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2021 (9) TMI 1504
Violation of Regulation 11(1) of the SAST Regulations - Non issue of open offer - inflated price of the shares - HELD THAT:- The impugned order of the learned WTM would show that he has gone through the terms and conditions of the ZOCD Agreement, and considered the plea of the respondent as to why ZOCD Agreement and SUA were required to be executed in view of the up linking guidelines of Ministry of Information and Broadcasting. The said guidelines required that at least 51% of the total equity share capital of such a media company was required to be held by largest Indian shareholders. All those terms are put in the order.
Upon going through the terms and conditions of ZOCD Agreement, the learned WTM found that Mr. Raghav Bahl continued to be in control of TV 18, NW18 etc. on behalf of the holding companies. IMT and RIL did not had any say in the management affairs of TV 18, NW18 under the said ZOCD Agreement. The underlying existing shareholding continued to be in the hands of Mr. Raghav Bahl and the holding entities. It was found that ZOCD Agreement did not carry any voting rights. The voting rights of Mr. Raghav Bahl entities were not stifled by the said agreement. Thus, there was not any effective change in control of NW18 as a result of the execution of the ZOCD Agreement.
CCI had observed that in view of the conversion option contained in ZOCD Agreement to receive equity shares of the target company, the said amounted to the indirect acquisition of shares of the target company. The learned WTM considered the same. ZOCDs were in the nature of convertible into equity shares at any time, and only upon conversion of the same IMT would have been able to hold more than 99.99% shares of the diluted equity of the promoter company of NW18 etc. This option however was not exercised at any time before making the public announcement, thus, the ZOCD Agreement itself did not entail into any indirect control of IMT or RIL in NW18 and, therefore, no disclosure was required to be made.
In our view, the reasoning of the learned WTM cannot be faulted with. The ZOCD Agreement was in the nature of investment by IMT in the holding companies of TV18, NW18. Said ZOCD Agreement had given right to IMT, the subscriber of the ZOCDs to convert ZOCDs into equity in a given period. The control of TV18 and NW18, continued with Mr. Raghav Bahl and his entities. IT had no say in the voting rights etc. and, therefore, the conclusion of the learned WTM cannot be faulted with.
While claiming cost from the appellants, the respondents blamed the appellants for indulging into speculative litigation - As detailed earlier, Mr. Dwarkadas even pointed out the observations of the Hon’ble Supreme Court of India in the earlier round of litigation made against the present appellants. We however find that in so far as the present round is concerned the appellants’ case was strengthened by the observation of the CCI as well as the, prima-facie, observation made by this Tribunal earlier. In the circumstances, we do not find that the present litigation is also a speculative litigation.
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2021 (9) TMI 1503
Seeking restraint on construction of a toll plaza at 194 km of NH30 in the four-laning of Patna-Bakhtiyarpur Section of NH30, in violation of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 - principal bone of contention was the transgression of Rule 8 of the Rules - HELD THAT:- In MAHARASHTRA STATE BOARD OF SECONDARY ANDHIGHER SECONDARY EDU VERSUS. K.S. GANDHI AND ORS. [1991 (3) TMI 387 - SUPREME COURT], the question arose about the duty to give reasons in the following factual matrix. The Appellant, in the said case, conducted examinations. It was found that the moderators marksheets, relating to certain examinees, were tampered with. The results were withheld. An inquiry was conducted through seven Inquiry Officers, who proceeded to conduct an inquiry. The inquiry itself involved issuing notices to the students, inter alia. The Inquiry Officer submitted reports finding that the moderators marksheets had been fabricated. The students challenged the action of the Authority to withhold the results, as a measure ofpunishment, accepting the Inquiry Report. Dealing with the argument that no reasons were recorded by the Inquiry Officers, this Court held The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration - It will, at once, be noted that, the facts in the said case, were not disputed, and therefore, the omission to record reasons, was found neither illegal nor violative of principles of natural justice.
In KRANTI ASSOCIATES PVT. LTD. VERSUS MASOOD AHMED KHAN [2010 (9) TMI 886 - SUPREME COURT], the National Consumer Disputes Redressal Commission (NCDRC), dismissed Revision Petition, only taking note of the fact that there were concurrent findings. This Court went on to find that the Order was vitiated but it is obvious that the Order of the Commission cannot be described as an administration decision.
