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Showing 141 to 160 of 1385 Records
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2020 (10) TMI 1245 - ITAT CHENNAI
Disallowance u/s 14A r.w.r. 8D - Assessee submitted that interest expenditure incurred by the assessee should not have been disallowed under section 14A r.w. Rule 8D since no part of the borrowed funds were used by the assessee for making investments and prayed for deleting the disallowance of expenditure - HELD THAT:- AO mentioned in the assessment order that the assessee made a submission that the assessee is having capital account balance of ₹ 6,25,90,602/-, but the Assessing Officer has not appreciated the said facts and nothing was discussed in his order. Thus, we set aside the orders of the authorities below and remit the matter back to the file of the Assessing Officer with the direction that he shall examine the balance sheet of the assessee and ascertain as to whether as on the date of investment, the assessee has sufficient own funds or not.
If the assessee is having own funds as on the date of investment, then the assessee is entitled to claim exemption and there is no need of disallowance under section 14A of the Act r.w. Rule 8D(2)(ii).
Disallowance under Rule 8D(2)(iii) - Assessing Officer is directed to consider only those investments for computing average value of investment which yielded exempt income during the year under consideration as per Rule 8D(2)(iii) in view of the Delhi Special Bench of the Tribunal in the case of ACIT v. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] and to pass detailed order on both counts. Accordingly, the ground raised by the assessee is allowed for statistical purposes.
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2020 (10) TMI 1244 - SUPREME COURT
Grant of Default Bail - time limitation - application for grant of default bail is made on expiry of the period of 90 days - Section 167(2) of Indian Penal Code - HELD THAT:- On the facts of the present case, the High Court was wholly incorrect in stating that once the challan was presented by the prosecution on 25.03.2019 as an application was filed by the Appellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates all wrong. The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). The fact that the Appellant filed yet another application for default bail on 08.04.2019, would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. We must not forget that we are dealing with the personal liberty of an Accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law Under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an Accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.
The Appellant will now be entitled to be released on "default bail" Under Section 167(2) of the Code, as amended by Section 43-D of the UAPA - Appeal allowed.
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2020 (10) TMI 1243 - CALCUTTA HIGH COURT
Testamentary suit for grant of probate of the alleged last will - submission is that the APLC can only decide upon and regulate the voting power within the limit of the voting rights as regards the shares which are referable to the estate of the testatrix enlisted in the affidavit of assets - HELD THAT:- It is well settled that the position of Administrator pendente lite (APL) in terms of Section 247 of the Succession Act is that the APL represents the estate of the deceased for all purposes, except distribution of the estate. APL shall be subject to the immediate control of the probate Court and shall act under its direction. Except to the limit it is circumscribed by the last limb of Section 247, the control of the Court over the APL and the extent of its authority to issue directions to the APL spreads through the scope and extent of the statutory purpose for which APL can be appointed in terms of Section 247.
It is fundamental that the eligibility of a share-holder; either if it is only one share or bulk of shares and stocks; the voting rights and the involvement in the company on the strength of the shares would stand regulated, primarily by Sections 47 and 88 of the Companies Act - The power of the Probate Court under Section 247 of the Succession Act necessarily includes the power to regulate and permit such shares which are in the domain of commercial activity to be utilised to generate appropriate income and to better utilise the same in the best interest of the affairs of the estate of PDB, which would ultimately reflect on the end beneficiaries, which also includes charitable trust, educational institutions and other such activities.
The prayer for ad interim stay of the judgement and order impugned dated September 18, 2020 is declined.
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2020 (10) TMI 1242 - GUJARAT HIGH COURT
Permission for withdrawal of application - applicant requests to permit the applicant to withdraw this application with a liberty to approach this Court if investigation is not completed within a period of three months - HELD THAT:- Permission, as sought for; stands granted.
Application stands disposed of as withdrawn.
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2020 (10) TMI 1241 - MADRAS HIGH COURT
Maintainability of petition - challenge against assessment order - Petitioner was entitled to prefer appeal against that order, but the Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. In this context, it has to be recapitulated here that the Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute.
This Court does not express any view on the correctness or otherwise on the merits of the controversy involved in the matter - Petition dismissed.
