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Showing 101 to 120 of 1385 Records
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2020 (10) TMI 1285 - ITAT AHMEDABAD
Reopening of assessment u/s 147 - notice after the expiry of 4 years from the end of relevant Assessment Year - addition of estimated addition of alleged unaccounted investment - Addition on the basis of Valuation Report of DVO - CIT(A) while deleting the estimated addition recorded that there is no evidence with AO for such estimated additions and he directed the AO to obtain a report of DVO under section 142A - HELD THAT:- The onus was on the AO to bring evidence on record to prove that the assessee has paid more amounts while purchasing these three pieces of land, than what has been recorded in his books of account. The AO has neither recorded such averments in the reasons recorded nor raised any question the assessee during the assessment. The AO directly came on the conclusion on the basis of the report of DVO that assessee made investment which is not recorded in the books of assessee. The AO without discharging his onus directly concluded on unexplained investment. In our view section 142A merely speaks about the estimate of the valuation of investments. Estimate cannot take the place of actual investment.
The Hon’ble Rajasthan High Court in Sardar Kehar Singh [1990 (11) TMI 32 - RAJASTHAN HIGH COURT] also held that it is well established that reopening of assessment on the basis of subsequent valuation report is not justified inasmuch as the report is nothing more than a mere opinion. Such a report by itself does not lead to a reasonable belief of concealment of income justifying action under clause (a) of section 147, nor does it constitute 'information' justifying action under clause (a) of the said section and quashed the notice under section 147.
We are of the view that once the assessment under section 143(3) was completed and the AO has already made addition on the same issue, and on appeal it was deleted by ld CIT(A), the reopening of the assessment on the same issue on basis of report of DVO in not valid. Therefore, all subsequent action thereto is void-ab initio. Thus, the assessee succeeds on the legal issue.
Even on merit we note that Hon’ble Jurisdictional High Court in Gayatri Enterprises [2019 (9) TMI 777 - GUJARAT HIGH COURT] held that unless it was established on record by department that as a matter of fact, consideration as alleged by department did pass to seller from purchaser, it could not be said that department had any right to make any additions. It was further held that as per section 69B, no addition could be made under said section merely on basis of presumption. We have noted that the AO has not brought any material on record that the assessee has paid/invested money in purchase of these three plots, which is not recorded in the books of the assessee. Thus, in view of the above discussions the assessee also succeeds on merit. - Decided in favour of assessee.
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2020 (10) TMI 1284 - ALLAHABAD HIGH COURT
Seeking grant of regular bail - on being enlarged on interim bail, the applicant filed regular bail application under Section 439 Cr.P.C. - learned A.S.G.I. in rebuttal submits that the statement of P.W.-3 cannot be relied upon; P.W.-3 was summoned only to verify the hotel guest register; he further submits that P.W.-3 could not tell the exact date of C.B.I. raid - HELD THAT:- Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant- Ranveer Singh @ Ranbir Singh involved in 120B I.P.C. and Section 7, 7A & 8 of the Prevention of Corruption Act, 1988, be released on bail on his furnishing a personal bond of Rs. One lac with two sureties (one should be of his family members) each in the like amount to the satisfaction of the court concerned with the following conditions imposed.
Application allowed.
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2020 (10) TMI 1283 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Seeking orders for liquidation of the Company/Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It would appear that despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved with 89.19% voting share in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(1)(a) of the Code.
Therefore, there are no option than to pass an order for liquidation of the Company in the manner laid down in Chapter-III of the Code - Corporate Debtor i.e. Parekh Aluminex shall be liquidated in the manner as laid down in Chapter-III of the Code - application allowed.
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2020 (10) TMI 1282 - DELHI HIGH COURT
Profiteering - validity of order passed by the National Anti-Profiteering Authority - HELD THAT:- This Court directs the petitioner to pay the principal profiteered amount of ₹ 1,04,77,604/- in six equated installments to the flat buyers proportionately, commencing 16th November, 2020. The interest amount directed to be paid as well as the penalty proceedings initiated by the respondents are stayed till further orders.
List on 03rd November, 2020.
