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2019 (12) TMI 1449
Classification of goods - rate of GST - Sandal Wood purchased by them in the auction conducted at the Forest Depot, units being situated in the Special Economic Zone (SEZ) in the State of Tamil Nadu - inter-state supply or not - Zero-rate supply or not - HELD THAT:- In the case at hand, the Sandal Wood stocked in the Depot of the Forest Department at Marayoor was put to auction, by specifying the quantity thereof. On a perusal of the tender notification as well as the conditions incorporated therein, it is revealed that, the successful bidder should take delivery of the goods from the said Depot, on remittance of the requisite amount. Therefore the supply of goods in between the auctioneer and the successful bidder ends up with delivery of goods at the Depot itself. Hence the supply of goods in the case at hand does not involve any movement of goods. Therefore, going by Section 10(1)(c) of the IGST Act, the supply of goods in the case at hand is a supply which does not involve movement of goods. Therefore the place of supply can only be considered as the location of such goods at the time of delivery effected to the recipient, which is at the Depot at Marayoor, within the State itself. In the case at hand, the location of both the supplier and the place of supply are within one State itself. Therefore the supply of goods in the case is not in two States or in two different Union territories or in a State and in a Union territory, as contemplated under Section 7(1) of the IGST Act. But sub-section (5) of Section 7, especially sub-clause (b) therein, provides that, if the supply of goods is to a SEZ unit, such supply shall be treated to be a supply of goods in the course of inter-State trade or commerce.
Further, going by provisions contained in Section 8 of the IGST Act, which determines what is intra-State supply, which provides that, when the location of the supply and the place of supply of goods are in the same State or same Union territory it shall be treated as intra-State supply. In order to ascertain as to where is the place of supply, the provisions contained in Section 10 can be of assistance. [Clause] (c) of Section 10(1) provides that, where the supply does not involve movement of goods, whether by the supplier or by the recipient, the place of supply shall be the location of such goods at the time of delivery to the recipient. In the case at hand, it cannot be disputed that, pursuant to confirmation of the auction, the goods has to be delivered by the appellants to the respondent on making deposit of the requested amount. In other words, the supply of goods in the case will be concluded by effecting delivery of the goods to the recipient at the Depot in question. Since the location of the goods at the time of delivery by the recipient is the Depot at Marayoor, the place of supply is also within the State. Hence it can safely be concluded that the location of the supplier and the place of supply of goods are within the State of Kerala itself. Therefore the “supply of goods” in the case will come within the purview of the intra-State supply as determined in Section 8(1) of the IGST Act.
Rate of tax applicable - HELD THAT:- Section 16 of the IGST Act clearly provides that, supply of goods to a SEZ Unit is a “zero-rated supply”. Therefore the demand made by appellants 1 and 2 for payment of IGST at the rate of 18% cannot be sustained - The instance of taxation or the taxable event is the supply of goods contemplated under the IGST Act. It is specifically provided that supply of goods made to a SEZ unit is an inter-State supply. Further it is also evident from the provisions that, despite the location of the supplier and the place of supply is within the State itself, it cannot be treated as an intra-State supply, because the supply is made to a SEZ unit. Going by provisions contained in the IGST Act, the inter-State supply in the instant case is a “zero rate supply”. Therefore, there exists no tax liability involved in the supply of goods. That being the position, coupled with the condition incorporated in the tender that the value of the goods need to be paid only with applicable tax, would make it clear that the tenderer is not liable to pay any tax at 18%. Such a rate is not at all applicable with respect to the supply of goods involved.
Under the Goods and Services Tax regime, any transaction of ‘supply of goods’ is governed by the definitions and provisions contained in the CGST Act and in the IGST Act. When it is provided under the statute as to what determines the nature of ‘inter-State supply’ and ‘intra-State supply’, no one can go beyond provisions of the said Acts in order to decide the nature of the supply. From the conclusions arrived, it need to be held clearly that, going by provisions of the IGST Act the supply to a SEZ unit can only be considered as inter-State supply. As long as such supply remains as a ‘zero-rated supply’ the demand for payment of 18% IGST cannot be sustained.