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2020 (10) TMI 1240 - ITAT MUMBAI
TP Adjustment - arm's length price of finished goods exported to the AE - MAM selection - export of finished goods to the AEs, the Transfer Pricing Officer noticed that the assessee had benchmarked such transaction by using Transactional Net Margin Method (TNMM) on aggregate basis - TPO did not accept the contention of the assessee and proceeded to benchmark the transaction by applying CUP method - Assessee submitted by the assessee that CUP cannot be treated as the most appropriate method considering the different economic and geographical condition between the AES and the non-AEs - whether the domestic sales can be applied as CUP for determining the arm's length price of export sales? - HELD THAT:- It is fairly well settled, CUP method requires strict comparability. It cannot be denied that the pricing of a product varies on the basis of geographical location. Thus, primarily, the price of products sold in domestic market cannot be compared with the price of the product sold in foreign country due to various factors. Therefore, if the Transfer Pricing Officer selects CUP as the most appropriate method to benchmark the transaction, it is his duty to find out and bring on record price charged for uncontrolled transactions carried out under similar circumstances. If, suitable comparable uncontrolled transaction is unavailable, CUP method cannot be applied.
As further noticed, during the year under consideration assessee had sold 34 different products to both overseas AES as welt as domestic unrelated parties. Out of the 34 products sold, Transfer Pricing Officer has accepted the price of 16 products sold to AES to be at arm's length, since, the price charged to AES is more than the price charged to non-AEs. In case of 18 products only She Transfer Pricing Officer has made adjustment as the price charged to AES is less than the price charged to non-AEs. Thus, it appears, the Transfer Pricing Officer has adopted a very selective approach while applying CUP.
Transfer Pricing Officer has only allowed volume adjustment on purely ad-hoc basis, that too, only in respect of a single product while ignoring various other products wherein volume difference between AE and non-AE transaction is substantial. Similarly, assessee's contention that the price of products insofar as sales made to the AE and non-AE would vary due to timing difference has not been properly considered. The various adjustments which are required to be made have been demonstrated before us by the learned counsel for the assessee by furnishing charts. In our view, all these factors have to be taken into consideration, even, while applying CUP method. One more submission of the assessee is that the DRP has allowed adjustment on account of marketing/allied cost. However, while computing such adjustment, the Assessing Officer has not taken note of marketing personnel cost. We find substantial merit in the aforesaid submission of the learned Counsel that matter needs to be restored to the Assessing Officer for examining afresh -These grounds are allowed for statistical purposes.
Adjustment made on account of payment made towards intra-group service - assessee has paid an amount towards marketing, administrative and logistic service and for availing information technology service - HELD THAT:- The Transfer Pricing Officer has simply proceeded to benchmark the transaction on a purely ad-hoc/estimate basis without following any one of the methods prescribed under section 92C of the Act. It is patent and obvious from the order passed by the Transfer Pricing Officer that he has not determined the arm's length price by applying either CUP or any other approved method. Had the benchmarking been done under CUP method, the Transfer Pricing Officer should have brought on record at least a few comparable uncontrolled transactions to demonstrate that the payment made by the assessee towards intra- group services is not at arm's length. Whereas, the Transfer Pricing Officer has not brought on record even a single comparable uncontrolled transaction to demonstrate that the price charged by the assessee is not at arm's length. on the contrary, it is tell-tale from the order of the Transfer Pricing Officer that he has proceeded to benchmark the transaction purely on estimate basis by applying man- hour salary rate of a single employee in case of marketing, administrative and logistic services. Similar is Vie situation in case of IT services, wherein, the Transfer Pricing Officer has estimated the arm's length price at 30% of the amount paid.
The aforesaid method of estimating the arm's length price is not in terms with the provisions contained under section 92C r/w rule 10B, hence, opposed to law. Transfer Pricing Officer has simply estimated the arm's length price of the transaction on estimate basis without applying any one of the approved methods. This cannot be accepted. There is umpteenth number of judicial precedents, wherein, it has been held that determination of arm's length price has to be done by applying any one of the methods prescribed under section 92C r/w rule 10B.
