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Showing 41 to 60 of 1080 Records
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2021 (5) TMI 1041
Disallowance u/s 14A r.w.r. 8D - expenditure incurred by the assessee in relation to the income which does not form part of the total income - HELD THAT:- As respectfully following the decision of the coordinate Bench rendered in assessee’s own case for the assessment year 2010-11 [2019 (7) TMI 1601 - ITAT CHANDIGARH] we send this issue back to the AO for ascertaining as to whether the working submitted by the assessee is in accordance with the direction given by the coordinate Bench in assessee’s own case for the assessment year 2010-11 and in case it is found correct, to restrict the disallowance to the computation made by the assessee. Further we find merit in the alternative plea of the Ld. Counsel that the disallowance u/s 14A read with Rule 8D (2) cannot exceed the exempt income earned by the assessee.
As relying on JOINT INVESTMENTS PVT LTD case [2015 (3) TMI 155 - DELHI HIGH COURT]disallowance u/s 14A read with Rule 8D cannot exceed the exempt income. Hence, we further direct the AO to restrict the disallowance to the exempt income of the assessee in case the disallowance exceeds the exempt income while computing the same as per direction of the coordinate Bench given in assessee’s case for the assessment year 2010-11 discussed above. We therefore do not find any merit in the first ground of appeal of the revenue.
Claim filled during assessment proceedings - Additional depreciation during the assessment proceedings - As per DR since the assessee had not claimed carry forward of additional depreciation in its return of income, there is no provision under the Income Tax Act to make amendment in the return of income at the assessment stage without revising the return - HELD THAT:- As in the case of Budhewal Cooperative Sugar Mills Ltd. [2009 (5) TMI 63 - PUNJAB AND HARYANA HIGH COURT] following the ratio laid down by the Hon’ble Jurisdictional High Court in the case of CIT vs Ramco International [2008 (12) TMI 413 - PUNJAB AND HARYANA HIGH COURT] allowed the identical claim of the assessee made on the basis of a letter filed after the last date on which the revised return could have been filed u/s 139 (5) and not filing revised return. - Decided against revenue.
Non application of Rule 8D for the purpose of computing income u/s 115JB - HELD THAT:- The Special Bench of the ITAT Delhi has categorically held in the case of CIT Vs Vireet Investment Pvt Ltd. [2017 (6) TMI 1124 - ITAT DELHI] that Rule 8D cannot be applied while computing book profit u/s 115JB - Since, the findings of the Ld. CIT(A) are in accordance with the decision there is no merit in this ground of appeal of the Revenue. Hence, in view of the decisions referred above, we uphold the findings of the Ld. CIT(A), we dismiss this ground of appeal of the Revenue.
Nature of receipts - Carbon Credit Receipts - revenue or capital - HELD THAT:- We notice that the Coordinate Bench has already decided the identical issue in favour of the assessee in assessee’s own case for the AY 2010-11 [2019 (7) TMI 1601 - ITAT CHANDIGARH] by following the decision of the coordinate Bench in Kotla Hydro Power Pvt Ltd. [2015 (4) TMI 1346 - ITAT CHANDIGARH]treating the Carbon Credit Receipts as capital in nature. - Decided against revenue.
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2021 (5) TMI 1040
Direction to disburse payment of dues of workers and employees of the Company working at the Dharwad Plant of the company in Karnataka in a regular and timely manner - restraint on respondent/Liquidator by an order of injunction from taking any coercive steps for closing the operations of the company's plant at Dharwad, Karnataka - restraint on respondent/Liquidator by an order of injunction from terminating, or taking any decision to terminate, the agreement between the company and Jeju Metals Private Limited - appointment of competent and independent agency to investigate the manner in which the respondent/Liquidator has been conducting his affairs as such Liquidator.
HELD THAT:- A contractual agreement between two corporate entities such as the Corporate Debtor and JMPL cannot be considered to be skewed in favour of any one party. It has necessarily to be treated as a contract between equals, and therefore, unless the contrary is proved, entered into without any undue influence, coercion, fraud or any other such element which would have vitiated the agreement. The parties to the contract, in such circumstances, should normally be held to their bargain - If JMPL thought that the termination of the contract was wrong, it has all the resources and the legal framework to challenge the same. The fact remains that this has not been done so far. An inference should, therefore, be drawn that JMPL was not aggrieved in any manner by the termination of the contract.