Lastly, yet another contention was raised to the effect that, the proviso to Section 8(1) exempting supply of goods to SEZ unit from the purview of intra-State supply, can be deemed to apply only with respect to a SEZ unit situated within the State itself. For accepting such a contention, something has to be read into the plain and literal meaning of the proviso, which is not at all warranted, because the literal meaning or the intentional meaning would not give rise to any ambiguity or lack of clarity. Further, Section 7(5)(b) would make it clear that despite the location of the supplier and the place of supplier being not within two different States, it should be treated as a supply of goods in the course of inter-State trade, when the supply is made to a SEZ unit. When the rate applicable to such supply is determined as ‘zero-rate supply’, the demand for any higher rate cannot be sustained. It is pertinent to note that, neither under Section 7(5)(b) or under the proviso (i) of Section 8(1); nor under Section 16(1)(b) there is no distinction with respect to the location of the SEZ unit, whether it is within the State or outside the State. Therefore the above argument cannot be countenanced, at any rate.
The conclusions arrived by the Learned Single Judge and the relief granted in the impugned judgment do not suffer from any illegality, error or impropriety - Appeal dismissed.
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2019 (12) TMI 1448
Remission of duty - import of 50,000 bags of Soda Ash - short receipt of quantity or not - applicability of Section 23 of the Customs Act, 1962 - Levy of Penalty u/s 116 of CA - HELD THAT:- In the present case, the custody of the imported goods was with the Tuticorin Port Trust which is constituted under the provisions of the Major Port Trust Act, 1963. Tuticorin Port Trust was required to keep a record of such goods and send a copy thereof to the proper Officer of the customs - There is a categorical finding in O.I.O. No. 4/97, dated 16-4-1997 of the Assistant Commissioner while rejecting the claim for remission of duty of the importer that a proper tally could not be made during the completion of discharge from the vessel as the cargo was dumped due to labour refusing to stack the cargo property into the slings in view of the nature of the cargo. He has further observed that both the Port Trust Certificate and the survey report of M/s. Peirce Leslie, neither show that the entire cargo was not received by the Tuticorin Port Trust. Thus, [there] is no evidence of short landing.
Remission of customs duty was allowed by the Appellate Commissioner to the importer on account of short delivery of the goods and not on account of the short landing of the goods. Therefore, there is no nexus between the alleged short landing and short receipt - In this case, the importers had produced a certificate dated 29-2-1996 of Lloyd’s Agents after filing a refund claim on 26-12-1996.
In this case, no short landing was noticed by the Customs Department when the goods were discharged at the Tuticorin Port Trust. There is no evidence on record to conclude there short landing. On the other hand, the goods were discharged at the Tuticorin Port. However, after they were discharged, the aforesaid goods were delivered to the importer filed a refund claim on 27-4-1996. The short landing was to be ascertained then and there as and when the imported goods were discharged from the vessel and were transferred to the Port Trust - Therefore, unless there was a report of the surveyors or any other report of the custodian of the goods namely the Tuticorin Port Trust certifying that there were short landing, a steamer or its agent cannot be held liable merely because remission of customs duty was allowed to the importers under Section 23 of the Act.
Invocation of section 116 of Customs Act - HELD THAT:- Section 116 of the Act applies only if any goods loaded in a conveyance for importation into India are not unloaded at the place of destination in India or where there is a failure to unload and the goods are not accounted for to the satisfaction of the Assistant Collector of Customs. Only under those circumstances, the person in charge of the conveyance shall be liable to a penalty. Further, invocation of Section 116 of the Customs Act is not dependent on the outcome of the application for remission of customs duty of an importer - If there was indeed short landing, the authorities ought to have initiated proceedings independent irrespective of the application for remission of Customs duty under the provisions of the Customs Act, 1962. Therefore, invocation of Section 116 of the Customs Act, 1962 long after 9 to 10 years of the actual import and clearance of the goods by the importer cannot be countenanced.
The impugned order of the 1st respondent seeking to justify levy of penalty on the petitioner under Section 116 of the Customs Act, 1962 cannot be sustained and is therefore liable to be quashed - Petition allowed - decided in favor of petitioner.
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2019 (12) TMI 1447
Short payment of Customs Duty - Aluminum Scrap and Silicon - HELD THAT:- The issue involved herein stands decided by this Court in M/s. Harkaran Dass Vedpal v. Union of India and Others [2019 (7) TMI 1307 - PUNJAB AND HARYANA HIGH COURT], in favour of the petitioner(s) therein, hence, the petitioner is also entitled to relief in the same terms.
Petition allowed.