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2020 (10) TMI 1281 - SUPREME COURT
Seeking grant of Interim Bail - bail sought on medical grounds for a period of two months while directing listing of the regular Bail Application - HELD THAT:- The report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the Respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to Respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that Respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that Respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to Respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the Respondent on interim bail on medical grounds.
Humane treatment to all including an Accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison.
Even as on date, due medical care is being taken of the Respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable - Appeal allowed.
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2020 (10) TMI 1280 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD
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 - HELD THAT:- In the present matter, this Adjudicating Authority finds the debt and default is admitted by the corporate debtor. Thus it is well established that there is the existence of debt and default on behalf of the corporate debtor - this Adjudicating Authority is of the view that the corporate debtor has acknowledged the debt on 28.04.2016, the letter acknowledgement is annexed as Annexure 22 of the petition as well as the accounts of the corporate debtor was declared NPA on 30.09.2016 and the present petition was filed before this Adjudicating Authority on 11.01.2019, thus it is found well within limitation, within three years from the date of acknowledgment of debt.
This Adjudicating Authority finds that the petitioner succeeded in establishing that there is a debt and existence of default on behalf of corporate debtor and the application is complete in all respect. It is seen that the amount in default is in excess of the minimum threshold limit fixed under IBC - Further, as the date of default is 28.04.2016, it is much prior to the amendment made in Insolvency and Bankruptcy Code on 05th of June, 2020 whereby Sec 10A was inserted, thus the amendment made will not have any effect in the present petition.
This adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent Company - Petition admitted - moratorium declared.
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2020 (10) TMI 1279 - NATIONAL COMPANY LAW TRIBUNAL, INDORE BENCH
Seeking approval of Resolution Plan - Section 31 of the IB Code - HELD THAT:- It is found that the COC has approved the plan with 100% voting in favour of the plan. More so, the Resolution Applicant fulfils the mandatory contents of the Resolution Plan as provided under Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016.
From the object of the IBC, it is amply clear that the “Resolution is Rule and the Liquidation is an Exception”. Liquidation brings the life of a corporate to an end. It destroys organizational capital and renders resources idle till reallocation to alternate uses. Further, it is inequitable as it considers the claims of a set of stakeholders only, if there is any surplus after satisfying the claims of a prior set of stakeholders fully. The IB Code’, therefore, does not allow liquidation of a corporate debtor’ directly. It allows liquidation only on failure of corporate insolvency resolution process’. It rather facilitates and encourages resolution in several ways.
The Adjudicating Authority is of the opinion that not allowing the Clause 19(xv) i.e. Reliefs and Concessions sought by the Resolution Applicants of the Resolution Plan, is not going to make any hindrance for proper implementation of the Resolution Plan as those are the subject matter of the concerned /appropriate Competent Authorities - the Adjudicating Authority, is of the considered opinion and also being satisfied that the Resolution Plan as approved by the Committee of Creditors (CoC) meets the requirements as referred to under section 30(2) of the Code.
Resolution plan approved - application allowed.
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2020 (10) TMI 1278 - GUJARAT HIGH COURT
Imposition of penalty on the partner, when the penalty has been imposed on the firm - Section 130 of the Customs Act, 1962 - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS JAI PRAKASH MOTWANI [2009 (1) TMI 501 - GUJARAT HIGH COURT] where it was held that penalty is imposed on a partnership firm, no separate penalty can be imposed on any of its partners.
Appeal dismissed - decided against Revenue.
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2020 (10) TMI 1277 - NATIONAL COMPANY LAW TRIBUNAL — KOLKATA BENCH
Sanction of scheme of arrangement - section 230(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding, convening and dispensation of various meetings issued - directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (10) TMI 1276 - ITAT BANGALORE
Denying exemption u/s 10 (1) in respect of agricultural income from contract farming - 90% deduction granted by this Tribunal as agricultural income earned by assessee from contract land and issue raised by assessee before Hon’ble High Court was in respect of disallowance of 10% of such income earned from contrace land as business income - HELD THAT:- The issue considered by Ld.CIT(A) for invoking section 151 was never alleged by assessee in first round of appeal, before Ld.CIT(A) or by revenue before this Tribunal. Admitedly, assessee should not have filed appeal before Ld.CIT(A) against Ld.AO’s OGE to order passed by Hon’ble High Court. Entire confusion arose only because of the appeal filed by assessee, before Ld.CIT(A), against OGE passed by Ld.AO to order passed by Hon’ble High Court. In our opinion, assessee suffered for its own fault.
