|
Advanced Search Options
Case Laws
Showing 21 to 40 of 16576 Records
-
2021 (12) TMI 1509
Seeking rectification of order - Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 read with Rule of 154 of National Company Law Tribunal Rules, 2016 - Applicant submits that Clause 21 sub-clause XIII Page 17 of the order dated 05.10.2021 is inconsistent with the proposal made by the resolution applicant in its resolution plan at page number 44 at clause 4.14. as the same changes the proposition made in plan.
HELD THAT:- The instant application is allowed and clause 21 subclause XIII page 17 of the order is replaced with following clause:
'On the effective date and with effect from the appointed date, the entire shareholding of the erstwhile promoters and their family members, whether as equity share capital or preference share capital shall be fully cancelled and stand reduced to zero. All other public shareholders shall be paid Rs. 1/- for every 100 shares held in the company as proposed under the plan.'
The application is allowed and stand disposed of.
-
2021 (12) TMI 1508
Requirement or justification to fix a time limit by the CMM for taking possession of the secured asset while exercising jurisdiction under Section 14 of the SARFAESI Act - order passed in a civil suit instituted by a third party in respect of the mortgaged property/secured asset would bind the secured creditor, if the said secured creditor was not a party to the Civil Suit or not.
Whether there is any requirement or justification to fix a time limit by the CMM for taking possession of the secured asset while exercising jurisdiction under Section 14 of the SARFAESI Act? - HELD THAT:- Keeping in mind the objective of the SARFAESI Act i.e., to enable the secured borrowers to take physical possession of the assets of the defaulting borrowers in an expeditious manner, there is no requirement or justification for the CMM to impose time limits for the receiver to take physical possession of the secured asset. This would also curtail unnecessary litigation wherein applications for extension are filed before the CMM and upon the said applications being either allowed or declined by the CMM, petitions are filed before this Court challenging the said decision of the CMM - This Court finds merit in the submissions made by the petitioner, that there is no requirement or rationale in providing a time limit in orders passed by the CMM under Section 14 of the SARFAESI Act, in respect of taking possession of the secured asset. In fact, setting of a time limit by the CMM for taking possession of a secured asset is contrary to the legislative intent - the impugned order dated 30th March, 2021 passed by the CMM, to the extent that it imposes a time limit of ninety days for the court receiver to take physical possession, is set aside.
In the context of proceedings initiated under the SARFAESI Act, whether an order passed in a civil suit instituted by a third party in respect of the mortgaged property/secured asset would bind the secured creditor, if the said secured creditor was not a party to the Civil Suit? - HELD THAT:- The Division Bench in Allahabad Bank in ALLAHABAD BANK VERSUS DISTRICT MAGISTRATE, LUDHIANA AND ORS. [2021 (9) TMI 1562 - PUNJAB AND HARYANA HIGH COURT] has, while analyzing the provisions of the SARFAESI Act, observed that if the secured creditor is not a party to a suit initiated by a third party against the borrower, any order passed in the said suit would not be applicable to the secured creditor.
The CMM, while exercising jurisdiction under Section 14 of the SARAFESI Act could not have taken cognizance of the aforesaid order passed in the civil suit. The scope of the proceedings before the CMM are entirely different from the proceedings in the civil suit. The scope of the proceedings before the CMM are under the provisions of the SARFAESI Act, which is a specialized law enacted to enable a secured creditor to obtain possession of the secured asset in an expeditious manner - in view of Section 34 of the SARFAESI Act, a civil court does not have jurisdiction to adjudicate the rights of a secured creditor or the enforcement of such rights by the secured creditor. Such rights can only be challenged by the borrower or any affected person before the DRT in terms of Section 17 of the SARFAESI Act. Further, in terms of Section 34, no injunction can be granted by any court in respect of any action taken in pursuance of any power under the SARFAESI Act. Therefore, the civil court, in the present case, did not have any jurisdiction to pass an injunction against the petitioner.