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2019 (12) TMI 1446
Validity of assessment u/s 153A - Non taking the approval of the competent authority u/s 153D - HELD THAT:- The supervisory power mandated under s.153D of the Act in case of search assessment could not be bypassed. The co-ordinate bench in D. S. India Jewelmart P Ltd.[2019 (9) TMI 866 - ITAT AGRA] taken note of various judicial decisions and arrived at conclusion that lack of approval under s.153D of the Act could invalidate the assessment order. The non-compliance of Section 153D of the Act is a substantive defect and thus not curable. Such absence of approval has rendered the assessment order passed under s.153A of the Act as bad in law at the threshold.
Action of the CIT(A) is reversed and the main ground of the assessee is allowed.
Levy of interest under s.234A and 234B with reference to assessed income instead of returned income - HELD THAT:- As relying on M/s. Anand Vihar Construction Pvt. Ltd [2018 (11) TMI 1738 - ITAT RANCHI] Interest under s.234A & 234B of the Act is chargeable with reference to returned income only, we are inclined to adjudicate the legal objection raised by way of additional ground in favour of the assessee.
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2019 (12) TMI 1445
Approval of Resolution Plan - alleged that the 'resolution plan' which do not confirm requirements of section 30(2) and discriminates amongst the class of creditors has been approved - HELD THAT:- In 'Committee of Creditors of Essar Steel India Ltd.' [2019 (11) TMI 731 - SUPREME COURT], the Hon'ble Supreme Court held that with regard to distribution method, the National Company Law Tribunal or National Company Law Appellate Tribunal cannot go beyond the commercial wisdom of the 'Committee of Creditors'. This Appellate Tribunal has also held that the commercial wisdom is a subject matter of the 'Financial Creditor (Commercial Creditors), which cannot be decided by the Adjudicating Authority (National Company Law Tribunal) or the Appellate Tribunal (National Company Law Appellate Tribunal).
In the present case, there is nothing on record to suggest that the Appellant is a First Charge holder of the assets of the 'Corporate Debtor'. Further, as per the decision of the Hon'ble Supreme Court in 'Committee of Creditors of Essar Steel India Ltd.' (supra), the equitable treatment is to be accorded to each creditor depending upon the class to which it belongs i.e. 'secured' or 'unsecured', 'financial creditor' or 'operational creditor' - the Appellant has failed to show that any of the provisions of section 30(2) has been violated or there is any material irregularity in the corporate insolvency resolution process period. The question of giving benefit to First Charge holder does not arise both on the question of facts and law. The Appellant cannot derive any benefit from Sections 40 or 48 of the Transfer of the Property Act, 1882.
As the Appellant has failed to make out any ground under sub-section (3) of section 61 of the I&B Code, no relief can be granted - appeal dismissed.
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2019 (12) TMI 1444
Condonation of Delay - delay in filing of appeal about 4378 days - Settlement Commission procedings pending - HELD THAT:- We find that the belief of the assessee for not filing the appeals before the Tribunal was that, they were expecting that their cases will be taken by the Settlement Commission in all assessment years. According to the assessee, they have harboured this belief on the advice of their Counsel, whose opinion is available on the paper book. Moreover, under the same set of facts the Co-ordinate Bench of ITAT has already taken a view and has condoned the delay under the identical circumstances for A.Y. 2003-04 & 2001-02.[2017 (7) TMI 360 - ITAT AHMEDABAD]
Since the Co-ordinate Bench has already taken a view by condoning the delay, therefore in order to maintain judicial consistency and judicial discipline, we also deem it appropriate to condone the delay in filing of appeals, accordingly, we proceed to decide the appeal on merits.
Since the ld.CIT(A) has not adjudicated the issues on merits rather, dismissed the appeals on account of non-maintainability. In the light of above decision of Co-ordinate Bench of ITAT, we deem it appropriate to set-aside orders of the ld.CIT(A) on these appeals and restore all these to the file of the ld.CIT(A) for re-adjudication. Appeal of assessee allowed for statistical purpose.
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2019 (12) TMI 1443
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - HELD THAT:- From perusal of the Demand notice and e-mail correspondence between the parties it is seen that there does not exist any pre-existing dispute regarding quality or standard of equipment supplied between the parties. Further there exists no arbitration or any other proceedings between the parties. Therefore this Adjudicating Authority is of the view that there is no pre-existing dispute between the parties.