Direction sought upon the liquidator to pay the dues of the workers and employees working at the Dharwad plant of the Company in a regular and timely manner - HELD THAT:- The liquidator has taken the decision to terminate the contract on 15.07.2020 from a commercial perspective, where the payments for April 2020 came to be paid in tranches till July 2020. The liquidator was not sure whether the payments for May, June and July 2020 would at all come, and therefore came to the conclusion to terminate the contract so that he could explore other options - it is a matter of conjecture whether JMPL would have come as the knight in shining armour to save the workers. Considering that no payments have come forth from JMPL after the termination of the contract, we are not too sure that this could have happened.
Direction to restrain the liquidator from taking any coercive decision for closing down the operations of the Company's Dharwad plant - HELD THAT:- The prayer cannot be granted. It is for the Liquidator to take a call on whether to close down the operations of the Dharwad plant of the Company, as indeed for other units of the Corporate Debtor. In the order dated 11.01.2018, this Adjudicating Authority had specifically ordered the liquidator to try and dispose of the corporate debtor as a going concern within a maximum period of three months. For various reasons, this has not been possible for the liquidator.
Appointment of competent and independent agency to investigate the manner in which the liquidator has been conducting his affairs as such liquidator, was not seriously argued by the learned counsel for the applicants - HELD THAT:- In the absence of any allegation of fraud or bias in the decisions of the liquidator, we cannot order a roving inquiry just on the basis of perceived loss of employment of the workers on account of a business decision taken by the liquidator to terminate the arrangement with JMPL. To hold otherwise will set a wrong precedent, and insolvency professionals shall not be able to take independent decisions, leading to a failure of the system. Such an approach should, therefore, be shunned. Actions taken in good faith by a public servant always enjoy protection under the law, and the IBC is no different, providing for the same under section 233 of the Code.
Application dismissed.
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2021 (5) TMI 1039
Recovery of arrears of water tax and charges - HELD THAT:- Upon condition that the petitioner remits 50% of the demand under the communication dated 29.04.2021 within a period of two weeks from today, there shall be stay of recovery of the balance until further orders.
List on 16.06.2021.
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2021 (5) TMI 1038
Contours and extent of special provisions for the advancement of socially and educationally backward class (SEBC) of citizens as contemplated Under Article 15(4) - contours and extent of provisions of reservation in favour of the backward class citizens Under Article 16(4) of the Constitution of India - Interpretation of the Constitution (102nd Amendment) Act, 2018.
The High Court by the impugned judgment upheld Act, 2018, except to the extent of quantum of reservation provided Under Section 4(1)(a), 4(1)(b) over and above 12% and 13% respectively as recommended by Maharashtra State Backward Class Commission. The writ petitions challenging the Ordinance XIII and XIV of 2014 as well as Act, 2014 were dismissed as having become infructuous. Few writ petitions were also allowed and few detagged and other writ petitions have been disposed of.
HELD THAT:- Following conclusions have been reached:-
1. Indra Sawhney [1992 (11) TMI 277 - SUPREME COURT] does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society.
2. The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney's case.
3. The State Government, on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Indra Sawhney.
4. The questions Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? and Whether, States' power to legislate in relation to "any backward class" Under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?, are answered as below:
(i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published Under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.
(ii) The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission Under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published Under Article 342A (1).
(iii) The reference to the Central List in Article 342A (2) is the one notified by the President Under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term "the Central List" is only to refer to the list prepared and published Under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, Under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2).
(iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up Under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, Under Article 342A (1), by reason of Article 367 read with Section 3(8)(b) General Clauses Act).
(v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16-except with respect to identification of SEBCs, remains undisturbed.
(vi) The Commission set up Under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued Under Article 142 of the Constitution of India.
5. Article 342A of the Constitution by denuding States power to legislate or classify in respect of "any backward class of citizens" does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India.
The appeals and writ petitions are disposed off.
