, the provisions of the Probation of Offenders Act, 1958, so that the Respondent could take shelter, if eligible, Under Section 12 of the said Act. In this case, the High Court ventured to do something which it was not empowered to do. Therefore, the Respondent cannot take umbrage Under Section 362 of Code of Criminal Procedure The second reason why the argument of the learned Senior Counsel for the Respondent is fallacious is that the Respondent himself was a beneficiary of what he is now accusing the Appellant of.
It is true that the Respondent entered service way back in the year 1985 and it may certainly cause serious prejudice, if the conviction Under Section 498-A Indian Penal Code at the instance of his daughter-in-law also shakes the very foundation of his employment. But the Respondent can certainly seek protection against such action only before an appropriate forum, if and when the employer chooses to initiate any action. It is not necessary that the employer in all such cases will invariably initiate disciplinary proceeding. The employer may certainly take note of the long service rendered by the Respondent, apart from the fact that the conviction had nothing to do with the discharge of his duties officially - But the High Court, in a revision arising out of conviction, could not have sealed the right of the employer to take action on the basis of conduct which led to the conviction of an employee, within the parameters of the service Rules.
Appeal allowed.
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2019 (12) TMI 1508 - ITAT MUMBAI
Depreciation on crawler cranes/trailers - Whether the crawler cranes/trailers are in the nature of Plant & Machinery and thus eligible for depreciation @15% and not eligible for higher depreciation of 30%? - HELD THAT:- As relying on own case [2017 (12) TMI 644 - ITAT MUMBAI] we do not find any merit in action of lower authorities for declining higher claim of depreciation at 30% on Crawler Cranes and Dozers - Decided against revenue.
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2019 (12) TMI 1507 - ITAT MUMBAI
Depreciation on crawler cranes/trailers - Whether the crawler cranes/trailers are in the nature of Plant & Machinery and thus eligible for depreciation @15% and not eligible for higher depreciation of 30%? - HELD THAT:- As decided in own case[2017 (12) TMI 644 - ITAT MUMBAI] in view of the above discussion and considering judicial pronouncements as quoted above we do not find any merit in action of lower authorities for declining higher claim of depreciation at 30% on Crawler Cranes and Dozers. Appeal of the Revenue is dismissed.
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2019 (12) TMI 1506 - ATPMLA
Money Laundering - attachment of property which is used by the family members of appellant - proceeds of crime - HELD THAT:- There is nothing on record to show that the property are not used by the family members of the appellant. Liberty is granted to the respondent to verify the actual position of the property and filed the status report by the next date of hearing.
Since, as stated by ld. counsel for the appellant that the property in question is in occupation of the family members of the appellant and Judgment passed by Hon’ble High Court of Madras, there is a prima facie case in favour of the appellant at this stage, if the appellant and his family members are evicted from the said property as it will cause irreparable injury to the appellant and his family members, so balance of convenience lies in passing a status quo order till the next date of hearing at this stage.
Both the parties are directed to maintain the “status quo‟ with respect to the property in question till the next date of hearing subject to conditions imposed - Attachment shall continue till further order - ‘Status quo’ be maintained at this stage with respect to those properties till next date of hearing.
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2019 (12) TMI 1505 - CALCUTTA HIGH COURT
Action against the petitioner with regard to the exports that have been undertaken by the petitioner, by three respondent authorities - HELD THAT:- Different authorities can proceed with respect to the same transaction if the liabilities arising from one transaction are in respect of different legislations under which the authorities operate. There is no bar and/or impediment in doing so - the prayer of the petitioner with regard to direction upon only one authority to proceed against the petitioner is prima facie not valid.
The respondents should be allowed to bring on record the factual matrix with regard to the summons having been issued upon the petitioner and the steps the authorities have taken - The matter to appear in the list after exchange of affidavits.
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2019 (12) TMI 1504 - BOMBAY HIGH COURT
Stay petition - ad-interim protection was granted to the Petitioner - HELD THAT:- Ad-interim protection was granted to the Petitioner - By order dated 1 October 2019, it was directed that if the order on the application for stay filed by the Petitioner is adverse to the Petitioner, then no coercive proceedings would be adopted by the Revenue for a period of two weeks. It is upon the rejection of the application for stay, the present petition is filed.
Considering the aforesaid order dated 1 October 2019 and that as we are placing the matter for final disposal on a short date i.e. on 3 January 2020 immediately upon reopening of the Court after Christmas Vacation, we are inclined to continue the protection granted by the order dated 1 October 2019.
Respondents requests that instead of 3 January the matter may be adjourned to 10 January 2020. Accordingly, the petition to stand over to 10 January 2020. The protection granted by the Court by order dated 1 October 2019 in Writ Petition to continue till the next date.
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2019 (12) TMI 1503 - ITAT CHENNAI
Assessment u/s 153A - HELD THAT:- Following the principles laid down in the case MEETA GUTGUTIA [2018 (7) TMI 569 - SC ORDER] as no incriminating material has been found in the course of search in the case of the assessee for the assessment years under appeal, the addition as made by the AO is unsustainable. Consequently, the findings of the Ld.CIT(A) on this issue stands confirmed. Appeals filed by the Revenue are dismissed.
Intimation u/s.143(1) - only restriction to the raising of the legal ground is that no new or fresh facts should be required to be brought into the proceedings or determined through the proceedings - HELD THAT:- In the present case, all the facts are emanating clearly from the assessment order and no new facts have been produced by the assessee nor are being called for determination in the present proceedings. Consequently, the legal ground is liable to be admitted and we do so.
A perusal of the provision of Section 142(1) clearly shows that the AO can issue a notice u/s.142(1) calling upon the assessee to file his return of income only when the assessee has not filed his original return of income under the provision of Section 139(1). In the present case, the assessee has filed his original return on 01.10.2015 which is a return u/s.139(1) and the said return has also been processed u/s.143(1) on 02.06.2016. The notice u/s.142(1) issued on 29.06.2016 asking the assessee to file the return of income consequently is an invalid notice and is liable to be quashed and we do so.
The assessee having filed a valid return u/s.139(1) on 01.10.2015, the time limit calling for details u/s.143(2) for the purpose of assessment expired on 30.09.2016. The notice u/s.143(2) has been issued only on 09.11.2016 which is far beyond the time stipulated under the statute. Consequently, the said notice u/s.143(2) being barred by limitation is liable to be quashed and we do so. As the notice u/s.143(2) has been quashed, the assessment becomes unsustainable and the same stands quashed.
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