Persons, who may have a right or an interest, would know, what are the reasons which impelled the Administrator to take a particular decision. Judicial review, in India, which encompasses the wide contours of public interest litigation as well, would receive immeasurable assistance, if the reasons for particular decisions, are articulated to the extent possible. The giving of reasons also has a disciplining effect on the Administrator. This is for the reason that the reasons would capture the thought process, which culminated in the decision and it would help the Administrator steer clear of the vices of illegality, irrationality and also disproportionality. Reasons could help establish application of mind. Conversely, the absence of reasons may unerringly point to non-application of mind - It is a matter of discretion to be exercised, no doubt, taking into consideration the maximization of toll collection also and avoiding of leakage of toll, bearing in mind the fact that the Concessionaire is permitted to collect the toll only for the period of the Concessionaire Agreement Under Rule 16. To show application of mind, there must be material. Even in the absence of reasons, recorded as such, there must be proper pleadings with materials, unless facts are not in dispute.
Whether invocation of the second proviso to Rule 8 in the facts illegal? - HELD THAT:- By Notification dated 07.05.2010, in exercise of power Under Section 11 of the National Highway Authority of India Act, 1988, the Central Government entrusted the project, which consisted of the stretch from 181.300 km to 231.950 km. of the NH 30, in the State of Bihar, to NHAI. On 12.02.2011, NHAI made a general Notification inviting objections from the general public towards the proposed construction to the toll plaza at 194 km. This is on the basis of the DPR, which, after detailed study, recommended the construction of the toll plaza at 194 km - the only requirement to locate the toll plaza within the municipal limits, is that a Section of the national highway, inter alia, is constructed within the municipal limits and the construction must be primarily for the residents living in the said municipal limits. There is hardly any dispute that the national highway, which means the project road, commences from 181.300 kms from the Patna side and it goes to the east and till 196 kms, it is located within the municipal limits. After 196 kms, it branches of towards the south, which is the new bypass consisting of nearly 36 kms. The total stretch consists of a little over 50 kms. For nearly 14 kms, the road project road passes through the municipal limits.
In the Rules of 2008, Rule 2c defines a bypass as a Section of the national highway bypassing a town or a city. Therefore, the question may arise, whether, when Rule 8 speaks of construction of a Section of the national highway, which is within a municipal or town area limits, it will include a bypass, in view of the new definition. There is indication in the case that from 178 km, there was an existing bypass. The new construction was over the existing bypass. However, we do not explore this matter further as none of the parties addressed us on this and we proceed on the basis that there was construction of a National Highway partly within the municipal limits.
It is thus concluded as follows:
(1) The construction of the toll plaza at 194 kilometre was not illegal or arbitrary;
(2) The direction by the High Court, to shift toll plaza, cannot be upheld and it is liable to be set aside;
(3) The Appellants will look at the barricades (closing of service roads) in regard to the toll plaza and permit such barricades only as are permitted in Rule 17 of the Rules. Any unauthorised barricades will be removed without any delay and at any rate within 2 weeks from today.
(4) The First Appellant will issue suitable directions to all Executive Authorities to maintain distinct records containing the decision, invoking the second proviso to Rule 8 of the Rules. Such direction shall be issued within 3 weeks from today.
(5) The Appellants as also the Concessionaire are directed to extend the fullest benefits of the concessions Under Rule 9 of the Rules.
Appeal allowed.
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2021 (9) TMI 1502
TP Adjustment - provision of back-office support services/income received from ITES segment - comparable selection - HELD THAT:- Exclusion of Universal Print, TCS e-serve and Infosys BPO from the list of comparables and remand BNR Udyog Ld. AO/TPO to consider it afresh in light of the observations made by coordinate bench of this Tribunal reproduced hereinabove.
Negative working capital computed by the Ld.TPO, without appreciating the fact that assessee is a captive service provider - We find that in the case of Software AG Bangalore Technologies (P.) Ltd. [2016 (3) TMI 1384 - ITAT BANGALORE] passed by this Tribunal, it has been held that negative working capital adjustment shall not be made in case of a captive service provider as there is no risk and it is compensated on a total cost plus basis.