Assessee in appeal filed before us against the impugned order, has not restricted its issue that arises out of the impugned order. We record our strong dismay to such recourse taken by assessee. In our view, Ld.CIT(A) and assessee erred by initiating protracted litigation which is not in accordance with the procedure laid down by the Act.
We do not find any infirmity in taxable income computed by Ld.AO in OGE to Hon’ble High Court on 21/03/2012. We also hold that enhancement by Ld.CIT(A) is invalid as it is on an issue that does not arise out of order passed by Hon’ble High Court. Accordingly Ground2-3 stands allowed.
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2020 (10) TMI 1275 - NATIONAL COMPANY LAW TRIBUNAL — NEW DELHI BENCH—COURT NO. VI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - onus to prove debt - HELD THAT:- There is no dispute that the applicant initially had disbursed the amount interest free to the respondent-company. A perusal of the application is it clear that the loan was given interest free - In order to allow any application under section 7 of the Code, the applicant has to proof that the application is maintainable as the applicant is a "financial creditor", and the debts claimed in the application come within the purview of "financial debt" as defined under the Code.
In the absence of evidence that the amount was disbursed for time value of money, the applicant does not come within the meaning of "financial creditor" - It is well-settled that the onus lies on the applicant to establish that the loan was given against the consideration for time value of money. Onus to prove also lies on the applicant to establish that the debt claimed in the application comes within the purview of "financial debt" and that the applicant is a "financial creditor" in respect of the present claim in question. The applicant has miserably failed to substantiate with supporting documentary evidence that interest, as claimed at Part IV of the application, is payable as per the agreed loan covenants.
Neither the present claim can be termed to be a "financial debt" nor does the applicant come within the meaning of "financial creditor". Once the applicant does not come within the meaning of "financial creditor", he becomes ineligible to file the application under section 7 of the Insolvency and Bankruptcy Code, 2016 - petition stands dismissed as not maintainable.
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2020 (10) TMI 1274 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - levy of penalty u/s 16(2)(d) the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- The Petitioner was entitled to prefer appeal against that order under Section 31 of TNGST Act, within a period of 30 days from the date of its receipt before the Appellate Authority, who has been empowered to condone delay in filing such appeal for an extended period of 30 days, if sufficient cause for not preferring appeal within that period is made out. However, the Petitioner did not prefer any such appeal before the Appellate Authority, but has instead filed this Writ Petition, challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order.
The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Petition dismissed.
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2020 (10) TMI 1273 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking direction to Adjudicating Authority to decide the fee and cost of the ‘Corporate Insolvency Resolution Process’ as incurred by the ‘Resolution Professional’ - HELD THAT:- The learned Adjudicating Authority has dismissed the application in regard to further costs claimed by the Appellant – Registered Valuer on the ground that such application is not maintainable and lacks merit. It has been observed in the impugned order that ₹ 50,000/- was paid to each of the Valuers which included the Appellant/ Applicant - Therefore, notwithstanding the fact that the observation as regards jurisdiction of Adjudicating Authority is unsupportable, the impugned order cannot be interfered with as the application before the Adjudicating Authority lacks merit.
Appeal dismissed.
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2020 (10) TMI 1272 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Proposal to change the designation of Applicant from the Managing Director to Non-Executive Director in the proposed Board meeting - seeking to declare that Applicant No.1 cannot be threatened and/ or cannot be removed as a Managing Director of Respondent No.9 till a final decision is arrived in the Petition.
Whether the Bench has any discretionary power under its fold, even if it wants to exercise, to interfere with the Corporate Governance process of Respondent No.9 (Cotmac Electronics Private Limited) by interfering in the wisdom of the Board of the Company?
