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Showing 41 to 60 of 835 Records
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2020 (7) TMI 796 - CHHATTISGARH HIGH COURT
Seeking grant of anticipatory bail - shortage of Coal - offence punishable under Sections 120-B & 409 of the Indian Penal Code and Sections 13 (2) read with Section 13 (1)(c) & 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- Considering the entire facts situation of the case and particularly for the reason that the Investigating Officer does not need custodial interrogation of the applicants and, in fact, the applicants were never arrested during the period of four years when the investigation continued, this Court is inclined to release the applicants on anticipatory bail.
Both the applications are allowed and it is directed that in the event of arrest of the applicants, they shall be released on anticipatory bail on each of them executing a personal bond for a sum of ₹ 50,000/- with one surety in the like sum to the satisfaction of the arresting officer with the conditions imposed - decided in favor of applicant.
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2020 (7) TMI 795 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- The ledger shows that ₹ 30,00,000/- was given as loan to the corporate debtor, hence the contention that it is advance towards commission is falsified. It is to be noted that for another sum of ₹ 10,00,000/-paid as commission advance on the same day, TDS of ₹ 1,00,000 is deducted, whereas ₹ 30,00,000 has been accounted as loan and no TDS has been deducted. Had it been an advance commission as contended by the petitioner, TDS of ₹ 4,00,000 would have been deducted. Hence the amount of ₹ 30 lacs paid is clearly a loan as depicted in the ledger. Hence the contention of the petitioner that ₹ 30,00,000/- is an advance towards commission payable to the corporate debtor is falsified.
When the amount paid is a loan, the same does not fall under the definition of the Operational debt as provided under Section 5 (21) of the code which provides that “operational debt” means a claim in respect of provision of goods or services including employment or debt in respect of the payment of dues arising under any law for the time being enforce and payable to the central government, any state government or any local authority” - the amount claimed is not an operational debt and the petition is not maintainable.
Since the corporate debtor submitted that this payment of ₹ 30,00,000/- is towards part satisfaction of the Memorandum of Understanding (MoU) dated 24/08/2013, both in this proceedings, which was initiated well before the present petition, there is a pre-existing dispute in respect of the claim and hence the dispute raised by the Corporate debtor will squarely fall under the definition of dispute as defined under Section 5 (6) of the code which provides that “dispute”, includes a suit or arbitration proceedings relating to (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty.”
Petition dismissed.
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2020 (7) TMI 794 - SUPREME COURT
Malicious prosecution of sexual abuses - Sweeping generalisations and superficial analysis - Failure to refute Section 313 Code of Criminal Procedure statement - Shoddy investigation and prosecution - Charge of Criminal Intimidation.
Sweeping generalisations and superficial analysis - HELD THAT:- It is found from the impugned orders that the Courts below failed in making the desired attempt to delve deep into the factual matrix of this case. Many aspects have completely been ignored or only dealt with hastily. Further, the reasoning is generic and is premised upon generalisations which may not be necessarily true always. It is indisputable that parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such cliches ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the Accused.
It is beyond comprehension that the prosecutrix's father and his two male associates failed to stop the tenant boy who was allegedly about to commit a sexual offence with the minor victim and neither did they later make any attempt to even register a complaint against him - the father of the prosecutrix merely registered his protest to the Appellant on the scene, instead of reacting instinctively and approaching police authorities when faced with possible trafficking of his daughter. This conduct of belatedly proceeding against only the prosecutrix creates a lurking suspicion against the prosecution case and it may not be totally improbable to infer that it was a malicious attempt at the behest of Bhola Singh to falsely implicate a weak rape victim and stifle her ability to seek justice.
Shoddy investigation and prosecution - HELD THAT:- The trial Court has summarily disregarded the contradictions highlighted by the defense side, on the premise that such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix. The High Court too has opined that PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable. These reasons are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials. There are numerous clear contradictions between the testimonies of these two star-witnesses, which we find fatal to the prosecution case - In addition to these inconsistencies which cast a serious shadow of doubt over the version of events put forth by the prosecution, the accounts of PW-1 and PW-2 are superficial and lack detail. Important links of the story, including what happened in the crucial five minutes when the girl was locked inside the room or how the male tenant reacted, are missing.
