|
Advanced Search Options
Case Laws
Showing 61 to 80 of 943 Records
-
2020 (8) TMI 884
Seeking directions against the Income Tax Department - HELD THAT:- Issue notice to Income Tax Department through Deputy Commissioner of Income Tax, Circle- 3(2)1, Muzzafarnagar, Aaykar Bhawan, Meerut Raod, Muzzafarnagar, U.P. List on 17.09.2020.
-
2020 (8) TMI 883
Seeking for issue of Writ of Mandamus - initiation of action with regard to the destruction of residential building and other properties of Accused-Vikas Dubey and to safeguard the life of the Accused - conflict of interest - HELD THAT:- The entire basis for making the allegations as contained in the miscellaneous petition is an Article relied on by the Petitioner said to have been published in the newspaper. There is no other material on record to confirm the truth or otherwise of the statement made in the newspaper. In our view this Court will have to be very circumspect while accepting such contentions based only on certain newspaper reports. This Court in a series of decisions has repeatedly held that the newspaper item without any further proof is of no evidentiary value. The said principle laid down has thereafter been taken note in several public interest litigations to reject the allegations contained in the petition supported by newspaper report.
In the case on hand, the Petitioner is a lawyer by profession who practices in Mumbai and has come up by way of Public Interest Litigation. Therefore, the allegations of bias made by him against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.
The Petitioner herein is an advocate who practices law in Mumbai, Maharashtra and is in no way connected to the incident in question which took place in U.P. However, the petition filed by him in public interest was accepted and the Commission of Inquiry consisting of persons who had held high position has been constituted. The enquiry held would be in public domain and the Petitioner has already been granted the liberty of participating therein. The report of the enquiry is ordered to be filed in the petitions which were filed before this Court. Therefore, there would be sufficient safeguard to the manner in which the inquiry would be held - the Petitioner has been raising unnecessary apprehensions and repeated applications are being filed which in fact is hampering the process of inquiry.
The instant petition/application is without any merit and the same is accordingly dismissed.
-
2020 (8) TMI 882
DTVSV Act - As assessee has availed the benefit of Direct Taxes Vivad Se Vishwas Act, 2020. Accordingly, this appeal is dismissed as withdrawn.
-
2020 (8) TMI 881
Seeking issuance of Solvency Certificate - appellant's account was classified as NPA or not - power of Revenue Department to issue the Solvency Certificate - HELD THAT:- Among other defence, learned counsel for the respondent therein, has raised a preliminary objection that the writ petition is not maintainable, because the grant of solvency certificate is regulated by Government instructions, which are non-statutory. In support of his contention learned counsel for the respondent therein has relied on two decisions of the Hon'ble Supreme Court, the State of Assam v. Ajit Kumar Sharma, in [1964 (10) TMI 104 - SUPREME COURT] and G.J. Fernandez v. State of Mysore, [1967 (4) TMI 200 - SUPREME COURT] wherein, it was held mere administrative instructions do not confer any right on any member of the public, to ask for a writ against the Government to enforce the same.
Question considered by the Hon'ble Madhya Pradesh High Court in Pt. Girija Shankar Sharma's case [1973 (8) TMI 174 - MADHYA PRADESH HIGH COURT] was whether a public body enjoined with a public duty has to act fairly, and whether the discretion conferred on such public authority Collector therein, had discharged his duties, no matter, whether he has governed by administrative instructions or not. In Pt. Girija Shankar Sharma's case, it is evident that the exercise of power by the Collector was found to be erroneous and hence the court set aside the order impugned therein. There cannot be any doubt that Collector is exercising a public duty. Question as to whether bank is discharging public duty or not, was not a question raised therein. Said judgment is totally inapposite to the case on hand. It cannot be treated as a precedent to the instant writ petition.
The bank is not performing any public duty and hence, writ petition is not maintainable - Appeal dismissed.