The impugned order dated 17th August, 2021, to the extent it holds that since the order dated 12th July, 2021 in the civil suit has been passed by a court which is senior in hierarchy of courts to the CMM, it would be against the judicial discipline to pass an order under Section 14 of the SARFAESI Act, is set aside.
There is no requirement or justification for the CMM to fix a time limit for taking possession of the secured asset while exercising jurisdiction under Section 14 of the SARFAESI Act - In the context of proceedings initiated under the SARFAESI Act, an order passed in a civil suit instituted by a third party in respect of the mortgaged property/secured asset would not bind the secured creditor, if the said secured creditor was not a party to the Civil Suit.
Appeal allowed.
-
2021 (12) TMI 1507
Seeking waiver of requirement u/s 13B(2) of the Hindu Marriage Act, 1955 to make the motion for a decree of divorce after at least six months from the date of filing the petition for divorce by mutual consent Under Section 13B(1) of the said Act - HELD THAT:- It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur [2017 (9) TMI 2031 - SUPREME COURT], this Court held that the statutory waiting period of at least six months mentioned in Section 13B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony.
In SONI KUMARI VERSUS DEEPAK KUMAR [2015 (9) TMI 1763 - SUPREME COURT], this Court exercised its power Under Article 142 of the Constitution of India to waive the statutory waiting period of six months, where the wife had received the entire compensation of Rs. 15 lacs in full and final settlement of her claims as per the settlement arrived at between the parties, and further granted a decree of divorce to the parties by mutual consent.
In this Case, the parties are both well-educated and highly placed government officers. They have been married for about 15 months. The marriage was a non-starter. Admittedly, the parties lived together only for three days, after which they have separated on account of irreconcilable differences. The parties have lived apart for the entire period of their marriage except three days. It is jointly stated by the parties that efforts at reconciliation have failed. The parties are unwilling to live together as husband and wife. Even after over 14 months of separation, the parties still want to go ahead with the divorce. No useful purpose would be served by making the parties wait, except to prolong their agony.
The impugned order dated 17th November, 2021 passed by the High Court and the impugned order dated 12th October, 2021 passed by the Family Court, Hissar are set aside - this Court deems it appropriate to exercise its power Under Article 142 of the Constitution of India, to grant the Appellant and the Respondent a decree of divorce by mutual consent Under Section 13B of the Hindu Marriage Act, 1955, waiving the statutory waiting period of six months Under Section 13(B)(2) of the said Act - appeal allowed.
-
2021 (12) TMI 1506
Money Laundering - provisional attachment order - issuance of status quo order - HELD THAT:- The property was provisionally attached and the Adjudicating Authority has confirmed the order vide order dated 09.11.2018. When the matter was challenged before the Appellate Authority, the Appellate Authority vide order dated 21.12.2018 passed the following orders “As agreed, status quo shall be maintained by both the parties as of today” 12:00 O’clock. This order was passed on 21.12.2018. Prior to this date vide Annexure-4 and Annexure-5 dated 28.11.2018 and 14.12.2018, petitioner was informed that in compliance of provisions contained in Sub-section 4 of Section 8 of the Prevention of Money Laundering Act, constructive possession of the premises has been taken over by the Enforcement Directorate. This fact was not brought to the notice of the Appellate Authority.
The order dated 09.11.2018 which is challenged in this writ petition is already under challenge before the Appellate Authority and this Court cannot entertain the present writ petition, merely, because the Appellate Authority is not functioning, more particularly, when stay was obtained from the Appellate Authority without disclosing about the constructive possession being taken over. No question arises before this Court to entertain the present writ petition - Petition dismissed.
-
2021 (12) TMI 1505
Validity of reopening of assessment u/s 147/148 - reasons to believe v/s suspect - bogus purchases of goods - HELD THAT:- Reasons were recorded based on the information received from DDIT Investigation wing Mumbai that search was carried out by the investigation wing, Mumbai in the case of Gautam Jain & others (Surat Diamond concerns) group of Mumbai. The group is indulged in providing bogus purchase bills / unsecured loans through various benami concerns.