Failure to refute Section 313 Code of Criminal Procedure statement - HELD THAT:- In the case at hand, the alternate version given by the Appellant could not be lightly brushed aside. Her two-part defence, put succinctly, was that first there was no male tenant at all and no one except for her child and mother lived with her, and second, that she was being falsely implicated as vengeance for filing a rape complaint against one Bhola Singh with whom the prosecutrix's father used to work - Reliance on mere admission by DW-1 during cross-examination that PW-2 was a government employee, neither negates the defense of false implication nor does it imply that PW-2 couldn't be working with Bhola Singh in a part-time/casual capacity or staying in Bhola Singh's house. Thus, the trial Court's analysis of the Appellant's Section 313 defence ought to have been deeper, before concluding it as being false or untrustworthy.
Charge of Criminal Intimidation - HELD THAT:- Proving the intention of the Appellant to cause alarm or compel doing/abstaining from some act, and not mere utterances of words, is a pre-requisite of successful conviction Under Section 506 of Indian Penal Code. The trial Court has undertaken no such separate analysis or recorded any finding on this count, thus calling into question the conviction for criminal intimidation. Further, the nature of this charge is such that it is a derivative of the main charge of 'procuration of minor girls'. Given the facts of this case where the common testimony of PW-1 on both charges has been doubted, it would be unwise to rely upon it as the sole piece of evidence to convict the Appellant for criminal intimidation without any other corroboration.
In the facts of the present case, neither is Section 366A by itself a sexual offence in the strict sense nor do the inactions of the prosecutrix or her father inspire confidence on genuineness of the prosecution story. No steps were taken to avail of medical examination of the victim, nor was the Panchayat or any social forum approached for any form of redress till the occurrence of the second alleged incident.
The prosecution has failed to discharge its burden of proving the guilt of the Appellant Under Section 366A and 506 of the Indian Penal Code beyond reasonable doubt - the conviction and sentence awarded by the Courts below are set aside - appeal allowed.
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2020 (7) TMI 793 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Levy of GST - freight in the case of indigenous supplies - reverse charge mechanism - inclusion of ocean freight in the case of imports on the CIF value - Double taxation - revenue neutrality - Section 9(3) of the CGST Act, 2017 - HELD THAT:- The applicant is a limited company incorporated under the Companies Act and engaged in the manufacturing and supply of the paper. Hence, the Notification No. 13/2017-CT (Rate) dated 28.06.2017 (as amended) is squarely applicable on them and they are liable to pay the GST on the freight paid, under the reverse charge mechanism.
Revenue neutrality - HELD THAT:- Having no additional financial impact on the applicant. It is observed that as per the mandate provide to the Advance Ruling Authority, under Section 97 of the CGST Act, 2017, the Authority has to decide specific issues, as specified under Section 97(2) of the CGST Act, 2017, on the basis of existing Law/Rules/Notifications/Circulars. The Authority cannot venture outside its purview and give rulings on the issue which are not under its mandate - the matter of double taxation is outside the purview of the Authority.
When the GST has been paid on the ocean freight in the case of imports on the CIF value and the value of the ocean freight is included in the value of the imported goods, whether any further GST liability is there under RCM? - HELD THAT:- The services supplied by the foreign shipping entity of transportation of goods in a vessel to a port in India is an 'inter-state supply' in terms of section 7 of the IGST Act, 2017. Hence, IGST is leviable on the same under Section 5 of the IGST Act. As per the charging section i.e. Section 5, IGST has to be paid by the taxable person - in terms of the Notification No. 10/2017- Integrated Tax (Rate) dated 28.06.2017 (as amended), in the case of import of goods on CIF basis, the applicant is liable to pay GST on the component of Ocean freight paid by the foreign supplier to the shipping company.