-
2020 (8) TMI 880
Maintainability of appeal on low tax effect - exceptions where the monetary limit is not applicable - Miscellaneous Application of revenue seeking recalling of Tribunal’s order whereby the appeal of the revenue was dismissed on the ground of low tax effect in view of the monetary limits provided in CBDT Circular No. 3 of 2018 - assessee has submitted that the assessee has come to know about this fact that the assessment was reopened by the AO based on the Audit Objection first time when the Miscellaneous Application has been filed by the revenue - HELD THAT:- As per clause (c) of para 10 of the Circular it is clear that where the revenue Audit Objection in case of an assessee has been accepted by the Department, the appeal of the revenue has to be decided on merits irrespective of the low tax effect. Now it is fact on record that the Audit Objection was accepted by the department and the AO has disallowed interest expenditure as pointed out by the Audit Branch of the Revenue. Therefore, we find that the appeal of the revenue falls in the exception as provided in para 10(c) of the Circular No. 3 of 2018. Accordingly, we recall the impugned order dated 04.10.2019 and restore the appeal of the revenue at its original number and stage. The Registry is directed to list the appeal of the revenue for hearing on 9th October, 2020. The assessee shall have a liberty to raise the objection, if any against the decision of the AO based on the Audit Objection. The next date of hearing is announced in the open court and noted down by the parties, therefore, no separate notice of hearing shall be issued.
Miscellaneous Application filed by the revenue is allowed.
-
2020 (8) TMI 879
Benami Transactions - Scope of 2016 amendment Benami Transactions Act, 1988 - HELD THAT:- As in M/S. GANPATI DEALCOM PVT. LTD. THROUGH MANAGING DIRECTOR [2020 (3) TMI 899 - SUPREME COURT] has passed an interim order, whereby, the operation of the impugned order insofar as it holds that 2016 amendment of the Benami Transactions Act, 1988 was prospective in nature, was stayed.
Keeping in view the above order, it is ordered that in the meantime, operation of the impugned order passed by the learned Single Judge insofar as it holds that 2016 amendment Benami Transactions Act, 1988 was prospective in nature, shall remain stayed.
-
2020 (8) TMI 878
Seeking order of injunction restraining the Corporate Debtor and/or its Officers and/or any third party from dealing/ alienating / transferring/ selling the assets of the Corporate Debtor during pendency of this application - time limitation - HELD THAT:- The OC has succeeded in placing all the relevant documents so as to comply with the requirements to be meted out u/s.9 (3) of the Code. Pressing for an order of injunction in a case of this nature does not by itself indicate that this application was filed by the OC for recovery of money found admittedly due to the OC. Therefore the submission that the intention on the side of the OC is not to initiate CIRP but to initiate recovery proceedings is devoid of any merit. The application therefore is perfectly maintainable u/s. 9 of the Code.
The admitted correspondence letters (Annexure- G) exchanged in between the OC and the CD, proves that the amount as claimed by the OC is due and payable by the CD. The claim of the OC is also not barred by limitation - the application is complete, there is no payment of unpaid operational debt despite receipt of the demand notice, and there is no disciplinary proceeding pending against the insolvency resolution professional.
Application admitted - moratorium declared.
-
2020 (8) TMI 877
Rectification of mistake - Comparable selection - HELD THAT:- This Tribunal, inadvertently did not adjudicate comparability of following comparables with assessee with E-Zest Solutions and Softsole India Ltd - We accordingly, recall this ground for limited purposes of adjudicating comparability of E-Zest Solutions and Softsole India Ltd., with assessee.
Computation of deduction u/s 10A - CIT(A) upholding the action of the learned AO in not allowing deduction under section 10A of the Act on the enhanced export income determined as per Mutual Agreement between the Competent Authorities ("CA") - HELD THAT:- The argument of Ld.AR regarding export income determined as per MAP as accepted by assessee. However we note that there inadvertently a view has not been expressed in this regard.
We also note that corporate ground in revenue’s appeal though have been discussed, however since it is appearing under ground 15-16 of assessee’s appeal, conclusion needs to be also modified.
Accordingly, we recall impugned order for limited purposes of adjudicating Ground 15-16 in assessee’s appeal and Ground No.1 in revenue’s appeal under corporate tax issues. MP of assessee allowed.
-
2020 (8) TMI 876
Scope of appeal - Case of appellant is that the point of maintainability which goes to the root of the appeal, had not been considered by the tribunal while passing orders from time to time - HELD THAT:- The interim order made on 21st February 2020 records that the appeal would be taken up on 13th July 2020 - the interest of justice would be subserved if the tribunal is directed to hear out the appeal as expeditiously as possible, preferably within three months from date by video link or any other mode.
The maintainability point shall be formally raised by the appellant by filing a supplementary affidavit before the tribunal by 7th September 2020, serving copies thereof on the respondents. The tribunal shall decide the point of maintainability as a preliminary issue - There cannot be indefinite continuance of the interim order. It is extended only till 31st December 2020 by which time the appeal should be disposed of by the tribunal.