We note that “unsecured loans” is not a subject matter or an issue in the case of assessee under consideration; therefore, it seems that assessing officer did not apply his mind while recording reasons. Thus, reasons were recorded based of suspicion and in a mechanical way without application of mind.
The provisions of section 147 require that the AO should have 'reason to believe' that any income chargeable to tax has escaped assessment. The word 'reason' in the phrase 'reason to believe' would mean cause or justification. If the AO has a cause or justification to think or suppose that income had escaped assessment, he can be said to have a reason to believe that such income had escaped assessment.
We note that in assessee`s case, the reasons recorded by the assessing officer are not “reason to believe” rather these are “reason to suspect”. Reasons must have a live link with the formation of the belief. This is supported by Circular No. 549 dated 31.10.1989 which clarified that the words “reason to believe” did not mean a change of opinion.
The Hon’ble Supreme Court in ITO vs. Lakhmani Mewal Das [1976 (3) TMI 1 - SUPREME COURT] has lucidly explained the power of assessing officer to bring to tax income escaping assessment u/s. 147.
In the present case, the assessing officer assumed the jurisdiction u/s 147 of the Act solely on the basis of the information received from the Investigation Wing, Mumbai with reference to the search carried out by the Investigation Wing, Mumbai in the case of Shri Gautam Jain and Others.
The own satisfaction of the AO for the alleged escapement of income is the prerequisite condition for initiating the reassessment proceedings, which is absent in the present case. We note that “unsecured loans” is not the subject matter or issue in the case of assessee under consideration, hence reasons recorded are not as per the scheme of the provisions of section 147 of the Act. It is the condition precedent that before initiating the reassessment proceedings, the assessing officer has to carry out deep verification of the information and to apply his independent and judicious mind before issuing notice u/s 148 of the Act but, in the present case, without any effort to examine and to discuss the material received from the Investigation Wing, solely on such borrowed satisfaction, carried out the reassessment proceedings, which is bad in law.
We are of the considered view that the reasons recorded by the AO as set out earlier, are bad in law. Appeal of the assessee is allowed.
-
2021 (12) TMI 1504
Reopening of assessment beyond four years - mandation to get prior approval of the Commissioner of Income Tax - review petition - HELD THAT:- Although the point made by the Revenue in this review petition is that this Court in its order [2019 (12) TMI 829 - ORISSA HIGH COURT] erred in drawing a distinction between an Additional Commissioner and Commissioner in terms of their authority, the point involved was that for the purpose of Section 151(1) of the Income Tax Act, 1961 since the reopening of the assessment was beyond 4 years, it had to have the prior approval of the Commissioner of Income Tax, and there was no such approval in the present case.
Consequently, no ground is made out for reviewing the order.
-
2021 (12) TMI 1503
Money Laundering - cheating, criminal breach of trust and forgery - offence punishable under Sections 120B and 420 of IPC and Sections, 7, 12 and 13 of Prevention of Corruption Act - HELD THAT:- The issue about swapping of Credit Card of CKG for transfer of Rs.500 Crores is concerned, even it is attributed to Mr. Peter Kerkar, it could be inferred from the record that the applicant, an internal auditor was not aware of the same. Rather by not objecting the same, the applicant has supported the said illegal activity of siphoning of funds of the other accused.
Forgery - HELD THAT:- The investigation papers depicts that balance-sheet and books of account of CKG were forged. It further depicts that an amount of Rs.80 Crores withdrawn by the applicant along with co-accused from Ezeego under the guise of loan was subsequently converted into 800 NCDs of Redkite. The aforesaid illegal activities cannot be done without the consent and support from other co-accused Mr. Peter Kerkar and Mr. Anil Khandelwal. The fact that CKG has gone bankrupt primarily demonstrates that the applicant in the capacity of internal auditor has failed to check illegal flow of finances and rather supported such activity which demonstrates his prima-facie involvement in the crime. The diversion of amount of Rs.1997 Crores out of loan of Rs.3642 Crores from Yes Bank and from the account of CKG to three domestic entities and Rs.1645 Crores against two overseas entities sufficiently speaks of siphoning of funds.