HELD THAT:- The appointment of any Director as Chairman or Managing Director is as per the Articles of the Company and the prerogative and the wisdom of the Board of the Company. It also clear that the Bench cannot interfere with the wisdom of the Board in such cases. Therefore, it becomes abundantly clear that this Bench cannot use its discretion for the wisdom of the Board of Respondent No.9. The issue of appointment of Director as Managing Director has to be in line with the Articles of the Company and the wisdom of the Board of the Company.
This Bench places reliance on a similar Judgment given by Hon'ble High Court of Delhi in case of Ranjit Singh vs Sylvania & Laxman Ltd, [1978 (5) TMI 131 - DELHI HIGH COURT] where the Hon’ble Delhi High Court has observed that the holding of a meeting is only the first stage in the matter and the result of such a meeting is quite different from restraining the removal of the Managing Director. If a meeting is held and action taken at that meeting to remove the Managing Director or Joint Managing Director, then only can it be said that the action is either wrongful or contrary to contract which would led to damages or it can be said that such action is ultra vires leading to the Court's decision that the removal is nonest. Before such removal actually takes place, there is no occasion for the grant of an interim injunction.
The above Judgment of High Court clearly again substantiates the view of the Bench that even if there is going to be change of designation of a Managing Director to Non-Executive Director as per proposed Agenda of the Board meeting of the Respondent no. 9, there is no occasion for the grant of an interim injunction. This Bench feels that it has no business to interfere in the Corporate Governance matter which is entirely in the purview of Articles of Associations and Board of the Company.
Application dismissed.
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2020 (10) TMI 1271 - GAUHATI HIGH COURT
Cancellation of registration of petitioner - error had occurred while filing the return online on the GST portal - HELD THAT:- Since the learned standing counsel appears on behalf of respondent, no formal issue need be issued but sufficient copies of the writ petition be furnished to the standing counsel.
Notice on respondent nos. 1 and 3 be sent by registered-post within one(1) week from today. Till the returnable date, the cancellation of registration vide order dated 31.11.2019 is stayed.
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2020 (10) TMI 1270 - ALLAHABAD HIGH COURT
Seeking direction to issue Electric Discharge Certificate - Sabka Vishwas Dispute Resolution Scheme - HELD THAT:- Liberty granted to the petitioner to move a representation before the respondent no. 2 enclosing copy of the judgment in MESSRS SYNPOL PRODUCTS PVT. LTD. VERSUS UNION OF INDIA [2020 (9) TMI 257 - GUJARAT HIGH COURT] and other relevant documents within a period of ten days from today. In case, the petitioner moves a representation, the same shall be considered by the respondent no. 2 and proper order may be passed thereafter after hearing the petitioner within two weeks.
Put up this case as a fresh case on 19.11.2020.
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2020 (10) TMI 1269 - NATIONAL COMPANY LAW TRIBUNAL AHMEĐABAD BENCH
Seeking direction to Respondents to pay the outstanding professional fees and expenses incurred and paid by erstwhile IRP - Seeking direction to Respondents to pay the outstanding professional fees of PCS - Seeking direction to Respondents to pay the outstanding professional fees to counsel of the IRP-CA - HELD THAT:- Admittedly, the Applicant is seeking direction upon the Respondent to pay professional fee of third party namely, Mr. Jignesh Shah, CS and Mr. Hiten Parekh, CA, who are neither the Applicant nor authorised to seek direction from the Adjudicating Authority to pay the professional fee. Under such circumstances, the application is had in the eye of law. Further, it is also a matter of record that ₹ 4,19,719/- is paid as Insurance Premium without the approval of COC, though the Applicant has enough time in his hand and now at this belated stage agitating the issue when the Resolution Plan is already approved by this Adjudicating Authority.
Under such circumstances, when the COC has already been dissolved and RP has also been discharged from his duties, the claim so made by the Applicant is not maintainable - Application not maintainable and is dismissed.