Appeal disposed off.
-
2020 (8) TMI 875
Seeking pre-arbitration interim relief - Sinister sequence of events - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 9 of the 1996 Act contemplates "interim measures, etc.", by the Court. The expression "etc.", used at the end of a definition clause has been held, in several decisions, to be required to be interpreted noscitur a sociis and ejusdem generis (the latter principle applying where the words, preceding the word "etc.", constituted a genus, and the former principle applying more universally, in all cases), the words preceding it.
The Court, while exercising its power under Section 9 of the 1996 Act, has to be acutely conscious of the power, vested in the arbitrator/arbitral tribunal, by Section 17 of the same Act. A reading of Section 9, and Section 17, of the 1996 Act, reveals that they are identically worded. The "interim measures", which can be ordered by the arbitral tribunal, under Section 17, are the very same as those which can be ordered by the Court under Section 9. It is for this reason that sub-section (3) of Section 9 proscribes grant of interim measures, by the Court, consequent on constitution of the arbitral tribunal, save and except where the Court finds that circumstances exist, which may not render the remedy, under Section 17, to be efficacious. The Court, while exercising jurisdiction under Section 9, even at a pre-arbitration stage, cannot, therefore, usurp the jurisdiction which would, otherwise, be vested in the arbitrator, or the arbitral tribunal, yet to be constituted.
There is no whisper of any denial, in the aforesaid response, dated 8th July, 2020, from the petitioner to the Respondent, of the allegations that the petitioner had failed to maintain the Required Security Cover, and to liquidate all Outstanding Amounts by the final Redemption Date, i.e. 10th July, 2019. The fact of failure, on the part of the petitioner, to pay the Outstanding Amounts by the cutoff date of 10th July, 2019, stands, in fact, expressly acknowledged and admitted, by the petitioner, in its letter dated 30th June, 2020. The approach of the petitioner, in its response dated 8th July, 2020, was to maintain a studied silence thereon, and, instead, to allege "market manipulation" by KKR and its confederates. Even in the present petition, before this Court, the petitioner has remained completely silent, regarding the allegation of non-maintenance of the Required Security Cover, and of failing to repay all Outstanding Amounts, to the Debenture Holders, on or before 10th July, 2019. Prima facie, therefore, "Events of Default" had taken place, within the meaning of Clause 1.1.41 of the Debenture Trust Deeds, read with Clause 3.4 and S. No. 2 and 14 of the "Events of Default", enumerated in Schedule 3 to the Debenture Trust Deed.
The very contention, of the petitioner, that the price of the CGP shares had fallen owing to a misleading report, by Vaish & Co., too, is entirely presumptuous in nature, amounting to nothing more than speculation. There are myriad and manifold considerations, which operate to raise, or lower, the prices of stocks in the stock market. Fluctuation of the stock market, as is axiomatic in macroeconomic theory, is one of the most unpredictable of all unpredictable sciences - the dispute is entirely foreign to the issue of default, by the petitioner, to honour its obligations under the Debenture Trust Deeds, and the resultant right, of the Respondent to invoke the pledged shares, and sell them in the stock market, for realisation of the outstanding amounts.
The dispute, between the petitioner and the respondent, which could legitimately form the basis of an arbitral proceeding and, consequently, of the present proceedings under Section 9 of the 1996 Act, is the alleged infraction, by the petitioner, of the covenants of the Debenture Trust Deeds, and the right of the respondents, on that basis, to proceed against the shares, pledged by the petitioner by way of security. That dispute has nothing to do with good faith or bad faith. The "want of good faith", on the part of the respondents-as alleged by the petitioner-is in the manner in which the respondents allegedly depressed, artificially, the price of the CGP shares, before purchasing them in the open market - the prayers of the petitioner, in the present petition cannot, therefore, be granted, in exercise of the power conferred on this Court by Section 9 of the 1996 Act.
Petition dismissed.
-
2020 (8) TMI 874
The Bench for hearing of the urgent matters through Video Conference (VC) - The matter is taken up on VC. Counsel for the Applicant and Mr. Sanjay Shorey, Director, Legal & Prosecution, (MCA), Mumbai and Mr. Manmohan Juneja, Regional Director (WR), Mumbai are present for the Respondent, Union of India.
On request, matter is adjourned to 31/08/2020 for the Applicant to furnish an intimation regarding his son’s admission to a particular Institute.