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2021 (9) TMI 1501
Revision u/s 263 - AO had passed an order of assessment order, admittedly, against non existing entity - ITAT had passed an order setting aside the order of CIT on the grounds that any order against non existent entity is bad in law - HELD THAT:- We totally agree with the view expressed by ITAT that framing of assessment against non existing entity would go to the root of matter and was a jurisdictional defect. The assessment proceedings against non existing company was illegal and any order passed therein was without jurisdiction and null and void as held by this court in the matter of Alok Knit Exports Ltd. [2021 (8) TMI 777 - BOMBAY HIGH COURT]
ITAT has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law.
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2021 (9) TMI 1500
Waiver of interest under Section 7[2] of the KTEG Act - failure to pay tax along with its returns within the time prescribed under Section 7 of the Act on the value of cutting tools caused entry by it during the relevant years in question - HELD THAT:- The provisions of Sections 7[1], to 7[4] of the KTEG Act, make it clear that it was mandatory on the part of the registered dealer to get himself registered under the KTEG Act and send every month statement/returns along with tax payable by him i.e., in advance within 20 days after close of the preceding month to which such tax relates. There is default on the part of the registered dealer in not remitting the tax within 20 days after the close of the preceding month to which such tax relates. Sub-section [2] of Section 7 of the KTEG Act would attract for making the registered dealer liable to pay interest on the short payment of tax. These provisions are identical to Section 12-B[2] of the KST Act.
The Division Bench of this Court in Shree Renuka Sugars Limited, Belagavi [2018 (2) TMI 450 - KARNATAKA HIGH COURT], has considered the scope and effect of these provisions in the light of the judgment of the Hon'ble Apex Court in the case of J.K. Synthetics Ltd. Vs. Commercial taxes Officer [1994 (5) TMI 233 - SUPREME COURT] and another Division Bench ruling of this Court in the case of State of Karnataka Vs. Mandovi Motors (Private) Limited, Mangalore, [2015 (11) TMI 1076 - KARNATAKA HIGH COURT] and has arrived at a conclusion that in the absence of provisional assessment made under Section 12-B[3] of the KST Act [therein] to determine the tax liability rejecting the monthly return incomplete or incorrect levying interest on the short payment of tax, such short payment of tax determined by the Assessing Authority while concluding the regular assessment would not attract the levy of interest. It is held that an harmonious reading of Sub-sections (1), (2), (3), (3A) and (4) of Section 12-B makes it clear that the phrase 'paid' and 'payable' employed in sub-Section (2) shall be the determination of advance tax made subsequent to final assessment by the Assessing Authority.
It is obvious that the assessee pays the tax whichever is liable according to him on the information returns filed by him, it is highly unrealistic to expect him to pay the tax on the basis of final assessment to be done by the Assessing Authority at a future date or in other words, the assessee cannot predict the liability accruing on the basis of the final assessment proceedings or the assessee cannot affirm such eventualities which according to him was unexpected/uncalled unless provisional assessment is made. If any tax is made finally on final assessment made by the Assessing Authority, penal provisions under Section 7[3] and 8[2] of the KTEG Act ought to have been invoked, but no power under Section 7[2] of the KTEG Act would have been exercised by the Assessing Authority - reserving liberty to the Revenue to examine the levy of interest and penalty as per the provisions of Section 8[2] and 7[3] of the KTEG Act respectively, has set aside the levy of interest under Section 7[2] of the KTEG Act which cannot be faulted with.
The question of law answered in favour of the assessee and against the Revenue - petition allowed.
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2021 (9) TMI 1499
Violation of principle of proportionality - criteria adopted for selection of President and Members of the State Commission and District Commission, constituted under the Consumer Protection Act 2019 - HELD THAT:- The Hon'ble Supreme Court of India has in various judgments explicitly held that tribunals have been established with the object of discharging quasi-judicial duties by acting judicially which differentiates them from other administrative bodies. A tribunal is neither a Court nor an executive body, but they have an obligation to act judicially. Tribunals are endowed with the judicial functions as distinguished from purely administrative or executive functions. As a quasi-judicial body, the Tribunal performs the judicial functions for deciding the matters in a judicious manner. It is not bound by law to observe all the technicalities, complexities, refinement, discrimination and restrictions that are applicable to the Courts of record in conducting trials, but at the same time, a tribunal is required to look at all matters from the standpoint of substance as well as form and be certain that the hearing is conducted and the matter is disposed of with fairness, honesty, and impartiality.