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2021 (5) TMI 1037
Validity of look-out circular/communication - Whether the grounds urged in the writ petition and reiterated in this intra-court appeal by the petitioner, merits acceptance or rejection? - HELD THAT:- It is the specific act emerging from the said OMs, which the petitioner seeks to assail in the writ petition and when examined in this background, it would emerge from the authoritative pronouncement of the Apex Court in the case of MANEKA GANDHI's wherein the Hon'ble Apex Court (per Hon'ble Mr. Justices Bhagawati, Untwalia and Fazal Ali) have observed that procedure established by law under Article 21 must meet the requirement of Article 14 and it has been further held the right to travel abroad cannot be regarded as forming part of Articles 19(1)(a) or 19(1)(g), since such right is not guaranteed and such right cannot be inferred as a peripheral or concomitant right under Article 19(1).
In the instant case the cause for issuance of LOC against the petitioner has been indicated by the third respondent in its statement of objections vide paragraph 5 and extraction of the same would only burden this judgment and as such we desist from doing so - Thus, respondent No. 3 and 4 being empowered to issue the LOCs by virtue of OM dated 22.11.2018 and "larger public interest", which also governs the "economic interests of India" same have been issued, which cannot be the subject matter of judicial scrutiny inasmuch as, the subjective satisfaction arrived at by respondent Nos. 3 and 4 based on objective assessment, being inconsonance with the extant OMs.
The LOCs issued against the petitioner by respondent Nos. 3 and 4 and the consequential endorsement dated 08.12.2020 issued by respondent No. 1, as affirmed by the learned Single Judge does not suffer from any infirmities either in law - Writ appeal dismissed.
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2021 (5) TMI 1036
Classification of goods - API/boiled supari - Chikani supari - Unflavoured supari - Flavoured supari - merits classification under Chapter 8 of the Customs Tariff or not? - HELD THAT:- No ruling can be given in respect of classification of API/boiled supari, which, according to both the applications, undergo the same processes on the raw/green nut.
The arguments of the Learned Counsel for the applicants that the products intended for import by them undergo roasting and boiling and therefore do not merit classification under Chapter 8 of the Customs Tariff need to be rejected when the notes to Chapter 8 are read together with the relevant HSN Explanatory Notes. In view of the relevant Chapter Notes and HSN Explanatory Notes, the processes of roasting and boiling alone are not sufficient to take the products under consideration here out of the purview of Chapter 8. So far as the argument that Supplementary Note 2 to Chapter 21 shouldn’t be made redundant is concerned, it is very clear that so far as chikni supari and unflavoured supari are concerned, there is no doubt regarding inapplicability of the said note to these products.
Hon’ble Calcutta High Court in the case of Killing Valley Tea Co. v. Secretary to State [1920 (5) TMI 1 - CALCUTTA HIGH COURT] has held that a tea leaf remains the same even after being subjected to mechanical processes like withering, crushing, roasting, fermenting, etc., is a definite pointer to the principle that need to be applied for classification in such matters.
Hon’ble Supreme Court’s in their decision dated 11-9-1979 in the case of D.S. Bist and Ors. [1979 (9) TMI 168 - SUPREME COURT] has held that all agricultural produce undergoes some processing on or outside the farm in order to make it non-perishable, transportable, and marketable and just because processing is a bit longer or complicated wouldn’t rob the produce of its agricultural character. The observations of the Hon’ble Supreme Court in the case of M/s. Crane Betel Nut Powder Works [2007 (3) TMI 6 - SUPREME COURT], that the process of cutting betel nuts into small pieces and addition of essential/non-essential oils, menthol, sweetening agent, etc., did not result in a new and distinct product having a different character and use is also an extension of the same line of reasoning. This decision of the Hon’ble Supreme Court has been subsequently followed by the Chennai Bench of the Hon’ble Tribunal in the case of Azam Laminators [2019 (3) TMI 782 - CESTAT CHENNAI] where scented betel nut was being manufactured by cracking of dried betel nut into small pieces, and thereafter, gently heating it with addition of vanaspati oil, sweetening and flavouring agents and this product classifiable under sub-heading 0802 90 19 of Central Excise Tariff which is aligned with customs tariff.
Thus, even flavoured supari merits classification under Heading 0802 of the Customs Tariff and not under Heading 2106 as argued by the applicants - ruling in respect of API/boiled supari - application disposed off.