In term of Notification No. 13/2017-Central Tax (Rate) dated 28.06.2017 (as amended) the applicant is liable to pay GST under reverse charge mechanism, on the freight paid - The applicant is liable to pay IGST on transportation of goods by vessels under Reverse Charge Mechanism (RCM) under Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017, as amended.
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2020 (7) TMI 792 - ITAT MUMBAI
Estimation of income - bogus purchases - 12.5% disallowance done by the assessing officer - CIT-A enhancing the disallowance to 100% as relying on case of Shoreline Hotels Pvt. Ltd [2018 (9) TMI 1248 - BOMBAY HIGH COURT] - addition in this case has been solely made by the assessing officer on the reasoning that upon enquiry by the sales tax Department it has been found that assessee is beneficiary of bogus purchases from the parties mentioned - HELD THAT:- It is settled law that case law cannot be considered in isolation of the context thereof. This is duly the ratio arising of out of the decision of Sun Engineering Works Pvt. Ltd. [1992 (9) TMI 1 - SUPREME COURT]. In the decision of Shorteline Hotels Pvt. Ltd. [2018 (9) TMI 1248 - BOMBAY HIGH COURT] considered was in context of the order passed by learned CIT(A) under section 263 of the income tax act, wherein the ITAT had upheld the order of the learned CIT, invoking his jurisdiction u/s. 263. The issue was expenditure incurred in the maintenance by a hotel. In contrast the present case is a case where the assessee is a dealer in steel and disallowance has been done by the Assessing Officer on a finding that the assessee has made purchases through grey market.
In our considered opinion by no stretch of imagination it can be said that there is any similarity in the facts upon which the honourable jurisdictional High Court has rendered the above said decision and the facts of the present case.
CIT has observed that assessee was asked to furnish stock register and item to item tally of purchase and sales. She further noted that assessee submitted that no stock register was maintained the purchases to sales cannot be tallied item-wise. We find that this observation of the learned CIT is in direct contrast with the finding of the assessing officer. Assessing officer has found that assessee has duly maintained the stock statement the purchases are duly mentioned therein. Be as it may when learned CIT is giving a finding that assessee has not been able to tally the sales to the purchases and as per the learned CIT the purchases are hundred percent bogus, then the natural corollary was that learned CIT should have rejected the sales as well. Since learned CIT has not done so the observations of the learned CIT do not support the case for 100% disallowance.
In the present case we find that the ratio of the decision in the case of M.Haji Adam & Co.[2019 (2) TMI 1632 - BOMBAY HIGH COURT] is duly applicable. In the said case honourable jurisdictional High Court had expounded that in case of trading concerns the addition on account of bogus purchases should be limited to the difference between the gross profit that is shown by the assessee on normal purchase as against the gross profit shown on bogus purchases.
Accordingly, we remit the issue to the file of the Assessing Officer to make the disallowance in accordance with the ratio of the decision of M.Haji Adam & Co. Appeal by the assessee is partly allowed.
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2020 (7) TMI 791 - ITAT MUMBAI
TP Adjustment - comparable selection - exclusion of ABC Bearings from the list of comparable company - HELD THAT:- ITAT Mumbai Bench in the case of Maersk Global Service Centre India Pvt. Ltd. [2011 (11) TMI 465 - ITAT MUMBAI] has held that the company having such a high brand value along with much higher turnover, in our considered opinion has been rightly excluded by the CIT(A). Undoubtedly, in the said circumstances, the ABC Company nowhere seems comparable with the company of the assessee. Moreover, the ABC had an exceptional year of performance which shows its best ever sale of ₹ 200.27 crores representing 24% of the growth. The said margin seems non comparable in view of the decision of Lubrizol Advanced Material Vs. DCIT [2015 (10) TMI 2692 - ITAT AHMEDABAD] - We also find that the ABC does not feature in the details search undertaken by the assessee on the database Prowess and Capitaline. The TPO nowhere rejecting the selection by assessee and no reason were given for the inclusion of ABC bearing.