Thus adjustment made by the Transfer Pricing Officer to the arm's length price of payment made towards Intra-group services is unsustainable. In view of the aforesaid, we have no hesitation in deleting the addition made by the Assessing Officer on account of the aforesaid adjustment. Grounds are allowed.
Levy of interest under section 234A - As per assessee since the return of income was filed within the time prescribed under section 139(1) of the Act there is no question of levy of interest under the aforesaid provision - HELD THAT:- We direct the Assessing Officer to verify the facts and if it is found that the return of income for the impugned assessment year was filed within the time allowed under section 139(1) of the Act, no interest under section 234A of the Act can be le vied. This ground is allowed for statistical purposes.
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2020 (10) TMI 1239 - KARNATAKA HIGH COURT
Permission for withdrawal of petition - writ petition filed as a public interest litigation at the instance of the petitioner - HELD THAT:- The petition is disposed of as unconditionally withdrawn. However, we make it clear that we have made no adjudication on the issues raised on the merits of the petition. All the pending applications do not survive for consideration and are accordingly disposed of.
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2020 (10) TMI 1238 - ITAT DELHI
Undisclosed income on account of interest income earned on undisclosed foreign bank account deposits u/s 69 - CIT-A deleted the addition - HELD THAT:- As decided in own case [2018 (2) TMI 1363 - ITAT DELHI] addition on account of investment in the bank account itself was deleted. As the quantum addition itself has been deleted by the coordinate bench with respect to balance in the foreign bank account, there is no question of making an addition on account of the notional interest on that balance.
When the assessee is not found to be owner of any bank account, till now, there is no reason to uphold the interest on such bank balances. If the assessee is not owner of the amount lying in the bank account, naturally the interest income cannot be added in the hands of the assessee. Even otherwise if the revenue gets any information with respect to the ownership of the money lying in the bank account with HSBC bank Geneva, then the provisions of explanation 2 (d) of Section 148 applies and the interest income can be added in the hands of the assessee. The time limit available with the revenue according to the provisions of Section 149 (1) (C) is up to 16 years. Therefore, we do not find any infirmity in the order of the learned CIT – A, at present, in deleting the addition on account of interest in the hands of the assessee for this year with respect to the alleged the holding of bank balance in the HSBC bank Geneva account, as the addition on the quantum itself has been deleted.
0n reading of the grounds of appeal of the learned assessing officer the only prayer is that when the addition has not reached finality the learned CIT – A should have upheld the addition protectively in the hands of the assessee. We could not find any provision in the act wherein the learned CIT – A could have done so. Even otherwise now there is an extended time limit available to the revenue, it may take recourse to the Section if the conditions permit. Accordingly the solitary ground of appeal of revenue dismissed.
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2020 (10) TMI 1237 - ITAT DELHI
Disallowance of expenditure not exclusively for business - remuneration received from partnership firm - HELD THAT:- We find that there is no reason that the expenditure cannot be allowed to a partner whose income is taxed on account of remuneration and interest received from the firm u/s 28(v) of the Act as business income. The only criteria for allowance of the expenditure are that expenditure should have been incurred by the assessee wholly and exclusively for the purpose of the business.
In the present case the assessee has given details of expenditure such as salary expenditure of driver, communication expenditure, insurance and depreciation on the vehicle. Out of the above expenditure the assessee himself has disallowed part of personal expenditure and disallowance u/s 14A of the Act. The lower authorities could not say that in all these expenditure has not been incurred by the assessee wholly and exclusively for the purpose of his business.
The allegation of the ld AO was that the expenses incurred by the assessee does not have any nexus with remuneration earned does not have any legal backing. He does not say that these expenditure are not incurred by the assessee for the purpose of the business. Naturally when the income is taxed as remuneration from firm as business income, any expenditure incurred to earn that income is an allowable business expenditure, if it satisfy the relevant criteria. It is not the case of the lower authorities that whole of the expenses incurred by the assessee were not incurred wholly and exclusively for the purposes of the business i.e. to earn remuneration from partnership firm. Therefore, disallowance made by the ld AO and confirmed by the ld CIT(A) cannot be sustained. In view of the fact that the assessee himself has disallowed personal expenditure and u/s 14 A - we direct the ld AO to delete the disallowance of expenditure - Decided in favour of assessee.