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2021 (5) TMI 1035
Quantum of sentence - conviction of offences Under Sections 363, 366 and 376(1) of the Indian Penal Code, 1860 - already undergone 13 years and 2 months of imprisonment - Section 31(1) Code of Criminal Procedure - HELD THAT:- It is beyond a shadow of doubt that Section 31(1) Code of Criminal Procedure vests complete discretion with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal Rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct.
For what has been provided in Section 31(1) Code of Criminal Procedure read with the expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively - if the Court of first instance does not specify the concurrent running of sentences, the inference, primarily, is that the Court intended such sentences to run consecutively, though, as aforesaid, the Court of first instance ought not to leave this matter for deduction at the later stage. Moreover, if the Court of first instance is intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e., the sequence) in which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court.
Even when Sub-section (2) of Section 31 Code of Criminal Procedure is not directly applicable, some of the relevant features of the present case are that the offences in question were committed in the year 2008 i.e., before amendment of Indian Penal Code by the Amending Act 13 of 2013; the Appellants have continuously served about 13 years and 2 months of imprisonment; and nothing adverse in regard to their conduct while serving the sentences has been placed on record. In the given set of circumstances, we have pondered over the question as to what ought to be the order for a just balance on the requirements of punishment on one hand and reasonable release period for the Appellants on the other, while keeping in view the overall scheme of awarding of punishments and execution thereof, including the ancillary aspects referable to Sections 433 and 433A Code of Criminal Procedure as also Section 55 Indian Penal Code whereunder, serving of a term of 14 years even in the sentence of imprisonment for life is the bottom line (subject to the exercise of powers of commuting by the appropriate Government in accordance with other applicable principles).
In exercise of powers Under Article 142 of the Constitution of India, we provide for modification of the punishment awarded to the Appellants in the manner that the maximum period of imprisonment to be served by them in relation to offences in question shall be 14 years and not beyond. It goes without saying that this order of modification is passed only in the peculiar facts and circumstances of this case.
The requirement of payment of fine and the default stipulations, as applicable to the Appellant No. 1 in terms of the order of the High Court and to the Appellant No. 2 in terms of the order of the Trial Court, shall remain intact. Learned Counsel for the Appellants submits that as per his instructions, the Appellant No. 1 has deposited the fine amount. The submission is taken on record. However, it is made clear that in default in payment of fine, the defaulter-Appellant shall undergo respective default sentences consecutively and in the order they have been imposed, for offences Under Sections 363, 366, and 376(1) Indian Penal Code.
Appeal allowed in part.
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2021 (5) TMI 1034
Maintainability of petition - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The order of learned Single Judge rejecting the plea of maintainability of the Arbitration Petition (L) No. 10089 of 2020 in the impugned order is stayed. Parties would be at liberty to apply for early Trupti 2/3 2-appl-11080-2021.doc hearing of this Appeal after the issue raised before the Hon'ble Supreme Court arising out of the order passed by the NCLAT is decided.
Hearing is expedited - Interim application disposed off.
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2021 (5) TMI 1033
Appropriate Jurisdiction - whether the departmental proceedings can be permitted to continue in the wake of charges have been framed by the trial court or not? - HELD THAT:- A perusal of the charges framed in criminal trial and Articles of Charge issued to petitioner in departmental enquiry would show that the petitioner has been implicated in both the criminal as well as departmental proceedings on similar set of facts. However, this is bound to happen. When an employee is roped in a criminal offence, the disciplinary authority by taking cognizance of such initiation of criminal offence, proceeds with the departmental proceedings to take appropriate action as per the statutory rules governing the post an employee is holding. In case the offence is of serious nature, which may impute the integrity / character of an employee, then the department suspends the employee immediately and initiates further departmental proceedings.
The reason for initiation and early conclusion of departmental proceedings in such cases seems to be three-fold: (i) To weed out an employee whose integrity / character has been put to doubt, prima facie, on account of some criminal proceedings having been initiated against him/her; (ii) At the same time, when an employee is suspended, he/she is entitled to atleast half of the pay that it was drawing before being suspended and thus, any inordinate delay in conclusion of departmental proceedings, where charges are of very serious nature, would unnecessarily entail burden on exchequer and thus will be against public interest; and (iii) The departmental proceedings is to maintain discipline in the service and efficiency of public service and thus, its initiation and conclusion as expeditiously as possible is in public interest.