-
2020 (8) TMI 873
Seeking to withdraw an amount from his Bank account over and above the limit fixed by this Tribunal - HELD THAT:- The Applicant is directed to furnish the Account Statements of all his Bank Accounts from 01.01.2019 till date, supported by an affidavit, for the consideration of the Bench which would be necessary while passing the order.
List this matter on 12.8.2020 for compliance and hearing of the Application.
-
2020 (8) TMI 872
Maintainability of appeal - appeal rejected on the ground that the appeal of the petitioner is not qualified for admission, as the petitioner did not adhere to the provisions in Section 107 of AP GST Act, 2017 and Rule 108 of AP GST Rules, 2017 - HELD THAT:- Rule 108 of GST Rules deals with the appeal to the Appellate Authority. According to the said Rule, an appeal to the Appellate Authority under sub-section (1) of Section 107 shall be filed in FORM GST APL-1 along with the relevant documents, either electronically or otherwise, as may be notified by the Commissioner.
This writ petition is allowed and the impugned rejection order is set aside with a direction to the 2nd respondent to entertain the appeal of the petitioner and pass appropriate orders, in accordance with the procedure established by law.
-
2020 (8) TMI 871
Grant of partial grant of award by the learned Arbitrator - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The logic of the learned Arbitrator, as reflected from the award impugned herein, gives clear justification for the interest as awarded. It was entirely within the bounds of logic and reason to divide the award into several time-periods, being the pre-award, pendente lite and post-award periods, each of which would have to focus on interest on the sum due at that stage. As such, since the principal awarded carried interest for the pre-litigation period, there is no bar in considering the principal sum, for the purpose of interest pendente lite at the next stage to be the sum total of the pre-litigation interest added to the interest thereon. By similar logic, each of the stages entitled the award-holder to interest and the interest component, along with the principal, of each previous stage would be taken as the principal "sum" for the purpose of levying interest for the next.
There is no justification in finding fault with such ratio of the arbitrator in imposing interest, all the more since the scope of interference under Section 34 is extremely limited.
Corroborative evidence in support of the 5th RA Bill work being done - HELD THAT:- The same cannot hold water, since the RA Bill, by its very definition and nature, is a running account bill which is raised from time to time. The amount on the 1st to 4th bills were not claimed since the same was already credited to the account of the claimant. As such, the question of abandonment of work being a basis of refusal of such amount does not arise - The TDS certificate, read in conjunction with the RA bill itself, particularly in view of the clearance of the previous RA Bills, clearly weigh the preponderance of probability in favour of amount claimed on the 5th RA Bill being justifiable.
It is a fallacious argument that different yardsticks were followed in respect of refusal of the claims on the 1st to 4th RA bills while granting the 5th RA bill dues. This is for the simple reason that the 1st to 4th bill amounts were already credited by the respondent company to the claimant's account and there was no claim in the arbitral proceeding, as such, for the said amount. Any question of the claimant being not entitled to the previous bill dues would be superfluous in the context. The arbitrator sufficiently applied his mind in considering the relevant materials on record in conjunction with each other and was justified in granting the partial award, including interest, in the present case.
The stringent tests of Section 34(2) of the 1996 Act are not satisfied at all in the instant case to justify interference under the said provision - petition dismissed.
-
2020 (8) TMI 870
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Non-Performing Asset (NPA) - existence of debt and dispute or not - time limitation - HELD THAT:- The Hon'ble Apex Court in B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT] where it was held that The right to sue therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.
This application is hopelessly time barred - Application dismissed.
-
2020 (8) TMI 869
Detention of goods alongwith vehicle - E-way bill not present - levy of penalty u/s Central Goods and Services Tax Act, 2017 - HELD THAT:- Immediately after noticing that a single consignment of 80 plywood sheets transporting under two invoices without e-way bill and also identifying it as fraud transaction in order to avoid e-way bills which are mandatory documents as per the CGST Act, the 3rd respondent by following the procedure contemplated under Section 129 (3) of CGST Act has issued the notice to the petitioner.
Even the counsel for the petitioner also admits that the petitioner was transporting the goods without e-way bills, which will attract the provisions of Section 129 (1) (a), which ordains 100% penalty leviable on the value of goods, but pleads indulgence as imposing 100% penalty is on a higher side.
The order passed the 3rd respondent is legally sustainable & in accordance with law, which is not disputed the same warrants no interference by this Court - petition dismissed.
