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2019 (12) TMI 1610
Recovery of dues - priority of claims - whether the second charge holder has any right to claim priority over the first charge holder? - HELD THAT:- This question has already been answered in the court itself and the Liquidator is directed to distribute the funds strictly adhering to the ratios as arrived by him for the first charge holder as per the Code. If at all any grievance on the part of the second charge holder, they may approach the competent court but they have no authority to approach this Bench.
Application disposed off.
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2019 (12) TMI 1609
Decree of partition - failure to examine any of the attesting witnesses to the Will as required vide Section 68 of the Evidence Act - HELD THAT:- The summons/notice were issued to Mr. M.N. Sharma, Advocate to appear as a witness but he could not be served and hence was not examined. Ramesh Kumar, it is submitted, was not summoned or examined as he was none other than the husband of Raj Kumari and would not have supported execution of the Will. The High Court has accordingly held that the Will being registered was proved in terms of section 71 of the Evidence Act. This finding of the High Court is unacceptable, for recourse to Section 71 of the Evidence Act is impermissible without examination of Ramesh Kumar. It would not matter if Ramesh Kumar is husband of Raj Kumari. Section 71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the Will. In that event, the execution can be proved by other evidence. The respondent accepts that Ramesh Kumar though a witness was not summoned and asked to depose as a witness and therefore, it cannot be said that Ramesh Kumar as an attesting witness had denied or did not recollect execution of the Will.
Even on the question of “other evidence” we have grave and serious reservations. It is apparent that late father of Raj Kumari and Surinder Pal Sharma and grandfather of appellants Meenakshi Sharma and Veena Malhotra being a displaced person had applied for a two-room accommodation which was allotted to his wife Suhagwanti on 15.03.1972 as by then he had expired - It has also come on record that Madan Lal, the eldest sibling was earning and in service at the time of allotment. There is also evidence that Madan Lal had contributed and financially helped at the time of marriage of his sisters namely Raj Kumari and Puran Devi.
Clearly, Surinder Pal Sharma had not propounded and referred to the Will in his reply, which defence was taken by him for the first time in his written statement. This is also clear from the cross-examination of Surinder Pal Sharma wherein he had accepted as correct that the Will was not challenged by Raj Kumari in the court of law as she had come to know about the Will during the pendency of the present case.
The Will which purportedly makes the bequest, is oddly described as a Will Deed. This possibly explains why Surinder Pal Sharma had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother Suhagwanti. It is in this context that we have read the different portions of the testimony of Raj Kumari and Surinder Pal Sharma; the notice and the reply to hold that there exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be. The marriage of Veena Malhotra as per her wish is not challenged. The testator was an illiterate lady. Even if we are to accept signatures of the testator and the witnesses, we cannot ignore “other evidence” that Suhagwanti and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which Surinder Pal Sharma, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed. For these reasons, we would hold that execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act.
The present appeal should be allowed and the judgment of the High Court should be set aside.
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2019 (12) TMI 1608
Revision u/s 263 - Addition u/s 14A r.w.r. 8D - HELD THAT:- Assessee has taken unsecured loans, which have been utilized for the purpose of investment in shares of private limited companies controlled by the family members and investment in partnership firm. Such investment was at Rs.26.55 crores as on 31.03.2013 and Rs.27.17 crores as on 31.03.2014. The assessee has paid interest of Rs.2,91,18,343/- on unsecured loans and claimed deduction out of income, which has been during allowed by the AO. CIT viewed that such interest is not allowable under section 14A and under section 57(iii) as investment made was related to exempt income and interest expenses were incurred for earning income from other source. However, it is noticed that there was negative income from partnership firm and no dividend income has been earned during the year under consideration, therefore, no expenditure has been incurred for earning exempt income, hence, disallowance under section 14A read with Rule 8D cannot be made as held by the Hon’ble Gujarat High Court in the case of CIT v. Corrtech Energy Pvt. Ltd [2014 (3) TMI 856 - GUJARAT HIGH COURT]
Hon`ble Supreme Court in CIT v. Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] reiterated that the phrase "prejudicial to the interests of the Revenue" as used in section 263(1) of the Act must be read in conjunction with the expression "erroneous" and unless the view taken by the Assessing Officer is found to be unsustainable in law, the powers under section 263 of the Act cannot be invoked.