In the present case, it is not disputed that challan was presented in the year 2019 and charges were framed on 31.01.2020 (P-11), however till date no progress has been made in the criminal trial on account of one reason or the other. Although, the delay in criminal trial cannot be attributed to the petitioner, at the same time, the department cannot be expected to wait endlessly for the trial to conclude - The petitioner, being a judicial officer holding the rank of Additional District Judge and posted as Registrar (Recruitment) was required to have the highest standards of propriety as well as moral conduct. One of the documentary evidence that has come on record is by way of call detail record of petitioner – Dr. Balwinder Sharma whereby 726 and 34 calls / SMSs have been made between him and accused-Sunita, who incidentally was a topper in the HCS (Judicial) Preliminary Examination. This prima facie reflects towards a conduct not behoving the post that petitioner – Dr. Balwinder Sharma was holding.
Charge 4 of Articles of Charge would show that the disciplinary authority has also charged the employee for immoral conduct and thereby violating the Government Employees (Conduct) Rules, 1966, Punjab as he had alleged developed intimate relations with Ms. Sunita. Further, petitioner has also been charged for failing to maintain absolute integrity as expected from a judicial officer and thus, has acted in a manner unbecoming of a judicial officer. These charges, by no stretch of imagination, can be gone into or enquired or punished by the Criminal Court. Hence, seen from this angle as well, we do not find any reason to stay disciplinary proceedings against the petitioner.
There is no legal bar to hold disciplinary as well as departmental proceedings simultaneously, however, in view of the fact that all the three Courts below had exercised their discretion in favour of staying the ongoing disciplinary proceedings, therefore, directions were issued for expeditious conclusion of trial.
Petition dismissed.
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2021 (5) TMI 1032
Waiver of Demurrage Charges levied by ICDs/CFSs/Port/Terminal Operators during lockdown - HELD THAT:- Hearing is concluded - Whichsoever counsel wants to say anything in addition to what has already been argued/stated in the written arguments filed, may, within one week file a note of arguments of not more than three pages.
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2021 (5) TMI 1031
Constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 - both WB-HIRA and a Parliamentary enactment, the Real Estate (Regulation and Development) Act, 2016 are relatable to the legislative subjects contained in Entries 6 and 7 of the Concurrent List (interchangeably referred to as ‘List III’) of the Seventh Schedule to the Constitution or not - WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2) - State enactment containing provisions which are either directly inconsistent with the corresponding provisions of the Central enactment or a virtual replica of the Central enactment - whether it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up a parallel legislation?
HELD THAT:- Before the WB-HIRA, the State legislature had also enacted the WB 1993 Act. Upon receiving the assent of the President, the Act was published in the Calcutta Gazette, Extraordinary on 9 March 1994. Some of the salient provisions of the Act are detailed below:
(i) Section 3 provides for registration of promoters who construct or intend to construct a building and for obtaining permission for construction;
(ii) Section 4 provides for the validity of the certificate of registration and for cancellation;
(iii) Section 5 provides for appeals;
(iv) Section 6 provides for adjudication of disputes by an officer appointed by the State government for adjudication;
(v) Section 7 provides that the promoter shall before taking any advance payment for deposit, which shall not be more than 40 per cent of the sale price, enter into a written agreement for sale which shall be registered;
(vi) Section 8 restrains additions or alterations without the consent of the transferee and for rectification of defects;
(vii) Section 9 contains a prohibition on a promoter creating a mortgage or charge without the consent of the purchaser after entering into an agreement;
(viii) Section 10 requires the formation of a co-operative society;
(ix) Section 11 provides for the promoter to covey title to the co-operative society;
(x) Section 12 provides for insurance against loss or death;
(xi) Section 13 provides for penalties;
(xii) Section 14 provides for offences by companies;
(xiii) Section 15 provides for rule making powers;
(xiv) Section 16 provides for exemption to constructions by the State Government Housing Board and by the Housing and Urban Development Corporation; and
(xv) Section 17 provides for repeals and the earlier legislation of 1972 is repealed.