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2020 (10) TMI 1236 - SC ORDER
Classification of goods - Trapezoidal shaped pre-painted GI roof profiles - to classified under CTH 73089090 or under CTH 7216 - it was held by CESTAT that product in question should appropriately be classifiable under CTH 72169100 - HELD THAT:- Issue notice in the appeal as also in the application for condonation of delay.
To be tagged along with C.A. No.303/2020 and other connected matters.
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2020 (10) TMI 1235 - MADRAS HIGH COURT
Maintainability of appeal - Petitioner did not prefer any 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 - Rejection of application for revision of liability of tax - HELD THAT:- 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.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - petition dismissed.
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2020 (10) TMI 1234 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Approval of the Resolution Plan - RP states that the Resolution Plan of M/s. Amit Metaliks Limited, was approved by the Committee of Creditors with 95.35% voting shares and sought for approval of the Resolution Plan of M/s. VSP Udyog Private Limited - Section 30(6), read with Section 31 of the Insolvency and Bankruptcy Code, 2016, along with Regulation 39(4) of the Insolvency u& Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- On perusal of the Plan, it is understood that the assets of the Corporate Debtor are going to rest in a safer hand. The RP, Mr. Rajesh Singhania, deserves special appreciation for finding out a Resolution Applicant, whose Plan has been approved by the Committee of Creditors by 95.35% voting share, even in these difficult times of pandemic, due to COVID-19. All the provisions of mandatory requirements are seen complied with by the Resolution Applicant, as per Form H, submitted by the RP. It makes provision for the payment of the Insolvency Resolution Process, payment of the debts of Operational Creditors, Management of the affairs of the Corporate Debtor, and also provision for implementation and supervision of the Resolution Plan. It also provides terms of the Plan and its implementation schedule. So it is a feasible and viable Plan. A judicious distribution of the financial bids by the COC to the stakeholders according to their entitlements can be inferred from the Plan under consideration.
The COC has very well deliberated with the Plans received by it and decided the viability, feasibility and financial matrix of each Plan and approved one with 95.35% vote shares of the members of the Committee of Creditors.
The Resolution Plan of M/s. Amit Metaliks Limited, which is approved by the Committee of Creditors with 95.35% voting shares, is hereby approved under provisions of sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016, which shall be binding on the Corporate Debtor, M/s.VSP Udyog Private Limited, its employees, members, creditors, guarantors, the Central Government, any State Government or any local authority and other stakeholders involved in the Resolution Plan - Petition allowed.
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2020 (10) TMI 1233 - MADRAS HIGH COURT
Maintainability of appeal - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this 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 - HELD THAT:- The Hon'ble Supreme Court of India in Assistant Commissioner (CT) LTU, Kakinada -vs- 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. Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2020 (10) TMI 1232 - ITAT CHENNAI
Stay of demand - Recovery proceedings - extension of interim stay - HELD THAT:- In this case, the interim order was passed on 25.02.2020 and thereafter it was extended on 17.03.2020. Thereafter, the Bench did not function. The assessee did not file any document establishing financial difficulties. However, the ld. Counsel for the assessee pleaded that due to pandemic, the assessee is unable to run the business and faced difficulties to pay the outstanding demand. Considering the present pandemic situation, we fix the appeal for hearing on 07.12.2020 with a direction to the assessee as well as the Department to cooperate for concluding the final hearing of the appeal. We further direct that the Department not to take any coercive steps to recover the outstanding demand till next date of hearing i.e. 07.12.2020.
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2020 (10) TMI 1231 - SUPREME COURT
Condonation of delay of 663 days in filing appeal - delay due to unavailability of the documents and the process of arranging the documents - the issue raised is that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence - HELD THAT:- A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement - It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
Looking to the period of delay and the casual manner in which the application has been worded, it is considered appropriate to impose costs on the Petitioner-State of ₹ 25,000/- to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time - SLP dismissed.