The order passed by the AO, in our opinion, shall be deemed to be erroneous in so far as it prejudicial to the interest of the Revenue, if the Pr. CIT would have specifically pointed out which of inquiries or verification should have been carried out by the AO in this regard and the AO failed to carry out those inquiries and verification as desired by the Pr. Commissioner of Income-tax. Since the Pr. CIT has not suggested the basis of inquiry or verification to be carried out by the AO, the order passed by the AO cannot be deemed to be erroneous in so as far as it is prejudicial to the interest of the Revenue.
We are of the opinion that the AO has adopted one possible legal view sustainable in law on the issue and mere invoking proviso based on revenue audit objection amounts non application of mind. Merely just because the view taken by the AO was not found acceptable does not mean that the AO has failed to make requisite enquiries. Thus, the view taken by the AO was plausible view, which cannot be disturbed by the Pr.CIT. Therefore, we find that twin condition were not satisfied for invoking the jurisdiction under section 263 of the Act. Therefore, in absence of the same the ld. Pr.CIT was not correct in exercise the jurisdiction under section 263 of the Act. In view of these facts and circumstances, we quash the impugned order passed under section 263 of the Act and allow the appeal of the assessee.
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2019 (12) TMI 1607
offences alleged against the accused are falling within the purview of Serious Fraud Investigation under the provisions of Companies Act or not - Whether the offences of similar nature, relating to the affairs of the Company if investigated into under different First Information Reports by Police would cause prejudice to the accused? - Whether the Court can direct investigation into the offences, registered under different F.I.Rs. but pertaining to similar/ same act of accused be transferred to one agency for effective investigation?
HELD THAT:- The law is well settled by the Apex Court in its recent judgment that failure to repay a loan is not a criminal offence unless there is a fraudulent intent.
A careful perusal of the provisions of Companies Act, 2013, demonstrates that the irregularities in conducting the business and affairs of the company would stand on a special category for investigation and that is the reason why experts in various fields of the Corporate Law are sought to be appointed as members of the team of investigators. It is evident that criminal acts under Sections 409, 410 and 420 of I.P.C. are general offences/crimes, whereas the case on hand falls within the offence relating to company affairs is falling within a special category that requires special kind of investigation unlike normal investigation into general offences under I.P.C. - It is the duty of the State to ensure that every citizen of the Country should have the free and fair investigation and trial. The preamble and the Constitution are compulsive and not facultative, in that free access to the form of justice is integral to the core right to equality, regarded as a basic feature of our Constitution. Therefore, such a right is a constitutional right as well as a fundamental right. Such a right equally be protected to the accused and to the victim depending upon the facts of the case. Therefore, such a right is not only a constitutional right but also a human right. Any procedure which comes in a way of a party in getting a fair trial would be violation of Article 14 of the Constitution of India.
Thus, the investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.
The underlying ratio of criminal jurisprudence is to protect the rights of not only the aggrieved but also of the accused. Where similar offences are registered in various police stations and they are falling within the Companies Act (a special legislation) and normal police are investigating into the offences at various police station limits, this will lead to absurdity, confusion, conflict of views and consume long time. On the other hand, it will cause harassment to the accused besides humiliation as she will be forced to run from pillar to post every day during investigation.
Respondent are directed to assign the investigation in the aforesaid crimes to SFIO, Hyderabad, by obtaining necessary orders from the State Government, if necessary - 2nd petitioner shall be released on her furnishing a personal bond for Rs.50,00,000/- with two sureties to the like amount to the satisfaction of the Metropolitan Sessions Judge, Nampally, Hyderabad - Petition disposed off.
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2019 (12) TMI 1606
Retesting of seized goods - it is stated that all the items have been manufactured by him in his workshop and he did not get these items registered under Archaeological Survey of India, Act nor he registered under AAI Act - HELD THAT:- The adjudicating authority while deciding the matter has not taken into consideration the request made by the appellant and the supplier of the three items Mr. Mukesh Kumar Kumawat for retesting of the seized goods. From perusal of the entire proceedings, it is found that there is force in the submissions which has been made by the appellant as well as by Mr. Mukesh Kumar Kumawat.
The confiscation of three impugned items including the penalty on Shri Rahul Chauhan and Shri Mukesh Kumar Kumawat do not appear to be justified. However, the original authority is directed to get the subject goods retested from the recognised Gem & Jeweller laboratory for determination of the classification of the goods and whether they fall under category of antique and accordingly the matter is remanded to the adjudicating authority to get the goods retested and decide the matter afresh.