With regard to the dispute now raised as to the quantum of debt amount, this Adjudicating Authority is of the view that dispute as to the quantum of amount of debt does not alter the situation so long as there is any default on the part of the Corporate Debtor and the same is for more than ₹ 100,000/-. It is seen from reply filed by Corporate Debtor that according to Corporate Debtor itself total value of contract was of ₹ 7.2 Crores out of which a sum of ₹ 4.25 Crores only has been paid.
Further letter dated 29-12-2016, clearly establishes admission of debt on part of the Corporate Debtor. That there is a default on the part of the Corporate Debtor is also clear from a perusal of the correspondence between the Operational Creditor and Corporate Debtor including the MoU dated 24-10-2013 and the two letters of the Corporate Debtor dated 9-8-2016 & 29-12-2016. Since the letters dated 9-8-2016 and 29-12-2016 establish a clear acknowledgement of debt on the part of the Corporate Debtor, Section 18 of the Limitation Act will be applicable in this case and the instant application is held to have been filed within limitation. Therefore this Adjudicating Authority is inclined to admit the instant petition.
The instant petition is hereby admitted and this Adjudicating Authority order commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed within the timelines provided u/s. 12 of the IBC, 2016, reckoning from the day this order is passed - application admitted - moratorium declared.
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2019 (12) TMI 1442
Invitation of fresh offers by the Resolution Professional within 21 days - It is submitted that on the basis of wrong information furnished to the learned counsel, it was stated before us that five offers were received within time and two offers were received thereafter - HELD THAT:- As a matter of fact, only one offer was received within time. There were three Resolution Plans submitted by the resolution applicants and two Financial Offers received thereafter. The facts are placed on record.
In the circumstances, the order dated 13-11-2019 insofar as "the decision be taken by the CoC as to the offers which were received within the time limit within three weeks from today and be placed before this Court", is recalled - The above portion is recalled as only one offer was received within time - It is directed that fresh offers be invited within 30 days from today after due advertisement in accordance with the procedure prescribed for the purpose.
Application disposed off.
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2019 (12) TMI 1441
Restoration of the name of Company in the Register of Companies maintained by the Registrar of Companies - section 252(3) of the Companies Act, 2013 - HELD THAT:- Section 252(3) of the Companies Act, 2013 enables a Company or any Member or Creditor or workman, who feels aggrieved by an order striking off the Company from the Register of Companies, can file an Application within 20 years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 of the Act. In the case on hand, the name of the Company, Narayan Infrastructure Private Limited, was struck off from the Register of Companies on 21-6-2017. This Appeal was filed on 9-7-2019. Therefore, this Appeal is within time - This is not an Appeal filed by the Company itself for restoration of its name. It is a case where the Shareholders of the Company is asking for restoration of the name of the Company which was struck off in a suo motu action under the provisions of section 248(1)(c) of the Companies Act, 2013, due to failure in filing of its statutory returns for a continuous period of more than two years of the company viz Narayan Infrastructure Private Limited. Therefore, if there are grounds to restore the Company, there is no legal impediment to restore its name in the Register of Companies. It is stated in the Appeal that Narayan Infrastructure Private Limited is carrying on its business and operation.
This Tribunal feels it just that the name of the Company be restored with the Register of Companies and accordingly order for restoration of the name of the Company to the Register of Companies.
Appeal is allowed directing the Registrar of Companies, Gujarat, Dadra Nagar and Haveli to restore the name of Narayan Infrastructure Private Limited in the Register of Companies.
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2019 (12) TMI 1440
Scope of Advance Ruling application - rate of tax on outdoor catering service - applicant contends that vide notification No. 20/2019-Central Tax (Rate), dated 30th September, 2019 the Government has reduced tax on outdoor catering to 5% - HELD THAT:- The applicant has preferred the application for seeking advance ruling on various issues but it has failed to frame any question. Instead of posing any question before the authority, the applicant has given a description of the activities undertaken by it. The applicant was also given personal hearing on 17.12.2019 wherein Advocate, Sh. Manoj Mittal and C.A, Bhuvan Mittal appeared before the Authority, but even then there was lack of clarity on the framing of question(s) for Advance Ruling. Accordingly, the application was not admitted.
The instant application for advance ruling is rejected under Section 98(2) of the CGST/HGST Act.