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2020 (10) TMI 1230 - SUPREME COURT
Removal of appellant form CoC - appellants submits that relying on the judgment of the National Company Law Appellate Tribunal NCLAT in SH. SUSHIL ANSAL VERSUS ASHOK TRIPATHI, SAURABH TRIPATHI, MR. AMARPAL RESOLUTION PROFESSIONAL, M/S. ANSAL PROPERTIES AND INFRASTRUCTURE LTD. [2020 (8) TMI 396 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI], the appellants have been removed from the Committee of Creditors - HELD THAT:- Issue notice, including to the newly added respondent, returnable in four weeks.
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2020 (10) TMI 1229 - MADRAS HIGH COURT
Rejection of revision under Section 35 EE of the Central Excise Act, 1944 - Jurisdiction - power of Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In- Appeal - HELD THAT:- The matter is remitted to the present Revisional Authority under Section 35 EE of the Act for fresh consideration of the matter. It shall be incumbent upon the Revisional Authority, after affording full opportunity of hearing to the Petitioner, deal with each of the contentions raised and pass reasoned orders on merits and in accordance with law, inhibited and uninfluenced by the impugned order which has been set aside and communicate the decision taken to the Petitioner by 31.03.2021 under written acknowledgment.
Petition allowed by way of remand.
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2020 (10) TMI 1228 - HIGH COURT OF KARNATAKA
Winding up proceedings of Mutual fund scheme - objections to the e-voting results - Need for approval of unit-holders - validity of Regulations 39 to 40 of the Mutual Funds Regulations - majority of unit-holders on the happening of any event which in the opinion of the Trustees requires a Scheme to be wound up - duties of the Trustees under the Mutual Funds Regulations - obligation of the Trustees or Trustee Company - role of SEBI - issuance of direction to SEBI - HELD THAT:- We hold that Regulations 39 to 40 of the Mutual Funds Regulations are valid.When the Board of Directors of a Trustee company, by majority, decides to wind up a Scheme by taking recourse to sub-clause (a) of clause (2) of Regulation 39, the Trustee company is bound by its statutory obligation under sub-clause (c) of clause (15) of Regulation 18 of obtaining consent of the unit-holders of the Scheme. The consent of unit-holders will be by a simple majority. In view of the obligation of the Trustees under sub-clause (c) of clause (15) of Regulation 18, a notice as required by clause (3) of Regulation 39 can be issued and published only after making compliance with the requirement of obtaining consent of the Unit-holders.
Clause 15A of Regulation 18 of the Mutual Funds Regulations 1996 operates in a different field which has nothing to do with the process of winding up of a Scheme. Therefore, compliance with Clause 15A of Regulation 18 is not a condition precedent for winding up of a Scheme pursuant to sub-clause (a) of clause (2) of Regulation 39.
Considering the duties of the Trustees under the Mutual Funds Regulations, they perform a public duty. Therefore, when it is found that the Trustees have violated the provisions of the SEBI Act or Mutual Funds Regulations, a Writ Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can always issue a writ of mandamus, requiring the Trustees to abide by the mandatory provisions of the SEBI Act or the Mutual Funds Regulations.
In the facts of the case, for the reasons which we have recorded earlier, no interference can be made with the decision of the Trustees dated 23rd April 2020 of winding up of the said Schemes. However, the decision can be implemented only after obtaining the consent of unit-holders as required by sub-clause (c) of clause 15 of Regulation 18.
On compliance being made with sub-clauses (a) and (b) of clause (3) of Regulation 39, Regulation 40 triggers in and therefore, AMC or Trustees have no right to continue the business activities of the Schemes which will include borrowings. Similarly, from the date of publication of the notice in accordance with sub-clause (b) clause (3) of Regulation 39, AMC is disentitled to honour the redemption requests made earlier.
The copy of the Forensic Audit report produced in a sealed cover, does not contain final findings and it is specifically mentioned therein that after taking the views/responses of SEBI, AMC and Trustee company, some of the conclusions in the report may undergo a change. Hence, the said report can at best be termed as a tentative report. Hence, the same is not relevant for deciding these petitions. As the said document is not relevant, it is not necessary for this Court to go into the legality of the claim for privilege.