We direct the DRP for the exclusion of the ABC Bearing for comparing from the list of comparable and to assess the transaction with the available comparable on record in accordance with law. Accordingly, the issue is decided in favour of the assessee against the revenue.
Working capital adjustment for comparable companies on the basis of the difference - Assessee has raised the TNMM method in determining the ALP for the international transaction entered into during the year - HELD THAT:- We direct them to allow the requisite adjustment on account of the impugned 'working capital' while determining the Arm's Length operating Margin of the Comparables." Accordingly, this issue is decided in favour of the assessee against the revenue.
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2020 (7) TMI 790 - KERALA HIGH COURT
Smuggling - Gold - Scheduled Offences - Principles of 'qui tam action' under Article 226 of the Constitution of India - remedies by way of a writ of mandamus - registration of an FIR - offences under the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974, Indian Penal Code, 1860, Prevention of Corruption Act, 1988 and the Customs Act, 1962 - HELD THAT:- When there is a law and procedure envisaged under the Code of Criminal Procedure, the question whether the registration of a criminal case under Section 154(1) of the Cr.P.C. ipso facto warrants setting in motion of an investigation in Chapter XII Cr.P.C. is provided by Sections 157(1) proviso, and 157(2) of the Cr.P.C. Section 156(3) Cr.P.C. enjoins a discretionary power on a Magistrate under Section 190 of the Cr.P.C., to order investigation by a Police Officer.
In Divine Retreat Centre v. State of Kerala and others, [2008 (3) TMI 734 - SUPREME COURT], no information was given to the police by any informant, alleging commission of any cognizable offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition was sent directly in the name of a learned Judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code.
Whether, the petitioner has made out a strong case for issuance of a writ of mandamus? - HELD THAT:- If the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.
Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases - After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.
Since the petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on the part of the Station House Officer in not registering a case on the basis of the complaint given by him, the petitioner cannot take recourse to this Court for issuance of writ of mandamus or other writ, to the Station House Officer to register a crime and to investigate the case as claimed by the petitioner - Merely because allegations are levelled against the Hon’ble Chief Minister and others and in as much as the allegations relate to abuse of power, it cannot be contended that the nature and magnitude require issuance of a writ as the only remedy available to the petitioner. However, intricate the magnitude and the nature of the offences alleged, the Code of Criminal Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy.
As the writ petition itself is not maintainable, there is also no need to go into the issue as to whether, National Investigation Agency while investigating any Scheduled Offence may also investigate any other offence which the accused is alleged to have committed, if the offence is connected with the Scheduled Offence - Petition dismissed.
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2020 (7) TMI 789 - SC ORDER
Oppression and Mismanagement - wilful disobedience - mis-operation of Locker - appellant is a 3rd party to the proceedings - maintainability of order under Section 241-242, 337 and 339 of the Companies Act, 2013 - HELD THAT:- There are no merit in these appeals. The same are, accordingly, dismissed.
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2020 (7) TMI 788 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Removal of Resolution Professional of the Corporate Debtor - failure on the part of Resolution Professional to conduct himself in an independent manner being an erstwhile employee of the Financial Creditor - HELD THAT:- Since admittedly the RP had been in the gainful employment of the Financial Creditor/Union Bank of India for 34 years, and had been dealing with the accounts of the Corporate Debtor which facts were not known to the Corporate Debtor till recently, the bias attributed to the RP need not be proved in so many words. If the Corporate Debtor has noticed it from the actions of the RP, it can be presumed that the Corporate Debtor has suffered it at the hands of the RP. So this is a fit case, for replacement of RP as prayed for and deserve consideration. However we make it clear that the replaced RP is no way disqualified nor found ineligible for appointment as an insolvency professional.
The CoC is hereby directed to replace the Resolution Professional Mr. Kanakabha Ray, with a new Insolvency Professional who is eligible for appointment as per Regulation 3(1) of the CIRP Regulations, 2016 within one week of the receipt of the email copy of this order - Application allowed.