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2019 (12) TMI 1439
Seeking restoration of name of Company in the Register of Companies - section 252(3) of Companies Act - Appellant contends that in order to have a valid assessment order for recovery of the taxes from the Respondent Company and for any further consequential proceedings against the company under the I.T. Act, there is a need of restoration of the Company, namely, M/s. HSI Infotech Pvt. Ltd. in the Register of Companies - HELD THAT:- The Income-tax Department is an aggrieved party within the meaning of Section 252(1) read with 252(3) as it has to recover taxes and duties payable by Respondent Company and great prejudice will be caused to its revenues, if the name of the Company is not restored back - It is just and equitable to allow restoration of the name of the company, the Appeal is allowed.
The Registrar of Companies, is directed to restore the name of M/s. HSI Infotech Pvt. Ltd. in its Register, as if the name of the Company had not been struck off in accordance with section 248(1) of the Companies Act, 2013 - application allowed.
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2019 (12) TMI 1438
Validity of assessment - assessee had challenged the non service of notice u/s. 143(2) - addition u/s 68 - HELD THAT:- Once a notice has been sent on a proper address and said notice has not returned back, then it is deemed to have been affected in time to the assessee. The Hon'ble Jurisdictional High Court in the case of CIT vs. Madhsy Films Pvt. Ltd. [2008 (3) TMI 19 - HIGH COURT OF DELHI] in the context of notices issued u/s. 143(2) held that, where notice has been issued to the assessee u/s. 143(2) and has been sent by the speed post on the given address as per the return of income and if the same has not been received back, then it is presumed that it has reached the assessee. Similar view has been taken in the case of CIT vs. Yamu Industries Ltd. as [2007 (5) TMI 237 - DELHI HIGH COURT]. Accordingly, we hold that here in this case notice has not only been sent on the address mentioned in the return of income but also been duly served under the law within statutory time limit and accordingly the ground raised by the assessee is dismissed.
Addition u/s 68 - As assessee got the money as confirming party and not on behalf of someone else or as some kind of advance. It fairly evident from the records that assessee has received the amount from M/s. Samyak Projects Pvt. Ltd. which is nothing but income of the assessee, because M/s. Aravali Heights Infratech P. Ltd. had entered into an agreement with M/s. Yathartha Constructions vide MOU where M/s. Samyak Projects Ltd. acquire the right to develop the said land along with purchase of share resulting in 100% control in both the companies.
Onus in the confirming party had agreed to transfer the interest in land to M/s. Samyak Projects Ltd. to a total consideration of ₹ 81.88 crores. Thus, in the entire deal assessee gets an amount of ₹ 35,91,73,500 which definitely is an income of the assessee which has not been shown. Thus, the finding arrived by the Ld. CIT (A) cannot be tinkered and accordingly this issue is decided against the assessee and the grounds raised on this issue are dismissed.
Deposits in accounts of the assessee neither any evidence has been filed before the authorities below in support of any cash withdrawal which has been claimed to have been re-deposited nor any proper supporting documents or the explanation about the source of deposit has been filed. In absence of any rebuttal or explanation, the amount of deposits of ₹ 1,67,84,000/- has rightly been taxed as unexplained. Ld. CIT (A) has observed that the assessee has not been able to provide any evidence in support of his claims and merely giving a generalized statement that the cash deposits are from the cash withdrawal made earlier is not sufficient evidence. The assessee has not been able to correlate the cash withdrawn and subsequent deposits. In absence of any cogent reason and evidence, the authorities below are justified in holding cash deposits as unexplained. Accordingly, this ground is also dismissed.
CIT(A) has already directed the Assessing Officer to verify from the computation of income filed alongwith the return of income whether the same has been offered to tax or not. Accordingly, the appeal of the assessee is dismissed.
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2019 (12) TMI 1437
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- The Corporate Debtors did not make the payment against the default amount. None appeared on behalf of the Corporate Debtor to oppose the prayer made by the petitioner, hence they were proceeded ex parte. The present petition being filed in July, 2019 is within the limitation, being within three years from the date of the cause of action. Considering the circumstances this Tribunal is inclined to admit this petition and initiate CIRP of the Respondent. Accordingly, this petition is admitted.
Petition admitted - moratorium declared.