After receiving the final findings/report of the Forensic Auditors, SEBI is bound to consider of initiating an action as contemplated by Regulation 65, depending upon the findings recorded therein. It is the obligation of the Trustees or Trustee Company to provide copies of the minutes of the meeting held on 20th and 23rd April 2020 to the Unit-holders and no confidentiality can be attached to the said minutes of the meetings - In exercise of the powers under Section 11B of the SEBI Act, SEBI has no jurisdiction to interfere with the decision of winding up of a Scheme made by taking recourse to Regulation 39(2)(a).
ORDER:-
i) We hold that no interference is called for in the decision of the Trustees taken on 23rd April 2020 of winding up the said six Schemes;
ii) We hold and declare that the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18. Hence, we restrain the Trustees from taking any further steps on the basis of the impugned notices dated 23rd April 2020 and 28th May 2020, till consent of the unit-holders by a simple majority to the decision of winding up is obtained by the Trustees in accordance with sub-clause (c) of Clause (15) of Regulation 18 of the Mutual Funds Regulations;
iii) It will be open for the Trustees to obtain consent of the unit-holders as provided in sub-clause (c) of clause (15) of Regulation 18 and to take further steps in accordance with clause (3) of Regulation 39 of the Mutual Funds Regulations;
iv) We hold that Regulations 39 to 41 of the Mutual Funds Regulations are legal and valid;
v) We direct the Securities and Exchange Board of India to ensure that the Forensic Auditors submits their report in accordance with Regulation 64 at the earliest. After the report is submitted by the Forensic Auditor, the Securities and Exchange Board of India or its Chairman shall examine the report and shall take a decision on the question of taking action as provided in Regulation 65 of the Mutual Funds Regulations and under SEBI Act. The decision shall be taken within six weeks from the date of the receipt of the Forensic Audit Report;
vi) We direct the Trustees to provide true copies of the Board Resolutions placed on record in sealed cover to unit-holders of the said six Schemes as and when they apply for providing copies thereof;
vii) We hold that the unit-holders are not entitled to receive a copy of the Forensic Audit Report filed on record in a sealed cover;
viii) No other relief is required to be granted in these writ petitions.
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2020 (10) TMI 1227 - MADRAS HIGH COURT
Maintainability of petition - Petitioner did not prefer any appeal (inspite of being available) before that Revisional Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. In this context, it must be recapitulated here that the Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction and held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters.
This Court does not express any view on the correctness or otherwise on the merits of the factual controversies involved in the matter - Petition dismissed.
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2020 (10) TMI 1226 - MADRAS HIGH COURT
Principles of Natural Justice - non-service of impugned order - case of petitioner is that it was only when coercive recovery proceedings were initiated on 26.09.2019 that he came to be aware of the passing of the assessment order - TNVAT Act - HELD THAT:- The records were called for to ascertain the veracity or otherwise of the above submission. Compilation dated 08.09.2020 contains a copy of a statement recorded at the time of inspection dated 20.10.2014 as document No.1. This reveals that the petitioner as well as his father, J.Tezoram, were in the premises during the visit. Pre-assessment notice dated 11.06.2015 appears to have been received on the same day by an individual who has signed and affixed the seal of the petitioner entity. However it is unclear as to who the person is who has received the notice - Order of assessment dated 10.09.2015 has been returned as ‘refused’ and postal cover with the aforesaid endorsement is available. The order of assessment has been served to two different addresses, and while the first order has been returned as ‘refused’, the second has been returned as ‘left’. Both acknowledgments have been placed at pages-15 and 21 of the compilation. Service is thus complete.
In view of the petitioners’ insistence that the entity is not presently functioning, revenue was directed to make a visit of the premises and file a report. An e-mail dated 07.10.2020 from the Assistant Commissioner (ST), N.S.C. Bose Road, Assessment Circle annexing photographs of the functioning entity has been received and placed on record evidencing that the assessee/petitioner entity is carrying on the same business as before from the same address and location.
There are no justification whatsoever to entertain this writ petition as the delay between 2015 and today stands unexplained. In fact, the explanation of the petitioner in regard to the delay is found to be factually incorrect - petition dismissed.
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