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2020 (7) TMI 787 - DELHI HIGH COURT
Provisional attachment of properties - amounts lying in any of the accounts of the petitioner were actually the proceeds of the crime or not - petitioner was a minor when the monies came to be credited to his accounts especially - amounts were transferred to his accounts by his late father only - HELD THAT:- Taking note of the totality of facts and circumstances, especially the prevailing situation arising on account of Covid-19 pandemic all over the world, why should not a student – an Indian, be provided with some relief to tide over the difficult situation, when all the avenues available to him are stated to have been completely closed by the subject attachment orders, one wonders.
Though, Mr.Mahajan, ld. CGSC submits that the petitioner would have the sufficient means otherwise for his subsistence and the education inasmuch as large amounts of funds had flown out of the country which are yet to be accounted for, the Court considers that such inferences are not required to be drawn in the present proceedings inasmuch as, Mr.Khurana presses the petition only for a limited purpose, keeping the rival pleas of the parties open for consideration by concerned authority/court.
The writ petition and the pending application are disposed of with a direction to the respondent no.1 – Directorate of Enforcement to release a sum of ₹ 30 lacs to the petitioner from any of the amounts of the petitioner lying attached under the impugned attachment order or any other attachment order issued by it - Application disposed off.
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2020 (7) TMI 786 - SUPREME COURT
Maintainability of suit - time limitation - bogus cheque - legal action initiated for over a period of 5 and ½ years from the execution of the Sale Deed in 2009 Order VII Rule 11(d), Code of Civil Procedure for payment of the balance sale consideration - HELD THAT:- The Plaintiffs have admitted the execution of the registered Sale Deed dated 02.07.2009 in favour of Defendant No. 1/Respondent No. 1 herein - The case made out in the Plaint is that even though they had executed the registered Sale Deed dated 02.07.2009 for a sale consideration of ₹ 1,74,02,000, an amount of only ₹ 40,000 was paid to them. The remaining 31 cheques mentioned in the Sale Deed, which covered the balance amount of ₹ 1,73,62,000 were alleged to be "bogus" or "false", and allegedly remained unpaid.
If the case made out in the Plaint is to be believed, it would mean that almost 99% of the sale consideration i.e. ₹ 1,73,62,000 allegedly remained unpaid throughout. It is, however inconceivable that if the payments had remained unpaid, the Plaintiffs would have remained completely silent for a period of over 5 and ½ years, without even issuing a legal notice for payment of the unpaid sale consideration, or instituting any proceeding for recovery of the amount, till the filing of the present suit in December 2014 - the definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.
Even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed - the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected Under Order VII Rule 11(a).
The present case is a classic case, where the Plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation - the Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected Under Order VII Rule 11(d) of Code of Civil Procedure.
The Plaintiffs have also prayed for cancellation of the subsequent Sale Deed dated 01.04.2013 executed by Respondent No. 1 in favour of Respondent Nos. 2 and 3; since the suit in respect of the 1st Sale Deed dated 02.07.2009 is rejected both under clauses (a) and (d) of Order VII Rule 11, the prayer with respect to the 2nd Sale Deed dated 01.04.2003 cannot be entertained.
The present suit filed by the Plaintiffs is clearly an abuse of the process of the court, and bereft of any merit - appeal dismissed.
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2020 (7) TMI 785 - RAJASTHAN HIGH COURT
Money Laundering - Bribery - tainted money of scheduled offence of corruption in mining department of the State Government of Rajasthan - offence under Section 3/4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Without making any comment on its order, suffice it to note the relevant legal position expounded in above referred judgments that while granting or refusing bail to an accused in a particular case, the role of every accused in the alleged crime along with other relevant factors are to be considered. A particular accused cannot claim to be released on bail only on the ground of grant of bail to other co-accused person. Accordingly even the same bench in a given case grants bail to an accused and refuses to another one having different footings.
In the instant case, other co-accused persons have been enlarged on bail by the coordinate bench of this court but the case of present applicants is not similar to those co-accused persons looking to their major role in the alleged crime, the evidence collected against them, their conduct of evading trial and other relevant factors.