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2019 (12) TMI 1436
Grant of anticipatory bail - Nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C. - Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC.? - HELD THAT:- On a plain reading of Section 438 Cr.P.C., it is evident that both the High Court and the Court of Sessions are conferred with a concurrent jurisdiction to entertain an application for anticipatory bail. It essentially enables the party to exercise a choice of moving either the High Court or the Sessions Court for the consideration of an application seeking anticipatory bail depending upon the exigencies of the situation. The statute, as is manifest, places no restriction on the exercise of this choice. It is in this sense akin to Section 439 Cr.P.C. which too confers concurrent jurisdiction on the Court of Sessions and the High Court. The distinction between the two only being that while Section 438 Cr.P.C. deals with pre-arrest bail, Section 439 Cr.P.C. is liable to be invoked once a person has been arrested and taken into custody - Section 438 Cr.P.C. as introduced by the Legislature thus puts in place two possible avenues for redress leaving it open to the individual to exercise a choice to move either the High Court or the Court of Sessions for consideration of a prayer for grant of anticipatory bail. The Court consequently finds itself unable to either recognize or read that provision as mandating the Court of Sessions being necessarily moved in the first instance before the jurisdiction of this Court is invoked. The Court also finds itself unable to discern any legislative intendment that may support the contention that the jurisdiction of this Court may be invoked only once an applicant has exhausted the remedy as available before the Court of Sessions.
The Courts should have unfettered discretion and may entertain revision notwithstanding the prevailing practice if they feel justified on the basis of facts and circumstances of each case - thus, Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court.
In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.? - HELD THAT:- While there exists no fetter or restriction upon the High Court entertaining an application under Section 438 Cr.P.C. directly it would ultimately depend upon the discretion of the Judge available to be exercised in the facts and circumstances of each case and upon finding special circumstances which warrant this Court to invoke its jurisdiction in the first instance rather than relegating the party to the Court of Sessions.
Exceptional or Special Circumstances, requiring the party to invoke the jurisdiction conferred on a Court of Sessions must be recognized as the normal course and the High Court entitled to be moved only in extraordinary circumstances and special reasons - HELD THAT:- What would constitute "special circumstances" in light of the nature of the power conferred, must also be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would perhaps be imprudent to exhaustively chronicle what would be special circumstances. As noticed above, it would be impossible to either identify or compendiously propound what would constitute special circumstances - Without committing the folly of attempting to exhaustively enunciate what would constitute special circumstances or being understood to have done so, the High Court would be justified in entertaining a petition directly in the following, amongst other, circumstances:-
(A) Where bail, regular or anticipatory, of a coaccused has already been rejected by the Court of Sessions;
(B) Where an accused not residing within the jurisdiction of the concerned Sessions Court faces a threat of arrest;
(C) Where circumstances warrant immediate protection and where relegation to the Sessions Court would not subserve justice;
(D) Where time or situational constraints warrant immediate intervention.
These and other relevant factors would clearly constitute special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail.
Perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.11 and Neeraj Yadav And Another Vs. State of U.P Turning then to the issue of the perceived conflict between the views expressed in Harendra Singh and Neeraj Yadav - HELD THAT:- While Harendra Singh fails to notice the decision of the Full Bench in Onkar Nath Agrawal, the conclusions ultiamtely recorded by the learned Judge are in tune with what was ultimately laid down as the law by the Full Bench. It must also be borne in mind that Neeraj Yadav is firstly not a judgment but an interlocutory order. Although the same came to be passed after the final judgment was rendered in Harendra Singh, the learned Judge has not noticed the principles expounded in Harendra Singh. Notwithstanding these aspects surrounding the decisions aforementioned, this Court is of the firm view that there is essentially no conflict in the two decisions. While the the Full Bench in Onkar Nath Agrawal did hold that an application for anticipatory bail may be moved in the High Court without the applicant taking recourse to the Court of Sessions, it had also pertinently observed that there may be cases where the High Court may feel justified in asking the applicant to move the Sessions Court or even refer the matter to that Court on its own. The Full Bench clearly left it upon the discretion of the Judge hearing the case - As this Court reads the two decisions referred to by parties, it is manifest that there is no irreconcilable conflict in the views expressed. The decision in Harendra Singh as well as the interlocutory order made in Neeraj Yadav must be read in light of the authoritative pronouncement rendered by the Full Bench in Onkar Nath Agarwal and this Court finds no justification in the submission that the two take divergent or incompatible views.