The Hon'ble Supreme Court of India in the case of ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. & OTHERS [2019 (11) TMI 716 - SUPREME COURT] has observed that the delay and backlog in the administration of justice is of paramount concern for any country governed by the rule of law. In our present judicial set up, disputes often take many decades to attain finality, travelling across a series of lower Courts to High Court and ending with an inevitable approach to the Supreme Court. Such Crawling pace of justice delivery system only aggravates the misery of affected parties. It is further observed that it would, however, be wrong to place the blame of such delay squarely on the judiciary, an empirical examination of pending cases clearly demonstrates that the ratio of judges against the Country's population is one of the lowest in the world and the manpower (support staff) and infrastructure provided is dismal.
The Hon'ble Supreme Court of India in the case of L. CHANDRA KUMAR VERSUS UNION OF INDIA AND OTHERS [1997 (3) TMI 90 - SUPREME COURT] has observed that the numerous Tribunals with lack of uniformity in the matter of qualification, appointments, tenure and service conditions is causing the major concern in effective working of the present Tribunal system.
Admittedly, in this case, neither the Union of India nor the State Government in their respective replies, have come up with a case or have pointed out that, after the enactment of Act of 2019 and Rules of 2020, the directions issued by the Hon'ble Supreme Court of India in the case of UPCPBA, have become non-operative or in-effective, relating to the need for having uniformity of rules across the country in regard to the modalities to be followed, ensuring that persons appointed fulfill the qualification prescribed, owing to any valid and justifiable reason - it is amply clear that there is no change in legislative scheme or performance of judicial function of the State Commission or District Commission, constituted under the Act of 2019, as they were performing under the Act of 1986. Resultantly, we have no hesitation to hold that the directions issued by the Hon'ble Supreme Court of India in the case of UPCPBA [2017 (4) TMI 306 - SUPREME COURT], for having uniformity across the country in standards, selection and appointment of President and Members on Fora, are equally binding with full force, even after the enactment of the Act of 2019.
The Hon'ble Supreme Court of India, in the case of UPCPBA, has given sufficient reasons to have uniformity across the country as regards standards and modalities in appointments of Presidents and Members of Consumer Dispute Redressal Forum, under the Act of 1986. The Union of India while framing Rules of 2020 under the Act of 2019, ought to have framed the rules in consonance with the directions of the Hon'ble the Supreme Court of India, issued in the case of UPCPBA, to cure defects pointed out in the said judgment, which has admittedly not been done.
It is made clear that "Judicial Office" is essentially a public trust and therefore, it is expected that a judge must be a man of high integrity, honesty and shall possess several qualities including legal expertise, ability to handle cases, proper personal conduct and ethical behaviour and shall ensure impartiality, fairness and reasonableness in consideration. Whereas the technical member ensures the availability of expertise and experience related to the field of adjudication for which the Special Tribunal is created.
In the case in hand admittedly no written test was prescribed in the impugned notice for selection of Members of District and State Commissions but, only a viva-voce test. However, during the pendency of the present petition and in the middle of selection process, a decision was taken by the Selection Committee to hold written test for selection, which is contrary to the well settled principle of law that in the middle of the selection process, rules for selection cannot be changed.
There are no hesitation to hold that Sub Rule (9) of Rule 6 of Rules of 2020, framed under the Act of 2019, is ultra vires, and violative of Article 14 of the Constitution of India - Rules 3(2)(b) and 4(2)(c) of the Rules of 2020 prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Commission, are unconstitutional and violative of Article 14 of the Constitution of India.
Petition allowed.
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2021 (9) TMI 1498
TDS u/s 195 - Income taxable in India - Royalty - use of the assessee customer in India of operating net work payments - whether a non resident companies, ACI of Singapore and IRPL of Australia have permanent establishment in India through the medium of assessee company? - Whether the Tribunal was right in holding that the amounts paid by the assessee company to the non resident company for use of the assessee customer in India of operating net work payments, ATMs is not Royalty as per the provisions of Section 9(1)(vi) of the Income Tax Act? - HELD THAT:- It is not disputed before us that the substantial questions of law, which have been raised in this appeal, have been answered in favour of the assessee in the decision of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] as held amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 were not liable to deduct any TDS u/s 195. Decided in favour of assessee.