Appeal allowed by way of remand.
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2019 (12) TMI 1605
Vacation of ex-parte interim relief granted - arising of hardship as the company's project i.e. construction of hospital is going on - HELD THAT:- Looking to the undertaking given by the Respondent the appeal is disposed off. This order will continue till the disposal of the main Company Petition which is pending before NCLT. No order as to cost.
Respondent is directed to file reply to the Company Petition No.98/CB/2019 which is pending before NCLT, Cuttack Bench, Cuttack before 19th December, 2019.
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2019 (12) TMI 1604
Legality of the notices and assessment orders issued to the petitioners - retrospective applicability of section 25(1) of the KVAT Act - time limitation for re-opening assessments - five year period for re-opening assessments under the unamended provisions of section 25(1) of the KVAT Act had already expired - residual power of State legislation so as to amend the provisions of section 25(1) of the KVAT Act through the Kerala Finance Act, 2018 - applicability of savings clause under section 174 of the SGST Act.
Whether under the provisions of section 25(1) of the KVAT Act, as amended by the Kerala Finance Act, 2017, and before the repeal of the KVAT Act on June 22, 2017, the six year period of limitation for re-opening assessments could be relied upon to issue pre-assessment notices in cases where, by March 31, 2017, the five year period for reopening assessments under the unamended provisions of section 25(1) of the KVAT Act had already expired? - whether the amendment to the third proviso to section 25(1) of the KVAT Act, through the Kerala Finance Act, 2017, would enable the revenue to re-open assessments in cases where, by March 31, 2017, the five year period for re-opening assessments under the unamended provisions of section 25(1) of the KVAT Act had already expired? - HELD THAT:- It is now well-settled that on the expiry of the period of limitation prescribed under a fiscal statute for re-opening an assessment, the assessee gets a valuable right in the form of immunity from assessments under the Act. The said vested right/immunity cannot be taken away through any power of extension of the period of limitation, exercised after the expiry of the said period, by any authority in whom such power to extend is conferred by the statute. The power to extend a period of limitation must be exercised before the expiry of the normal period.
Whether a legislative amendment can confer such a power on a statutory authority to take away a right/immunity that has accrued to an assessee? - HELD THAT:- It is well-settled that the Legislature can, through a retrospective amendment of the statutory provisions, take away such vested rights that have accrued to assessees. But, was there such a retrospective amendment in the instant cases? As already noticed, the amendment in question was expressly made effective only from April 1, 2017. The period for reopening assessments under section 25(1) of the Act was enlarged from five years to six years only with effect from April 1, 2017. The provisions of section 25(1), save the third proviso thereto, have therefore to be construed as having only a prospective operation.
In the instant cases, it can be seen that the purpose of the amendment to the third proviso to section 25(1) of the KVAT Act was only to extend the time for re-opening those assessments where the period of limitation for re-opening under the unamended provisions was to expire by March 31, 2017. The object of the amendment was to permit a re-opening of such cases till March 31, 2018. The amendment has to be viewed in the backdrop of the introduction of the new regime of GST in the State with effect from June 22, 2017, on which date the KVAT Act was repealed by the State Legislature - the circumstances under which the amendment was carried out clearly bring out the intention of the Legislature to permit a re-opening of past assessments under the KVAT Act up to March 31, 2018 and it is this intention that must be read into the third proviso to section 25(1), as amended with effect from April 1, 2017, so as to give it full effect.
Thus, while the main part of section 25(1) clearly indicates that the extended period of six years for reopening assessments is to operate prospectively with effect from April 1, 2017, the third proviso seeks to carve out those assessments, where the period of re-opening would have expired by March 31, 2017, for a differential treatment, by stating that in such cases, the re-opening could be carried out before March 31, 2018. To treat the said proviso as having only prospective effect would render meaningless the words used by the Legislature in the said proviso and accord to it the same meaning as the main provision.