Impact of the Explanation to Section 438(2) Cr.P.C. - HELD THAT:- All that can possibly be deduced from the Explanation is that a party would have the right to assail and challenge an order rejecting an application for grant of anticipatory bail or an interim measure of protection passed on such an application in accordance with law and the provisions made in the Code. On such challenges being initiated, the orders passed under sub-section (1) of Section 438 would not be liable to be construed as interlocutory orders. The Explanation also appears to be a clear manifestation and adoption of the recommendations made by the Law Commission in its reports noticed hereinbefore, namely, of the need to create an avenue to challenge orders passed on applications for anticipatory bail.
The question which however remains to be answered is whether the Explanation so appended would foreclose the right of parties to move the High Court even after an application for anticipatory bail has come to be rejected by the Court of Sessions. The answer to this question must necessarily be in the negative for reasons which follow. At the very outset, it must be noted that Section 438 on its plain terms does not engraft or put in place such a bar. An order passed by the Sessions Court rejecting an application for grant of anticipatory bail is not conferred any finality - The insertion of the Explanation does not lead this Court to hold that it denudes this Court of the jurisdiction to entertain and decide an application for anticipatory bail notwithstanding a similar application having been denied by the Court of Sessions. The mere creation of a remedy cannot be read as debarring the jurisdiction of a superior Court. There must necessarily be an express legislative command and intendment in support of such a contention. The Court also bears in mind that while the Law Commission Reports did recommed the insertion of a provision denying the right of a second application for grant of anticipatory bail, that recommendation was not accepted - It is therefore evident that while the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1), it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions.
The period for which anticipatory bail should operate - HELD THAT:- Judicial propriety and discipline mandates this Court following the view expressed by a larger Bench in a subsequent decision. It would therefore be appropriate and correct to follow the view expressed by the Larger Bench of the Supreme Court in the decisions rendered after Mhetre as laying down the principle liable to be followed till such time as the question is authoritatively settled by the Larger Bench of the Supreme Court. Consequently, it must be held that an order granting anticipatory bail would be entitled to continue only till the Court summons the accused based on the report that may be submitted under Section 173(2) Cr.P.C. whereafter it would be open for the applicant on appearance to seek regular bail in accordance with the provisions made in Section 439 Cr.P.C.
Application disposed off.
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2019 (12) TMI 1435
Power of the first appellate authority - Capital gain computation - Invoking section 50C - as pe CIT-A asset as depreciable and accordingly, the AO was right in invoking section 50C - HELD THAT:- CIT(A) has directed the AO to make a reference to the Valuation Officer in accordance with provisions of section 50C(2) of the Act. As mentioned earlier, the CIT(A), in an appeal against an order of assessment, may confirm, reduce, enhance or annul the assessment. He has no power to set aside/restore the order to the file of the AO.
In such a scenario, the order passed by the Ld. CIT(A) being not in conformity with section 251 of the Act is bad in law. Consequently, we annul the impugned order. Assessee appeal is allowed.
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2019 (12) TMI 1434
Approval of scheme of amalgamation of the Transferor Companies with the Transferee Company - Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- It is found that all 99.99% of the Equity Shareholders of the Applicant Companies have given respective consent affidavits agreeing to the Scheme. Hence the meeting of the Equity Shareholders of all the Applicant Companies can be dispensed with, in terms of Section 230 (9) of the Act. It is found that there are no Secured Creditors in all the Applicant Companies and hence no need to convene the meeting of the Secured Creditors of all the Applicant Companies.
It is also found that all the Unsecured Creditors of the Transferor CompanyIl and Transferor Company-Ill have given respective consent affidavit agreeing to the Scheme. Hence the meeting of the Unsecured Creditors of the Transferor Company-Il and Transferor Company-Ill are dispensed with, in terms of Section 230(9) of the Act. The Transferee Company has no unsecured creditors. Thus no meeting is contemplated.
The Transferor Company No. I has seventy seven (77) Unsecured Creditors as on 30.06.2019 as per the report of the Auditor having total debt of ₹ 57,77,818/-. Thirty Five (35) Unsecured creditors have given their consent to the Scheme by way of affidavits. Later, a memo dated 18.11.2019 was filed showing discharge of 40 unsecured creditors having a debt to the tune of ₹ 13,61,963/-. As per order dated 20.12.2019, the Petitioner furnished the Report of the Auditor certifying discharge of Forty (40) Unsecured Creditors. Two creditors having a credit value of₹ 10,290/- have not given their consent. Thus the percentage of creditors who have consented to the scheme comes to 99.76% which is above the threshold of 90% provided mnder section 230(9) of the Companies Act, 2013.
Application allowed.