The above provisions are repugnant to the corresponding provisions which are contained in the RERA. These provisions of the WB 1993 Act impliedly stand repealed upon the enactment of the RERA in 2016, in accordance with Sections 88 and 89 read with Article 254(1) of the Constitution. Hence, it is clarified with abundant caution that the striking down of the provisions of WB-HIRA in the present judgment will not, in any manner, revive the WB 1993 Act, which was repealed upon the enactment of WB-HIRA since the WB 1993 Act is itself repugnant to the RERA, and would stand impliedly repealed.
Thus, it is concluded that WB-HIRA is repugnant to the RERA, and is hence unconstitutional. It is also held and declared that as a consequence of the declaration by this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.
Since its enforcement in the State of West Bengal, the WB-HIRA would have been applied to building projects and implemented by the authorities constituted under the law in the state. In order to avoid uncertainty and disruption in respect of actions taken in the past, recourse to the jurisdiction of this Court under Article 142 is necessary. Hence, in exercise of the jurisdiction under Article 142, it is directed that the striking down of WB-HIRA will not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment.
Petition allowed.
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2021 (5) TMI 1030
Disallowance made on account of prior period expenses - crystalization of work/services rendered in earlier year - mercantile system of accounting followed - HELD THAT:- We find that similar disallowances made by the ld. AO were deleted by this Tribunal in assessee’s own case upto Asst Year 2005-06 [2021 (2) TMI 733 - ITAT MUMBAI] Respectfully following the aforesaid decision, we find no infirmity in the order of the ld. CIT(A) deleting the disallowance made on account of prior period expenses. Accordingly, the grounds raised by the Revenue are dismissed.
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2021 (5) TMI 1029
Fraudulent and Unfair Trade Practice relating to Securities Market - orders restraining the company Chromatic India Limited from accessing the securities market for a period of 5 years. The directors were restrained from buying and selling for a limited period - HELD THAT:- Resolution dated August 13, 2010 by itself does not create any suspicion nor creates any fraudulent act. Being a signatory to the said Resolution by itself does not violate any provision of the SEBI Act or the PFUTP Regulations. However, being part of the Audit Committee he had access to the financial status of the company. It is deemed to be in his knowledge that the GDR proceeds of the company were lying in an account in European American Investment Bank (“Euram Bank”) and the same was not being utilized for the business purposes of the company rather it was being utilized as collateral for the loan given to Vintage. Being part of the Audit Committee he should have raised a red flag by observing that the funds were not being utilized by the company for the purpose for which the GDR were issued.
The appellant was also the Chairman of the audit committee of the company. The WTM found that being the Chairman of the audit committee, he did not place any objection as to why the GDR proceeds did not reach the company and how the proceeds were utilized. We are thus, of the opinion that in the light of the findings given by the WTM, the appellant Kishore Hegde was part of the scheme through which issue of GDR by the company was effected through a fraudulent arrangement of loan agreement and pledge agreement. We are also of the opinion that the conduct of the appellant Kishore Hegde was inimical to the interest of the company, to the investors, as well as to the shareholders and, the action of the appellant Kishore Hegde was in violation of Section 12A of the SEBI Act read with Regulations 3 and 4 of the PFUTP Regulations. - the orders of the WTM and the AO does not suffer from any error of law.
Managing director / directors are concerned we find from the perusal of the comparative chart that some directors/ managing directors have been penalized a sum of Rs. 25 lakhs and in some cases Rs. 1 crore - Upon investigation it was found that those entities were non-existent and therefore false disclosures were made. Further, the company violated the provisions of clause 36 and 50 of the Listing Agreement by not making disclosures and making misleading disclosures. It was also stated that in the instant case the trading of the GDR scrips of the company was suspended. Considering the aforesaid, which is distinct from the penalty imposed to other directors in other matters and no similarity having been pointed out by the appellant we are of the opinion, that the penalty imposed by the AO under Section 12 of the SEBI Act read with 3 and 4 of the PFUTP Regulations and under Section 21 of the SCRA read with Clauses 36 and 50 of the Listing Agreement needs no modification. We are further of the opinion, that when the findings given by the WTM and the AO has not been pressed before us in such circumstances, the discretionary relief is not available to the appellants namely the company and its whole time director Vinod Kumar Kaushik. The appeals of the company and Vinod Kumar Kaushik cannot be sustained.