Whether, after the CAA, 2016, and the repeal of the KVAT Act pursuant thereto, on June 22, 2017, the State Legislature retained any residual power of legislation so as to amend the provisions of section 25(1) of the KVAT Act through the Kerala Finance Act, 2018? - Whether the amendment to the provisions of section 25(1) of the KVAT Act, through the Kerala Finance Act, 2018, and the pre-assessment notices and assessment orders issued consequent thereto, could be justified by relying on the savings clause under section 174 of the SGST Act? - HELD THAT:- The amendments effected to section 25(1) of the KVAT Act, through the Kerala Finance Act, 2017, were before the repeal of the KVAT Act with effect from June 22, 2017. The provision as it stood then, and in particular the third proviso thereto, authorised the reopening of past assessments till March 31, 2018. The amendment effected through the Kerala Finance Act, 2018, with effect from April 1, 2018, enlarged the period for re-opening past assessments from March 31, 2018 to March 31, 2019. Under ordinary circumstances, and based on my findings above as regards the effect of the amendments brought into the third proviso to section 25(1) by the Kerala Finance Act, 2017, the legislative measures should have sufficed to justify a reopening of past assessments up to March 31, 2019, notwithstanding that the amendment itself was effective only from April 1, 2018. However, the intervention of the CAA 2016, and the consequent repeal of the KVAT Act with effect from June 22, 2017, has a bearing on the legality of the 2018 amendment. A distinction does exist between the saving of rights, privileges, immunities and liabilities under a repealed enactment, through a savings clause inserted in the new enactment traceable to the same legislative power, and an amendment brought in to a repealed enactment after the legislative power itself is taken away.
While the new legislative power could justify the inclusion of a savings clause in the new legislation enacted in respect of the new levy of tax, to save accrued rights, privileges, immunities, etc., under the erstwhile enactment, the deletion of entry 54 of List II automatically denuded the State Legislatures of the power to further legislate on the subject of taxes on sale or purchase of goods, except to the limited extent retained under the Constitution. The power to amend a statute being a facet of the legislative power itself, the State Legislature could not have exercised a power to amend the KVAT Act, save to the extent permitted, when it did not retain any residual right to further legislate on the subject of taxes on sale or purchase of goods.
The amendments to section 25 of the KVAT Act, through the Kerala Finance Act, 2018 are declared illegal and unconstitutional inasmuch as they were beyond the legislative competence of the State Legislature - the assessments in respect of which the period of limitation for re-opening under section 25 of the KVAT Act was to expire by March 31, 2017 can be re-opened up to March 31, 2018 by virtue of the amendment to the third proviso to section 25(1) vide Kerala Finance Act, 2017 - the assessments in respect of which the period of limitation for re-opening under section 25 of the KVAT Act was to expire by March 31, 2018 cannot be re-opened up to March 31, 2019 or thereafter, by relying on the amendments introduced through the Kerala Finance Act, 2018 since the State Legislature did not have the power to amend the KVAT Act after the CAA 2016, and the repeal of the KVAT Act pursuant thereto, on June 22, 2017.
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2019 (12) TMI 1603
Validity of the order framed u/s 153A - as argued additions have been made without any reference to any incriminating material/evidence found during the course of search and seizure proceedings - HELD THAT:- It is true that the entire assessment is devoid of any reference to any incriminating material or evidence found during the course of search and seizure proceedings. We find that the AO has taken a leaf from the search operations conducted at the premises of Jain brothers and formed a belief that the assessee is one of the beneficiaries of the accommodation entries provided by the Jain brothers. However, the premises of the assessee were also searched and in the search proceedings, no incriminating material or evidence was found by the search party.
Share application money/premium received by the assessee has already been recorded in its books of account and return of income was already filed on 30.03.2007. No notice u/s 143(2) of the Act was issued and served upon the assessee and by necessary implication, return of income was accepted. The ratio laid down by the Hon'ble Delhi High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] squarely applies on the facts of the case in hand wherein the Hon'ble High Court has held that completed assessment can be interfered with by the Assessing Officer while making assessment u/s 153A of the Act only on the basis of some incriminating material unearthed during the course of search. - Decided in favour of assessee.
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2019 (12) TMI 1602
Addition u/s 271(1)(c) - Defective notice u/s 274 - whether the penalty is sustainable when the same has been initiated and levied without specifying the alleged guilt committed by the assessee either for “concealment of income” or furnishing of “inaccurate particulars of income”? - HELD THAT:- AO has not mentioned the specific charge in its penalty orders as to whether it was levied for concealment of income or for furnishing inaccurate particulars of income. No such definite finding is reflecting from the orders impugned before us. Therefore, in our considered view, the penalty levied by the AO and confirmed by the CIT (A) is not sustainable in the eye of law. The penalty is, thus, deleted. Hence, the ground of appeal of the assessee is allowed.