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2019 (12) TMI 1433
Scope of service - shot hole drilling - seismic job - sub contract work - whether the activities undertaken covered under taxable service of survey and exploration of minerals? - Held that: - the services rendered are liable to service tax under the scope of the above-mentioned tax entry - HELD THAT:- List on a non-miscellaneous day in the last week of February, 2020.
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2019 (12) TMI 1432
Seeking direction to make repayment of the deposit(s)/debenture(s) along with interest due - section 71(10) of the Companies Act, 2013 read with rule 73 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is not case of even the petitioners that the company has resorted to misappropriation/fraud in order to deny the claim of the petitioners. The financial status of the company discloses that the company is suffering substantial losses leading to severe financial distress making it unable to pay its stakeholders. Since the issue is not exclusively confined to the petitioners, as several similarly situated stakeholders, as per the list enclosed to the petition, the efforts being by the company like to explore the possibility of settlement, refer the matter to arbitration, selling properties of the companies, are appropriate/plausible steps to be pursued so as to find solution to the entire issue.
The basic facts as contended by the petitioners, prima facie, are not in dispute. While deciding an application/petition filed under section 71(10) of the Companies Act, 2013 read with rule 73 of the NCLT Rules, 2016, the Tribunal has to consider financial status of company, the interest of all stakeholders, etc., before ordering to repay the outstanding standing exclusively in respect of the petitioners. The reasons furnished by the company for its failure to redeem debentures, pay interest of NCDs in question, are convincing. Therefore, it would be just and proper to grant six months' time tentatively to the company to explore all possibilities of settlement of the claims of the petitioners along with all similarly situated claimants.
The respondent-company is hereby granted six months' time, pro visionally from today, so as to explore all possibilities of settlement of claims of the petitioners along with other similarly situated claimants.
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2019 (12) TMI 1431
Disqualification of Directors - permission to Petitioner to get re-appointed or appointed as Directors in any other Company without any hindrance - section 164 (2) (a) of the Companies Act 2013 - HELD THAT:- The issue decided in the case of BHAGAVAN DAS DHANANJAYA DAS VERSUS UNION OF INDIA, REGISTRAR OF COMPANIES, TAMILNADU CHENNAI [2018 (8) TMI 436 - MADRAS HIGH COURT], where it was held that when the default in filing the accounts or returns are made as compoundable offence, Section 164(2)(a) providing the disqualification of director of private company not only in the defaulting company, but also from other company in which the petitioner is a director, diligently and meticulously following every provision of law, is certainly disproportionate to the lapse, as it is only regulatory in nature, because, notice to be sent under section 248(1) of the Companies Act, 2013 by the Registrar of Companies for striking off the name of the company from the Registrar of Companies on the premise that the company has not been carrying on any business for a period of two financial years, is different from the disqualification under section 164(2)(a), inasmuch as a company can be struck off, if the company has not been carrying on any business for a period of two financial years, whereas for disqualification, the criteria is three financial years. Hence, Section 164(2)(a) is read down to the extent it disqualifies the directors in other companies which are scrupulously following the requirements of law, making it clear that no directors in other companies can be disqualified without prior notice.
As the Petitioner in this case is similarly placed to the Petitioners in the aforesaid batch of cases relating to the same impugned list published in the website by the Respondents, they are entitled to identical relief that has been granted to them - Petition allowed.
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2019 (12) TMI 1430
Non filling of appeal electronically within period of limitation - Appeal filed manually - Whether appeal cannot be treated as non-est in the eyes of law as appeal was not filed electronically as prescribed under Rule 45 of the Income Tax Rules, 1962? - HELD THAT:- As the assessee has filed its appeal manually on 25.04.2016 and has e-filed the same on 12.01.2019, the said e-filed appeal would in fact relate back to the date of filing of the appeal manually on 25.04.2016. This being so, we are of the view that the order of the Ld. CIT(Appeals) is unsustainable and consequently, set aside the same and the issues in this appeal are restored to the file of the Ld. CIT(Appeals) for adjudication on merits.
As relying on M/S. SOUTH INDIA BOTTLING CO. PVT. LTD. VERSUS THE DY. COMMISSIONER OF INCOME TAX, CHENNAI [2019 (8) TMI 1624 - ITAT CHENNAI] the orders of the learned CIT(A) are set aside and the issues raised in the appeal are restored to the file of the learned CIT(A) to adjudicate on merits.
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