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2021 (9) TMI 1497
Seeking change in the name of the applicant/appellant and appropriate amendment to the cause title are allowed.
Applicants/appellants seeking liberty to withdraw the instant appeals for the reasons indicated in the applications allowed.
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2021 (9) TMI 1496
Disallowance u/s 40[a][i] - Tribunal directing to exclude those amounts which were actually paid and did not remain payable as on the last day of the previous year while making disallowance - HELD THAT:- Substantial question of law no.1 is covered by the decision of the Hon’ble Apex Court in the case of Palam Gas Service [2017 (5) TMI 242 - SUPREME COURT] wherein the said question of law has been answered by the Hon’ble Apex Court in favour of the revenue and against the assessee.
Deduction u/s 10A - disallowance on account of non deduction of tax under Section 195 in violation of a specific provisions of the Act - HELD THAT:- Question of law has been answered in the case M/S. GEM PLUS JEWELLERY INDIA LTD. [2010 (6) TMI 65 - BOMBAY HIGH COURT] in favour of the assessee and the same has been accepted by the Board in circular No.36/2017 dated 02.11.2016.
Computation under Section 10A - Exclude the leased line expenses both from the export turnover as well as the total turnover in computing deduction u/s 10A - HELD THAT:- These questions are answered in favour of the assessee by case of Commissioner of Income - tax, Central-III Vs. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT]
Delayed employees contribution to PF/ESI - whether provisions of Section 43B are not relevant to the issue and not applicable to the facts of the case? - HELD THAT:- These questions are answered in favour of the assessee by the Hon’ble High Court of Karnataka in the case of Essae Teraoka (P.) Ltd.[2014 (3) TMI 386 - KARNATAKA HIGH COURT]
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2021 (9) TMI 1495
Challenge to Insurance claim (which was allowed) - time limitation - claim filed after a period of about three months and 15 days from the date of accident - whether this short delay can be condoned? - HELD THAT:- There is no dispute that insurance was valid upto 13.09.2017 and accident took place on 29.08.2017. The claim was filed on 20.12.2017, i.e., after a period of about more than three months. Policy itself provides condonation of delay upto two months even after the Policy came to an end. Therefore, in strict sense, the delay is just more than one month. There is no clause in the Policy which specifically bar the consideration of claim by Court concerned even beyond the period of two months.
The decision passed in GAUTAM YADAV VERSUS STATE OF U.P. AND ORS. [2020 (11) TMI 1106 - ALLAHABAD HIGH COURT] is stayed by the Apex Court in THE NATIONAL INSURANCE COMPANY LIMITED VERSUS GAUTAM YADAV & ORS. [2021 (8) TMI 1382 - SC ORDER], though the payment was made by the Insurance Company. Considering that delay in filing the claim petition is just above one month and Insurance Policy is a welfare policy and that though the question of law is pending before Supreme Court but claim was paid in that case, thus the short delay in filing the claim petition can be condoned.
No other submission is made on behalf of the petitioner, therefore, the writ petition is accordingly dismissed.
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2021 (9) TMI 1494
Allowance of its Managing Director's remuneration in the computation of business profits - HELD - Question No.2 which was framed is no more an issue since identical question has been answered by this court [2014 (9) TMI 283 - BOMBAY HIGH COURT] and by an order[2016 (7) TMI 1679 - BOMBAY HIGH COURT] - Mr. Mistri also relies upon the Commissioner of Income Tax Vs. Woodward Governor India P. Ltd. [2009 (4) TMI 4 - SUPREME COURT]
Respondent requests the matter be taken up after one week so that he can consider the submissions made by Mr. Mistri and also be ready to argue on Question No.1.
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2021 (9) TMI 1493
Validity of SCN - challenge on the ground that there is no clarification on the issue and these notices were based on imaginary and incoherent grounds - learned DAG, Haryana states that she has instructions from respondent no.5 to state that no adjudication and no coercive steps would be taken against the petitioner till such time the necessary clarification is issued by the empowered Group of Ministers - HELD THAT:- Learned counsel for the petitioner states that he is satisfied with the statement of learned State counsel.
The instant petition is disposed off in the above terms.