Without expressing any opinion to the merits of the case,suffice it to say that the record of the case prima facie reveals that being Principle Secretary of Mining Department, accused Ashok Singhvi has been main kingpin of the conspiracy, in furtherance of which a huge amount of ₹ 2.55 crores was collected as bribe. Ample evidence including telephone recording, call details is available on the record which very well connects him with the crime.
In view of settled legal position and the fact of finality of cognizance order in this case, such contentions of applicants are not tenable that they are entitled for bail due to bail in scheduled offence or they were not arrested during the course of investigation - the case of both the present accused applicants cannot be said to be similar to that of those co-accused persons who have been enlarged on bail by coordinate bench of this court, therefore, keeping in view the specific major role of the present accused applicants, strong evidence available against them, their conduct to evade the trial, probable impact on the Society on granting bail to present accused applicants having distinct status in this economic offence of severe nature of rampant corruption in Government departments and all other relevant factors as envisaged in PML Act, both the present applicants do not deserve to be enlarged on bail.
Bail application dismissed.
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2020 (7) TMI 784 - ITAT MUMBAI
Charging of interest u/s. 234B - assessee submitted that the assessee since incurred huge losses in earlier years thus there is no liability to pay advance tax and therefore it is not liable to pay interest u/s. 234B - HELD THAT:- As decided in own case for the A.Y. 2009-10 decided the issue in favour of the assessee.
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2020 (7) TMI 783 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Composite Scheme of Arrangement - Section 230-232 of Companies Act - 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 (7) TMI 782 - ITAT JABALPUR
Order under section 143(3) - selection of assessee’s return for the relevant year for scrutiny u/s. 143(3) - HELD THAT:- The selection of assessee’s return for the relevant year for scrutiny u/s. 143(3) of the Act was in compliance of the procedure laid down by CBDT for selection of cases for scrutiny for non-corporate assessees for f.y. 2006-07, and, thus, the assessment u/s. 143(3) dated 31.12.2007, which is the subject matter of the instant appeal, could not be impugned on that score. In this, he agreed with the ld. AM.
The assessment returned by the assessee as agricultural income, was assessable as such, and its assessment as income from other sources, in whole or in part, could not be sustained in law, i.e., in the facts and circumstances of the case, including the explanations furnished, and on the basis of material on record. In this, he agreed with the ld. JM.
The matter was accordingly listed for today instant, to dispose the appeal in accordance with the majority view after hearing the parties, who did not express any objection thereto. No other issue survives for adjudication in the instant appeal.
The appeal is accordingly decided on the aforesaid terms. In the result, the assesse’s appeal is partly allowed.
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2020 (7) TMI 781 - DELHI HIGH COURT
Validity of Pledge Invocation Notice and Corporate Guarantee Notice - seeking restraint on Respondent No. 1 from acting on the Pledge Invocation Notice against the Petitioner - restraint on Respondent No. 1 from acting on the Corporate Guarantee Notice against the Petitioner during the pendency of the present Petition and/or conclusion of arbitration proceedings - HELD THAT:- There is no binding arbitration agreement, it is agreed between the parties through their counsels during the arguments that the said contention be kept open to be decided at the appropriate stage. Their statements are taken on record and the issue is left open.
According to Dr. Saraf, the equity holding pattern in the case of a listed company would change daily - I am in agreement with the submissions of Dr. Saraf. Firstly, no such stipulation exists in the pledged agreements. The plea is clearly an afterthought only to wriggle out from the liability. Rather it is represented in the agreement that the Dish TV shares are freely transferrable without any restriction under any law, regulation or orders of any authority. It is not the case of the petitioner that such an approval was taken by it when it, bought the shares/at time of allotment. That apart, the shares are being freely traded in the stock market.
The prayers as sought for by the petitioners cannot be granted - Petition dismissed.