AO penalized the appellant Vipin Sharma a sum of Rs. 3 lakhs only on the basis that he was present in the meeting of the Board of Directors when the Resolution dated August 13, 2010 was passed for opening a bank account with Euram Ban - We are of the opinion that in order to implicate a person, namely, a director of any fraudulent act it is necessary for the authority to further find any evidence which would show that the said person or director was involved in the fraud with regard to the GDR issue or that he was involved in the defalcation of the funds which was raised through GDR issue. In the instant case, we find that there is no such evidence against the appellant Vipin Sharma other than the fact that he was part of the Resolution dated August 13, 2010 which has been disputed by the appellant. We are of the opinion that the Resolution dated August 13, 2010 by itself does not create any suspicion nor create any fraudulent act. The Resolution by itself does not violate any provision of the SEBI Act or PFUTP Regulations. In view of the aforesaid, the order of the WTM giving a caution solely on the ground of being present when the Resolution dated August 13, 2010 was passed cannot be sustained. The finding of the WTM that he was aware of the objectives behind the passing of the Resolution dated August 13, 2010 is based on surmises and conjectures. The order of the AO imposing a penalty of Rs. 3 lakhs is also unwarranted in the facts of the present case. The orders of the WTM and the AO in this regard cannot be sustained.
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2021 (5) TMI 1028
The present matter was heard through video conference due to Covid-19 pandemic. At this stage it is not possible to sign a copy of this order nor a certified copy of this order could be issued by the registry. In these circumstances, this order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Parties will act on production of a digitally signed copy sent by fax and/or email.
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2021 (5) TMI 1027
Seeking withdrawal of application which was filed for initiation of CIRP against Corporate Debtor - Section 12A of the Insolvency and Bankruptcy Code 2016 read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- List the matter on 17th May 2021 for hearing. During this period, no COC meeting would be held by the IRP.All the parties are requested to file a short synopsis on or before 16th May 2021. Mr. Dutta is also at liberty to file a short synopsis on behalf of allottees.
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2021 (5) TMI 1026
Recovery of dues - priority of charges - attachment of property in question which already stands mortgaged with petitioners by respondent No. 4, by creating and claiming their first charge upon the same - Body Corporates constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 or not - first charge upon the property of the dealer in terms of the provisions of the RDB Act and the SARFAESI Act, as amended from time to time or not - whether the first charge shall be that of respondents No. 1 to 3 in terms of the provisions of Section 26 of the Himachal Pradesh Value Added Tax Act, 2005?
HELD THAT:- By virtue of the amendments incorporated in the Central Statutes, the Financial Institutions now have priority over the rights claimed by the Revenue. Section 26E of the SARFAESI Act 2002 and Section 31B of the Recovery of Debts and Bankruptcy Act, 1993 create “First Charge” by way of priority in favour of the Banks and Financial Institutions de hors any non obstante Clause contained in any Local Statute. The Legislators were aware of the lacunae which were existing in the SARFAESI Act and the Recovery of Debts and Bankruptcy Act, on account of which, the Banks/Financial Institutions were not having first charge by way of priority to recover and satisfy their debts visavis the Revenue in lieu of the statutory provisions contained in the Local Acts. It was to over ride this difficulty that the amendments were incorporated.
A perusal of the provisions of Section 38 of the KVAT Act and Section 26 of the HP VAT Act demonstrates that these provisions are almost pari materia. This Court concurs with the reasoning of the Hon’ble High Court of Kerala that after coming into force of Section 31B of the RDB Act read with Section 26E of the SARFAESI Act, the first charge is created by way of priority in favour of the Banks/Financial Institutions to recover and satisfy their debts, notwithstanding any local statutory “first charge” in favour of the Revenue - It is also necessary to take note of one fact that though Section 26E of the SARFAESI Act has come into force from 24.01.2020, yet the same will not have any effect on the issue of the Banks/Financial Institutions having first charge on the property of the dealer, as the provisions of Section 31B of the RDB Act shall over ride the provisions of Section 26 of the HP VAT Act, 2005.