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2021 (9) TMI 1492
Disallowance u/s.14A. r.w.r. 8D - CIT-A held that no disallowance can be made when there is no exempt income and AO not been able to establish any nexus between the exempt income if at all earned by the appellant and any expenditure incurred to earn this income - HELD THAT:- As find from the computation of income filed in the paper book that no exempt income has been claimed by the assessee either in the return of income or in the computation of income. This fact has also been noted by AO, at the first page of the order.
Once there is no exempt income, then there is no question of any disallowance u/s.14A, and therefore, in the case of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] no disallowance can be made. Decided in favour of assessee.
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2021 (9) TMI 1491
Willful, intentional or deliberate defaulters - pendency of Corporate Insolvency Resolution process and passing of order of moratorium by NCLT Bench, Mumbai not considered while passing the impugned orders - order passed by the Review Committee manned by an officer different from the one who as a member of the First Committee of the Bank - HELD THAT:- Issue notice for final disposal at admission stage to the respondents, returnable after four weeks.
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2021 (9) TMI 1490
Ex parte order passed by CIT (A) out of assessment order passed by AO u/s 144 r.w.s 143(3) - HELD THAT:- As the assessment was carried out u/s 144 r.w.s 143(3) of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee.
Assessee could not plead his case successfully before the ld. CIT(A). We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Appeal of the assessee is allowed for statistical purposes.
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2021 (9) TMI 1489
Penalty u/s 274 r.w.s. 270A - assessment order itself has been passed in breach of the mandatory requirements u/s 144B - HELD THAT:- One of the requirement u/s 144B is to serve upon the assessee a show cause notice alongwith a draft assessment order. In the affidavit in reply filed by one Ambernath Khule, the Jurisdictional AO affirmed on 31st August 2021 on behalf of respondents, in paragraph 5 it is admitted that no specific show cause notice u/s 144B was issued.
As provided in Sub-Section 9 of Section 144B of the Act, the assessment order will be non-est. The assessment order which is impugned in the petition is, therefore, quashed and set aside. The consequent demand notice as well as the notice for penalty also are quashed and set aside. It is open to the department to take steps as advised in accordance with law.
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2021 (9) TMI 1488
Penalty notices issued u/s 270 A and 271 AAC (1) - Respondent did not comply with the mandatory requirement prescribed u/s 144 B (1) (xvi) (b) - HELD THAT:- Admittedly, there has been a variation prejudicial to the interest of assessee. In the affidavit in reply to the Petition, at paragraph 7, it is stated “I say that the communication of the Draft assessment order to the assessee, however, is currently not being reflected in the case history visible to the Jurisdiction Assessing Officer.”
Revenue stated that he has subsequently received instructions that the draft assessment order was not communicated to the assessee. Therefore, we have no option but to set aside the impugned assessment order, the consequential notice of demand and penalty notices as the order, as provided under Sub section (9) of Section 144 B is non est.
Concerned officer may take such further steps as advised in accordance with law. Petition disposed of.
Respondent is handing over a cheque to Mr. Dalal in compliance with the order dated 23rd August, 2020. Statement is accepted.
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2021 (9) TMI 1487
Deficiency in service on the part of Opposite Parties, i.e. Yogesh Deveshwar, Chairman, ITC Company Ltd. and ITC Ltd. in cutting and treatment of her hairs at the Salon of Hotel ITC Maurya and medical negligence in hair treatment - it is pleaded that the entire hairs of the Complainant were not chopped off and during the hairs treatment no harm was caused to her scalp with the excess ammonia and the hairs were cut as per request of the Complainant - Proper party/complainant - HELD THAT:- There are substance in the submission of the Learned Counsel for the Opposite Parties that Mr. Sanjiv Puri is neither a proper nor necessary party and is not liable to the Complainant for the alleged claim in any manner whatsoever. Mr. Sanjiv Puri had taken the charge of Chairman and Managing Director of ITC Ltd.. Opposite Party NO. 2 on 13.05.2019 after the death of Mr. Yogesh Deveshwar on 11.05.2019. Mr. Yogesh Deveshwar was the nonexecutive Chairman of the Opposite Party No.2 and was not involved in its day to day operations or management. Moreover, the Complainant has not made any allegation of deficiency in service on his part and has failed to establish any personal involvement of him in the alleged deficiency.