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2020 (10) TMI 1268 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Intermediary or not - Overseas Commission Agent - section 2(13) of the IGST Act, 2017 - services received by applicant from the Overseas Commission Agent - import of services or not - requirement to pay GST on RCM basis under section 5(3) of the IGST Act, 2017 on commission paid to the Overseas Commission Agent or not - HELD THAT:- Any person who enables the supply of goods/services between two persons, is considered as intermediary. However, where a person is providing services or supplies goods on his own account to his customers, it cannot be termed as an intermediary. As per the agreement dated 31.03.2019, Mr. Bobby Kapoor has to arrange or facilitate the supply of goods of the applicant to international market and in return he shall get the commission on agreed terms - the services received by applicant from the Overseas Commission Agent falls within the meaning of the term 'import of services' as provided under section 2(11) of the IGST Act, 2017.
Import of services - HELD THAT:- The section 13 of the IGST Act, 2017 specifically deals with place of supply of a service as to whether a service can be termed as import of service or otherwise. On perusal of section 13 of the IGST Act, 2017, we find that the section 13(8) (b) of IGST Act, 2017 is relevant to the issue in hand which provides that the place of supply for the intermediary services would be the location of the supplier of such services (i.e. location of intermediary service provider). Thus the condition (iii) is not satisfied as the place of supply of service is not in India.
Levy of GST on RCM basis under section 5(3) of the IGST Act, 2017 - commission paid to the Overseas Commission Agent - HELD THAT:- The said section deals with levy and collection of tax i.e IGST and section 5(3) of the IGST Act, 2017 provides that the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.
The 'import of services' shall be treated as inter-state supply of services and the same is chargeable to IGST under reverse charge i.e service recipient located within Indian territory has to pay the tax. Since the transaction is related to an intermediary service which is out of the ambit of 'import of services' as discussed in foregoing paras, accordingly we observe that GST under reverse charge is not payable on the same.
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2020 (10) TMI 1267 - MADRAS HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection of the scheme on the ground that the petitioner was not eligible to apply under the scheme - Section 125(1)(e) of the Finance(No.2) Act, 2019 - HELD THAT:- There are two provisions, namely, Section 128 of the Finance (No.2) Act, 2019 and Rule 6(6) of the Scheme Rules that enable the designated committee to modify its order after issuance of statement under Section 127 of the Act.
The designated authority can revisit the issue after issuance of Form SVLDRS-3 only in the circumstances set out in Section 128 r/w.Rule 6(6). If during the verification process contemplated by Rule 6, if the designated committee finds that the applicant is not eligible to make a declaration under Section 125 of the Act, the declaration ought to be returned or rejected at that stage itself. Having moved to the next stage, the designated committee cannot retrace its steps. The designated committee is a creature of statute. It came into existence by virtue of the provisions of Chapter V of the Finance (No.2) Act, 2019. If the impugned order is sustained, it would mean that the designated committee has been conferred with absolute power of review, when what has been conferred is only limited power of review, namely, the power to correct the arithmetical or clerical error. It cannot revisit the issue on merits, having once made the determination under Section 127(4) of the Finance (No.2) Act, 2019 r/w. Rule 6 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019.
Thus, the designated committee did not have the jurisdiction to issue the impugned order - first respondent is directed to issue Discharge Certificate as sought for within a period of thirty days from the date of receipt of a copy of this order - petition allowed.
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2020 (10) TMI 1266 - PUNJAB AND HARYANA HIGH COURT
Quashing of the complaint u/s 276-B, 276-C and 277 read with Section 417 of IPC, 1860 in Financial Year 2016- 17 - attempt to approach the Settlement Commissioner to pay the tax as per the disclosure made by them - HELD THAT:- When we have gone through the pleadings it is observed that the grounds urged by the petitioners in contending that when the petitioner has approached settlement commissioner to resolve the matter regarding payment of tax on escaped income, question of initiating proceedings by filing complaint does not arise is not acceptable in the light of judgment [1993 (4) TMI 50 - PUNJAB AND HARYANA HIGH COURT] as contended by the counsel for the respondent.
We find that the question of entertaining this writ petition either to quash the complaint registered against the petitioners dated 02.04.2019 vide Annexure P-1 or to interefere with the same at this juncture in any manner does not arise.
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