The provision of Section 48 of the Gujarat Value Added Tax Act,2003, is also pari materia to the provisions of Section 26 of the Himachal Pradesh Value Added Tax Act, 2005. The Hon’ble High Court of Gujarat in BANK OF BARODA THROUGH ITS ASSISTANT GENERAL MANAGER PREM NARAYAN SHARMA VERSUS STATE OF GUJARAT & 3 OTHER (S) [2019 (9) TMI 1049 - GUJARAT HIGH COURT], while interpreting the provisions of Section 48 of the Gujarat VAT Act visavis the provisions of Section 26 of the SARFAESI Act and Section 31B of the RDB Act has held that the first priority over the secured assets shall be of the Bank and not of the State Government on account of Section 48 of the Gujarat VAT ACT, 2003.
There is no ambiguity that in view of the provisions of Section 26E of the SARFAESI Act 2002 and Section 31B of the Recovery of Debts and Bankruptcy Act, 1993, a secured creditor has priority over the rights claimed by the Revenue.
This Court has no hesitation in holding that the petitioners being “Secured Creditors” have preference over the respondent-State with regard to the debts due from respondent No. 4 - Petition allowed.
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2021 (5) TMI 1024
Validity of assessment u/s 143(3) r.w.s.144B - Penalty proceedings u/s 274 read with Section 270A and 271 AAC (1) - petitioner claims that there has been a breach of the principles of natural justice. It is the petitioner’s case that the objections filed on 22.04.2021 were not taken into account by respondent no. 1 before passing the impugned assessment order - HELD THAT:- Without getting into the tenability of the objections on merits, in our view, the best course forward would be to set aside the impugned assessment order dated 22.04.2021, and have respondent no.1 pass a fresh assessment order after taking into account the objections filed qua the show cause notice dated 19.04.2021 on behalf of the petitioner. It is ordered accordingly.
The impugned assessment order is set aside. The respondent no. 1 will issue a notice via e-mail to the petitioner, and grant a personal hearing to the authorised representative of the petitioner, before proceeding to pass a fresh assessment order. Needless to add, respondent no. 1 will consider the objections dated 22.04.2021, filed qua the show-case notice dated 19.04.2021.
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2021 (5) TMI 1023
Validity of faceless assessment u/s 144B - Denial of natural justice - HELD THAT:- As Petitioner submits that the impugned order has been passed without giving proper opportunity of hearing, despite the same had been sought. He submits that the order is not in adherence to principles of natural justice and the prescribed procedure.
In view of aforesaid, till the returnable date, further action pursuant to the impugned order be kept in abeyance. Stand over to 10th June 2021.
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2021 (5) TMI 1022
Validity of assessment u/s 144C - Validity of order without passing Draft Assessment Orders as contemplated u/s 143(3) r.w.s 92 CA (4) and 144 C (1) - HELD THAT:- As decided in M/S DURR INDIA PRIVATE LIMITED [2021 (6) TMI 830 - MADRAS HIGH COURT]once the case was remitted back to the respondents, it was incumbent on the part of the 1st respondent to have passed a draft Assessment Order under section 143 (3) read with Section 92CA (4) and Section 144C (1) of the Income Tax Act, 1961. It was not open for the 1st respondent to bypass the statutory safeguards prescribed under the Act and thereby deny the right of the petitioner to approach the Dispute Resolution Panel. It is only thereafter, Final assessment order can be passed by the 1st respondent to Assessing Officer.
Since the dispute in the present case to the assessment years 2010-11 and 2011-12, respondent shall endeavour pass Draft Assessment Order under section 143 (3) read with Section 92 CA(4) and 144 C (1) of the Income Tax Tax Act, 1961 within a period of 3 months from the date of receipt of a copy of this order.
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2021 (5) TMI 1021
Faceless assessment done u/s 144B - Learned counsel relies on judgments passed by the High Court of Delhi, Madras and Bombay to submit that the faceless assessment done u/s 144B has been examined by the High Court without insisting upon filing of an appeal which is not only cumbersome but also virtually is in the same prospective as there is no personal hearing provided - Learned counsel further submits that the petitioner-firm has not been given any fair opportunity to put up its submissions and defence while show cause notice was given to the petitioner - HELD THAT:- Issue notice of the writ petition as well as stay application, returnable within eight weeks. Additionally, notices may be served through e-mail also.
In the meanwhile, the effect and operation of assessment order dated 15.04.2021 shall remain stayed.
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