In the case of Amarjit Singh Vs. Gagandeep Singh & Ors. - [2016 (12) TMI 1896 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] while dealing with the question “Whether the Ex-Secretary or the Ex-President or other office bearers of any Cooperative Credit Society fall within the category of the Service Provider”, a three Judges Bench of this Commission has held that that Ordinarily Ex-Secretary or the Ex-President or other office bearers of any Cooperative Credit Society shall not fall within the category of service providers in respect of any dealing of the depositors with such society.
In the case in hand, since no evidence has been produced by the Complainant to prove that Mr. Yogesh Deveshwar was personally involved or was relating to any alleged deficiency of service, we are of the considered view that he has been improperly joined as a party and his name is liable to be struck out from the array of the parties. As such, the application seeking impleadment of Mr. Sanjiv Puri who has become Chairman of the Opposite Party No.2 after his death, does not have any merit and is rejected.
What compensation the Complainant is entitled for? - HELD THAT:- It is trite that the word “Compensation” is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation of physical, mental or even emotional sufferings, insult or injury or loss. On the question of determination of compensation for the loss or injury suffered by a Consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors. [2000 (9) TMI 1073 - SUPREME COURT] has held that While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.
Keeping in mind the observations of the Hon’ble Apex Court in a catena of judgments with respect to awarding compensation, we are of the considered view that the reasonable and just compensation is to be awarded to the Complainant. There is no doubt that the women are very cautious and careful with regard to their hair. They spend a handsome amount on keeping the hair in good condition. They are also emotionally attached with their hairs. The Complainant was a model for hair products because of her long hair. She has done modeling for VLCC and Pantene. But due to hair cutting against her instructions, by the Opposite Party No.2 she lost her expected assignments and suffered a huge loss which completely changed her lifestyle and shattered her dream to be a top model - This apart, the Opposite Party No.2 is also guilty of medical negligence in hair treatment. Her scalp was burnt and still there is allergy and itching due to fault of the staff of Opposite Party No.2.
It would meet the end of justice in case the Complainant is granted compensation of ₹2,00,00,000/- - Complaint allowed in part.
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2021 (9) TMI 1486
Assessment of trust - Exemption u/s 11 - Surplus received - HELD THAT:- Surplus received was deleted by the CIT(A) based on the earlier order for A.Y. 2010-11 and the stand of the assessee was accepted by the Revenue in that year. Thus, Ground No. 1 of the Revenue’s appeal in the present Assessment Year is dismissed.
Depreciation claim - As during the year under consideration, the assessee in its books of account claimed depreciation on the movable assets of the Trust, however this depreciation amount was added back in the return of income and was not claimed as application of income which is evident from the balance sheet and computation of income. Thus, Ground No. 2 of the Revenue’s appeal is dismissed.
Inter organization donation received - ITAT upheld the findings of the CIT(A) when such additions made was found to be untenable. The facts are similar in the present assessment year 2014-15, hence Ground No. 3 of the Revenue’s appeal is dismissed.
Corpus donations are not the income since it has been specifically received by way of corpus and this view is upheld by the Tribunal in A.Y. 2010-11. Thus, Ground No. 4 of the Revenue’s appeal is dismissed. Revenue has not pointed out any distinguishing facts in the present Assessment Year to that of earlier Assessment Years. Therefore, all the grounds of the Revenue are dismissed.
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2021 (9) TMI 1485
Winding up of Company - fraudulent conduct - failure to disclose that the limitation to file a winding up petition is three years from when the 'right to apply accrues' as per Article 137 of the Limitation Act, 1963 - exclusive jurisdiction of Tribunal to adjudicate matters under Section 271(c) of the Companies Act, 2013 - contention of Appellant is that a private dispute of the Agreement dated 28.01.2005 executed between the Appellant and the 1st Respondent cannot be a part of fraud as per Section 271(c) of the Companies Act.
HELD THAT:- This Tribunal has elaborately discussed the defence raised by Devas in the winding-up petition. This Tribunal believes that the defence raised by Devas is not substantial, and Devas deserves to be wound up on the grounds of Section 271(c) of the Companies Act, 2013. Accordingly, the finding of the Ld National Company Law Tribunal needs no interference from this Appellate Tribunal, and both the Appeals deserves to be dismissed.
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