-
2020 (8) TMI 868
Maintainability of application - it is submitted that Adjudicating Authority should have rejected the application under Section 9 if there was no material to substantiate the allegations in respect to debt and default and it was impermissible for Adjudicating Authority to direct the Appellant to file Profit and Loss Account and Balance Sheet of the company for the year 2011-12 to till date.
HELD THAT:- Issue notice upon Respondent. Appellant to provide mobile Nos./e-mail address of the Respondent. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within two days.
List the appeal ‘for admission (after notice)’ on 27th August, 2020.
-
2020 (8) TMI 867
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - threshold limit of minimum default - petition filed within time limitation or not - HELD THAT:- In the present case, it would be seen that the petition has been filed under Insolvency & Bankruptcy Code on 23.09.2019 which is within 3 years from the due date with regard to only one invoice i.e. Invoice No. 16011613002088, dated 09.09.2016, after considering the grace period of 20 days as agreed between the parties in terms of clause 2.4 of the Agreement dated 03.03.2016 as the right to sue under this invoice accrues on 29.09.2016. For the other two invoices for which the due date is 14.08.2016 and 21.08.2016 are clearly barred by limitation as the present petition has been filed on 23.09.2019. The invoice dated 09.09.2016 is only for an amount of ₹ 36,074/- and even if the interest @ 24% is added, the total amount comes to ₹ 61,288/-.
This is well below the threshold limit of minimum amount of default of ₹ 1,00,000/- for any petition under section 7 or 9 to be considered/ admitted by this Tribunal in terms of Section 4 of the Insolvency and Bankruptcy Code, 2016.
Petition dismissed.
-
2020 (8) TMI 866
Decree of recovery of possession of the suit premises - Refusal of relief of possession especially when the Lower Appellate Court granted relief of mesne profits till delivery of possession - entitlement to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title - substantial question of law or not - burden of proof - HELD THAT:- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way - To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained - Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis.
The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant-Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent-Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted.
The second question of law, that is, the question of whether the First Appellate Court was right in holding that the plaintiff was entitled to a declaration of title in respect of half of the suit property, has, as observed above, been decided in favour of the Respondent Plaintiff, based on pleadings and evidence. The conclusion of the First Appellate Court, of the entitlement of the Respondent Plaintiff to a declaration in respect of his half share in the suit property does not warrant interference in a second appeal - The first question framed by the High Court, that is, the question of whether the Lower Court /Appellate Court was right in refusing the Respondent Plaintiff relief of possession, when the Appellate Court had granted mesne profits to the Respondent Plaintiff, is based on the erroneous factual premises that the First Appellate Court had granted mesne profits to the Respondent Plaintiff, which the First Appellate Court had not done.
The High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff’s claim to reliefs is to be decided on the strength of the Plaintiff’s case and not the weakness, if any, in the opponent’s case - the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.
When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law.
The judgment and order of the High Court under appeal is set aside - Appeal allowed.
-
2020 (8) TMI 865
Maintaiability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - Existence of debt and dispute or not - Corporate Debtor deliberately failed and neglected to pay legally enforceable debt - service of demand notice - HELD THAT:- This Bench on examination, finds that the Demand Notice dated 10.09.2018 has been duly served through registered post by the Petitioner at 604, Kaushal point, 4th floor, behind Uday cinema, Ghatkopar (W), Mumbai. A proof of delivery by way of acknowledgment card has been attached by the Petitioner with his Petition. That it is the correct address for delivery of Demand Notice is borne out by the fact this address is mentioned as the Registered address of the Corporate Debtor company even in their Annual Report of 2018-2019. This Bench, therefore, has no doubt that the Demand Notice was duly served upon the Corporate Debtor and it chose not to contest it.
The Corporate Debtor has not been able to produce a single piece of paper which points towards it raising any dispute regarding the transactions, invoices or the amount payable.This Bench has no doubt that at least an amount of ₹ 90,49,843/- is a liability which is due from Risa International Limited and qualifies as Operational Debt both in terms of Section 3(11) and Section 5(21) of the IBC, 2016 - Application under sub-section (2) of Section 9 of I&B Code, 2016 filed by the Operational Creditor for initiation of CIRP in prescribed Form5, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing operational debt beyond the threshold limit against the Corporate Debtor and its default is also proved.
The application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the Corporate Debtor deserves to be admitted - Application admitted - moratorium declared.
........
|