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2020 (7) TMI 780 - KERALA HIGH COURT
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking directions to the 3rd respondent committee to accept the payment as per Exts.P8, P9, P10 - seeking issuance of discharge certificate, in Form SVLDRS-4 - HELD THAT:- A complete procedure and eligibility has been prescribed for availing the benefit of the scheme. However, as per Section 128 within 30 days of issuance of statement, designated committee, suo motu, is empowered to correct an arithmetical and clerical error, which is apparent on the face of record. No doubt in the instant case while accepting the declarations submitted by the petitioner issued statements vide Exts.P8, P9 and P10 dated 28th February 2020. The rectification orders Exts.P12 to P14 dated 2.6.2020 are beyond 30 days. Though Petitioner was entitled to the benefit of the scheme as per originally issued SVLDRS-3 but, this Court cannot remain oblivious that many assesses availed the benefits of scheme and owing to such fact, the designated committee could not notice the manual returns Exts.P1 to P3 were ever filed and by accepting declarations, SVLDRS-3 were issued.
The factum of non filing of the manual return has not been controverted. The expression may will not take away the right of the designated committee to rectify even beyond the period of 30 days being not mandatory in nature. Even Section 129 of Scheme envisages that every discharge certificate issued under 126 with respect to the amount payable shall be conclusive but sub Section 2(c) of Section 129 opens with a non obstante clause that in a case of a voluntary disclosure where any material particular furnished in the declaration is subsequently found to be false, within a period of one year of issue of the discharge certificate, it shall be presumed as if the declaration was never made.
The misstatement vitiates everything. It is in that background the designated committee found ie., the absence of any returns or payment of tax, the earlier declarations were issued - petition dismissed.
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2020 (7) TMI 779 - ALLAHABAD HIGH COURT
Refund of certain amounts of tax deposited - seeking abatement of all other proceedings pending before different authorities in respect of certain transactions - Section 57 of the UP VAT Act - HELD THAT:- The submission that the writ would avoid multiplicity of proceedings is of no avail as all proceedings initiated against the petitioner arise from separate cause of actions and require to be considered and decided independently whereupon the petitioner may avail the statutory remedies against the orders so passed therein.
The reliance placed on certain interim orders of this Court passed in petitions of other parties is of no consequence as the challenge therein were in respect of certain notices whereas in the present case after notices, assessment order and even an order in appeal has been passed. Thus, this case is distinguishable on facts from the orders cited.
The writ petition is dismissed on the ground of alternative remedy.
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2020 (7) TMI 778 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Application filed by Voluntary Liquidator - Dissolution of Company - Section 59 of the Insolvency and Bankruptcy Code, 2016 read with Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- Necessary compliances of Section 59 and other relevant provisions of the Insolvency and Bankruptcy Code, 2016 read with the regulations have been made within 12 months from the date of commencement of the liquidation proceedings - the Application is duly supported by the affidavit of the Voluntary Liquidator. The Liquidator has distributed all the proceeds to the shareholders and has closed the account. Further, in terms of Regulation 38 of the IBBI Regulations, the voluntary liquidator has submitted the final report to the IBBI and RoC on 22.04.2019 along with all annexures.
In view of the satisfaction accorded by the Voluntary Liquidator by way of the present application, duly accompanied by his affidavit, the said applicant Company is hereby dissolved with effect from the date of the present order - Petition allowed.
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2020 (7) TMI 777 - ITAT KOLKATA
Disallowance u/s 43B - disallowances of outstanding service tax liability - HELD THAT:- CIT(A) has rightly held that since the assessee has not debited the service tax in its profits and loss account therefore no disallowance can be made u/s 43B of the Act. Since the ld. CIT(A) has already directed to the AO stating that in subsequent years when the service tax liability has been settled at a lesser amount the assessee is duty bound to offer the difference for taxation, and the ld. CIT(A) directed the Assessing Officer to verify the same and if the assessee had not offered the difference for taxation then bring the same to taxation by invoking section 148 of the Act. We note that there is no infirmity in the direction given by the ld. CIT(A) therefore, we decline to interfere in the order passed by ld. CIT(A), his order on this issue, is hereby upheld and grounds of appeal raised by the revenue is dismissed.
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