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2019 (12) TMI 1601
Disallowance u/s. 14A r.w.r. 8D - whether assessee has not earned any exempt income ? - HELD THAT:- It is an undisputed fact that assessee has not earned any exempt income during the year. Facts being identical respectfully following the said decision in assessee’s own case [2019 (6) TMI 1674 - ITAT MUMBAI] we do not find any infirmity in the order passed by the Ld.CIT(A) in deleting the disallowance on the ground that assessee has not earned any exempt income during the assessment year under consideration. - Decided against revenue.
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2019 (12) TMI 1600
Disallowance @10% of the dividend u/s 14A - case of the appellant is that all the scripts of investments are held by it as stock in trade, therefore, no disallowance u/s 14A can be made - DR submitted that provisions of section 14A will apply even if the assessee has shown the investment generating exempt income as stock in trade - HELD THAT:- As submitted that investments are held by assessee as stock in trade. In the present case the issue is squarely covered by the decision of Maxoop Investment Ltd [2018 (3) TMI 805 - SUPREME COURT] as held that when the share are held as stock in trade, it becomes the business activity of the assessee. Whether the dividend earned or not is immaterial. It would be “quirk of fate‟ if the dividend is received. The Hon‟ble Supreme Court thus held that in such cases there cannot be any disallowance u/s 14A of the Act. Thus, the fact is not denied that assessee is holding exempt income generating investment as stock in trade, the disallowance made by the ld Assessing Officer and confirmed by the ld CIT(A) is not sustainable. Accordingly, we direct the ld Assessing Officer to delete the disallowance u/s 14A of the Act.
Deduction u/s 36(1)(viii) -Addition of interest on housing loans - HELD THAT:- In the present case the methodology adopted by the assessee is consistently followed for last eight years. Same was accepted by the revenue without any objection. The only issue is with respect to how the profit of the business for the purpose of long term housing finance shall be worked out. The only issue is that assessee is computed with respect to the total income with respect to the interest income whereas the ld AO has applied the above ratio to the total receipt. When the method has been consistently accepted for the above year we do not find any reason to defer from that. In view of this we do not find any infirmity in allowing the assessee claim of deduction u/s 36(1)(viii) of the Act applying the ratio of 62.75%. In the result we do not find any merit in ground No. 1 of the appeal. Hence, it is dismissed.
Disallowance u/s 14A - CIT(A) deleted the disallowance as per Rule 8D but retained 10% of such disallowance - HELD THAT:- AO has not recorded any satisfaction with respect to the expenditure incurred in relation to exempt income. Therefore, on this account the disallowance cannot be made by the ld Assessing Officer under that section without recording satisfaction that assessee has incurred some expenditure in relation to exempt income. Further as held by us in appeal of the revenue for AY 2009-10 that assessee is holding these investments as stock in trade no disallowance can be made. For the reasons given by us in the appeal of the assessee wherein, we have directed to delete the disallowance, this ground of appeal of revenue is also deserves to be dismissed. Accordingly, ground No. 2 of the appeal is dismissed.
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2019 (12) TMI 1599
Suit for infringement of this trademark and passing off - first and foremost point is that ‘Shyam’ is another name of Lord Krishna, no exclusive right can be claimed by anybody over this mark - HELD THAT:- Section 125 says that where in a suit for infringement of a registered trademark the validity of registration is questioned by the defendant, the application under Section 57 has to be made only to the Appellate Board. Sub-section 2 provides that subject to sub-section 1 if an application for rectification of the register is made to the Registrar under Section 57, if he thinks fit shall refer the application at any stage of the proceedings to the appellate board. The effect of this section, inter alia, is that the question of validity of a trademark is to be decided by the tribunal.
The court retains its powers to decide the question of validity on a prima facie basis, pending this decision. When this question of validity is raised and referred to the tribunal or it is pending before the tribunal, the interlocutory application can be disposed of but the suit has to remain stayed till the disposal of the lis by the Appellate Board.
This court cannot say as an infallible principle of law that registration of the word ‘Shyam’ was invalid and its registration should be cancelled. The respondent has to prove, by leading cogent evidence, before the Board, that indeed the name ‘Shyam’ refers to God only, is not distinctive of the appellant, is generic and common. Hence, its registration was invalid. The respondent has not been able to establish this, even prima facie - The respondent has also not been able to produce any significant evidence to show that it was carrying on business using the subject trademark evidence by sales figures, prior to registration of the appellant’s mark or prior to the date from which the appellant claimed first user of the mark.