The economic offences constitute serious fraud and required to be dealt with very seriously. While dealing with such offences, the Court is required to take independent approach regarding prayer for bail. The economic offences are held to have been designed with criminal conspiracy involving huge losses of public money are required to be viewed very seriously. Such offences are grave in nature, affect economy of the country and various financial institutes and pose a serious threat to financial health of the country.
As the economic offences against the applicant fall in the category of grave economic offences particularly in view of nature of the accusation and material available against him, the severity of the punishment, character of the applicant/accused does not deserve him to be released.
In that view of the matter, no case for bail is made out - Application dismissed.
-
2021 (12) TMI 1502
Deduction u/s 35AB - AO reiterated the addition based on the orders passed in the earlier assessment years - HELD THAT:- On mere reading of the provisions of section 35AB of the Act, it would reveal that once the claim was allowed in the first year of payment of lump-sum consideration, the balance 5 instalments shall be allowed as deduction in succeeding 5 years without necessity of looking into the admissibility or otherwise of the claim.
Once the claim was allowed in the first year in which lump-sum consideration was paid, the claim in succeeding 5 years shall be allowed automatically unless and until the claim allowed in the initial year was not disturbed under the process known to the law.
Therefore, it would suffice to hold that once the claim for deduction u/s 35AB was allowed in initial year, such claim cannot be disallowed subsequently, without disturbing the decision in the initial year. The balance of claim in succeeding 5 years should be allowed as deduction without adjudicating on admissibility of the law. Therefore, we remand this ground of appeal no.1 to the file of the Assessing Officer with direction to allow claim of deduction u/s 35AB of the Act after due verification, if it is found claim u/s 35AB was allowed in the initial year of payment of lump-sum consideration.
We held that the claim for deduction u/s 35AB should be allowed in the year under consideration, once the claim was allowed as deduction in the initial assessment year, in the circumstances, it is not necessary to deal with the additional evidence filed before us as the claim for deduction u/s 35AB for the year under consideration does not relate to the initial year payment of lump-sum consideration. Thus, the first ground of appeal raised by the assessee stands partly allowed for statistical purposes.
Disallowance of royalty expenses - CIT(A) holding that incremental running royalty expenditure of 2.25% is capital in nature - HELD THAT:- Royalty is paid in the case of running business and in terms of number of vehicles sold there is no increase in the capacity and existing productivity. Therefore, royalty paid is to the extent of 2.75% of number of vehicle sold is a revenue expenditure. The relevant findings of the ld. CIT(A) is hereby upheld. Thus, we do not find any infirmity in the order of the ld. CIT(A) holding that the royalty paid in terms of percentage sale is revenue expenditure. Thus, the ground of appeal raised by the Revenue stands dismissed.
Disallowance of miscellaneous expenditure - Addition on account of capital etc. on the presumption that the possibility of incurring expenditure for non-business of personal nature cannot be ruled out - HELD THAT:- This addition is made merely based on the presumption, assumption, not based on any material brought on record by the AO - CIT(A) restricted the disallowance to Rs. 2,25,000/- even without referring to any material on record. The approach of both the AO as well as the ld. CIT(A) making ad- hoc disallowance cannot be accepted in the absence of any evidence of bogus payments and the disallowance of part of payment on assumption and conjectures has to be rejected. The lower authorities are not justified in assuming that the deduction was actually incurred for personal/non- business purposes without bringing any evidence on record. Therefore, we direct the AO to allow the entire miscellaneous expenses.
Ad-hoc disallowance of telephone and travelling expenses - AO disallowed 10% of the travelling expenditure on the ground that the vouchers are self-made - HELD THAT:- On careful perusal of the order of the assessment, it would reveal that the AO had resorted disallowance of 10% of the travelling expenditure solely on the ground that the vouchers are self-made and there is no allegation by AO that the expenditure is bogus in nature. Therefore, we do not find any infirmity in the order of the ld. CIT(A). Thus, this ground of appeal no.1 filed by the Revenue is dismissed.