The impugned ad-interim order was made only on the basis of the petition. Before us there is additional evidence in the form of the affidavit-in-opposition and the affidavit-in-reply. Some supplemental papers have also been filed. Therefore, the case is considered on the basis of the petition as well as the additional evidence produced. This court is not called upon only to evaluate whether the exercise of discretion by the learned trial court was right or wrong. This court is duty bound to pass a suitable interim order, pending trial of the suit. In doing so, this court has to put itself in a position as if it was moved to pass an interim order in the suit.
The prima facie case on facts theoretically is in favour of the appellant. However, for atleast four years from December, 2015 the respondent has been manufacturing and selling TMT bars using the trademark ‘Shyam’, without any active interference by the appellant. Prima facie, it is opined that there is no acquiescence to its use on the part of the appellant but inaction and delay in taking action.
The respondents shall be permitted to clear their exiting stock by manufacture and sale of their products with the said existing subject trademark till 30th April, 2020 - application disposed off.
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2019 (12) TMI 1598
Assessment u/s 153A - HELD THAT:- High Court may be pleased to issue a writ, order or direction especially in the nature of writ of Mandamus calling for the relevant records from the Respondents, and (i) declaring the reason to believe purportedly recorded by 2nd and 3rd Respondents u/s. 132(l) of the Income Tax Act, 1961 as being arbitrary, illegal, without jurisdiction, mala fide and for collateral purpose and (ii) declare the warrants of authorization dated 03rd January, 2018 and 08th January, 2018 issued by the 2nd and 3rd Respondents respectively as arbitrary, without jurisdiction and illegal, and (iii) declare the consequent searches on the Petitioners premises as arbitrary, without jurisdiction and illegal and (iv) consequently, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A for the assessment years 2012-13 to 2017-18 and (v) without prejudice to above, no incriminating material seized during the course of search, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A of the Act for the Assessment Years 2012-13 to 2017-18 and (vi) without prejudice to above, the statement recorded from farmers/ growers do not constitute incriminating material, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A for the Assessment Years 2012-13 to 2017-18, and (vii) without prejudice to above, the assessment for the AY 2015-16 could not be subject to proceeding under section 153A of the Act, quash the notice dated 24th December, 2018 issued by the 4th Respondent u/s. 153A of the Act for the AY 2015-16 and (viii) restrain the Respondents from initiating any further action pursuant to the said searches.
Stay the notices issued by the 4th Respondent u/s. 153A for the assessment years 2012-13 to 2017-18 pursuant to search and seizure proceedings - The interim order granted earlier is extended upto 31.12.2019 Post the WP on 23.12.2019.
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2019 (12) TMI 1597
Seeking restoration of name of company in the Register of Companies - it is alleged that appellant company had failed to file financial statements and annual returns since 2011-12 - Section 248 of Companies Act, 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 - HELD THAT:- Undisputedly the appellant company has not filed financial statements and returns since 2011-12 onwards. ROC has served the STK-1 notice on 11.3.2017 on appellant company. Thereafter STK-5 notice dated 27.4.2017 was served and when he has not received any response then as per STK-7 Company Appeal (AT) No. 203 of 2019 notice dated 11.7.2017 the name of the appellant company was struck off from the register of companies - Except the failure to file the financial statements and returns there is no complaint against the appellant company. Appellant has placed on record the report and financial statements from 2011-12 before the NCLT as well as before this Tribunal.
On going through the reports and statements, it cannot be said that the appellant company is not carrying on any business since 2011-12. The appellant company is having assets and liabilities. In such circumstances, the order passed by the NCLT is not sustainable in law.
Appeal allowed.
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2019 (12) TMI 1596
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time Limitation - guarantor of the loan is the individual and not the corporate person - HELD THAT:- Section 5A of IBC, 2016 states Corporate Guarantor means the corporate person who is surety in contract guarantee to a Corporate Debtor. Section 3(8) of IBC defines Corporate Debtor means corporate person who owes a debt of any person. In this case, It is not in dispute that by virtue of deed of guarantee, the Corporate Debtor herein who is the corporate person owes debt to the Bank. Hence, the Corporate definition in Section 5A of IBC, 2016 of corporate guarantor cannot be considered for exclusion of this proceeding from consideration for a simple reason that the definition Is just explanatory definition as to who could be called as corporate guarantor. In this case, the Corporate Debtor is the guarantor of the individual.
The definition of the corporate guarantor relied on by him in Section 5A cannot be used to show applicability or Inapplicability of provisions of IBC against him as it hi just explanatory definition - the Financial Creditor proved that the financial debt is due and payable by the Corporate Debtor and he has committed default in paying the same.
The application is filed well within period of limitation - application filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s Surana Metals Ltd. is hereby admitted - moratorium declared.
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2019 (12) TMI 1595
Approval of Resolution Plan - section 31(1) of the IBC, 2016 - discharge or provide immunity from all the liabilities/Disputes/proceedings/penalties/suits/attachments/cases whether civil or criminal filed against the Corporate Debtor whether accounted/known or not on payment of the agreed consideration by Resolution Applicant - approval for waiver of Cost of transfer if any payable under respective statues - HELD THAT:- Section 30(6) of the Code enjoins the resolution professional to submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. Section 31 of the Code deals with the approval of the resolution plan by the Adjudicating Authority, if it is satisfied that the resolution plan as approved by the committee of creditors under section 30(4) meets the requirements as referred to in section 30(2) - the Resolution Plan includes a statement under regulation 38(lA) of the CIRP Regulations as to how it has dealt with the interest of the stakeholders in compliance with the Code and Regulations thereunder.
The 'Resolution Plan' filed with the Application meets the requirements of Section 30(2) of the I&B Code, 2016 and Regulations 37, 38, 38(1A) and 39 (4) of IBBI (CIRP) Regulations, 2016. The 'Resolution Plan' is also not in contravention of any of the provisions of Section 29A. Hence, this Adjudicating Authority is satisfied that the Resolution Plan is in accordance with Law - the Resolution Plan approved shall not construe any waiver to any statutory obligations/liabilities arising out of the approved Resolution Plan and same shall be dealt in accordance with the appropriate Authorities as per relevant Laws.
Application disposed off.
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2019 (12) TMI 1594
Benami transaction - respondent submits that in view of Section 27 of the PBPT Act, 1988 so long as the appeal is pending, no confiscation of the property can be done without issuing a proper show cause notice under Section 27 of the Act and there is no need of issuing such notice in view of the pendency of the present appeal - HELD THAT:- It appears that subsequent to the order passed by the Adjudicating Authority which is impugned before this Appellate Tribunal, the concerned authority under the said act has issued the show cause notice dated 18.10.2019 giving opportunity as stated above. In the said notice, the concerned authority i.e. Principal Director, Income Tax Department, Lucknow has categorically mentioned about the order passed by the Adjudicating Authority in PBPT Act, 1988.
In the above circumstances, the appellant is apprehending for prosecution and confiscation in the PBPT Act, 1988. In view of the above, appellant has a prima facie case that the operation of the impugned order be stayed till the next date of hearing. It is clarified that this order will not come in the way if any prosecution case is filed.
Reply is not on record. The counsel for the respondent has undertaken to file the same in the registry during the course of the day.
The copy of the same has been served on other side. The counsel for the appellant does not want to file rejoinder. The right to file the rejoinder is closed. Parties are allowed to file the written synopsis by the next date. List for final hearing on 27th May, 2020.
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2019 (12) TMI 1593
Maintainability of appeal before Appellate Tribunal - HELD THAT:- If the revision petitioner intends to assail the impugned order, he has to file an appeal before the appellate Tribunal.
Under these circumstances, the Civil Revision Petition is dismissed.
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2019 (12) TMI 1592
CENVAT Credit - input services - Goods Transport Agency Service - place of removal - period prior to 01/04/2008 - invocation of extended period of limitation - HELD THAT:- The facts of the case are not in dispute. The appellant has received the service prior to 01/04/2008 and availed the credit in November 2009. As, at the time of receiving the service, there was no bar on availment of CENVAT credit on the service in question. In the circumstances, CENVAT credit cannot be denied to the appellant. It is a fact on record that during the period when the service was availed there was no bar for entitlement of CENVAT credit on ‘outward transportation service’.
The appellant has rightly availed CENVAT credit on the service in question in November 2009 - Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1591
Cancellation of agreement - cancellation of agreement - maintainability of the application as an allottee - HELD THAT:- Let notice be issued on Respondents by Speed Post. Requisites alongwith process fee, if not already filed, be filed by tomorrow. If the Appellant provides email address of the Respondents, let notice be also issued through email.
Post the appeal ‘for orders’ on 14th January, 2020 for disposal.
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