Allowance of prior period expenses and sales tax set off written off in the books of account - HELD THAT:- CIT(A) considering the evidence filed before him came to the conclusion that the liability on account of technical assistance was crystallized during the previous year relevant to the assessment year under consideration considering the fact that the invoice for the technical assistance fees was received during the previous year relevant to the assessment year under consideration. Similarly, the ld. CIT(A) also held that the sales tax claim written off can be allowed as deduction considering the orders of the sales tax authorities passed during the year under consideration. Therefore, we find that the decision of the ld. CIT(A) is based on the proper appreciation of evidence filed in support of both the claims.
-
2021 (12) TMI 1501
Violation of principles of natural justice - petitioner’s account declared as ‘fraud’ - Circular issued by the Reserve Bank of India under Section 35A of the Banking Regulation Act, 1949 - petitioner contends that the Forensic Audit did not come to a conclusion that of declaring the account of the petitioner as ‘fraud’ - HELD THAT:- The relevant extracts of the audit report reveals that it is not a case where no adverse findings have been arrived at by the Forensic Auditor in the entire Report and therefore, this Court is of the opinion that based upon the findings arrived at in the Forensic Audit Report, the petitioner company’s account was rightly declared as ‘fraud’ and the scope of interference in the peculiar facts and circumstances does not arise. There is no illegality or infirmity in the decision making process warranting interference in the peculiar facts and circumstances of the case.
This Court has carefully gone through the Audit Report and it is not a case where there is no whisper against the petitioner company. This Court does not find any reason to interfere with the action of the respondent Bank in declaring the petitioner’s account as ‘fraud’, which has been done by following due process of law as prescribed under the Master Circular issued by the Reserve Bank of India.
The writ petitions are dismissed.
-
2021 (12) TMI 1500
Validity of High Court's order granting bail to the Respondent-Accused - Offence of murder u/s 302 read with Section 34 of the Indian Penal Code ('IPC') and Section 27 of the Arms Act - Consideration of criminal antecedents and the nature of the accusations - Adequacy of reasons provided by the High Court for granting bail - violation of principles of natural justice - Appellant is the mother of the deceased Rupesh Kumar. She is stated to be an eyewitness to the killing of her son -
HELD THAT:- While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an Accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the Accused, if any, and the nature of punishment that would follow a conviction vis-vise the offence/s alleged against an Accused.
Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the Accused on the one hand and ensuring purity of the trial of the case on the other.
Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.
Having considered the facts of the present case , we do not think that these cases are fit cases for grant of bail to Respondent-Accused in respect of the two serious accusations against him vis-�-vis the very same person namely deceased Rupesh Kumar.
The Supreme Court set aside the High Court's orders granting bail, emphasizing the need for a judicious exercise of discretion and adequate reasoning in bail decisions. The Respondent-Accused was directed to surrender within two weeks.
The appeals are allowed.
-
2021 (12) TMI 1499
Exemption u/s 11 - lower authorities held that assessee’s activities are commercial in nature - Assessee is charging handsome registration and subscription fees for providing its services - HELD THAT:- The trust or education institute is running with a nominal fee to cover cost on account of its activities that cannot be held to be a commercial activity. Sometime trust or the other institution does not get complete donations either from public or from the government.
In that case, if those trusts or education institutes charging nominal amount of fee in order to carrying out its activities in a smoother way, this cannot be called a part of commercial activities. Therefore, as assessee is imparting education and training to students and public, its activities have not been doubted by the lower authorities. Therefore, in such circumstances, benefit of Section 11 of the Act cannot be denied. Assessee appeal allowed.
-
2021 (12) TMI 1498
Seeking ad interim order of injunction in respect of the assets and properties of the deceased - passing of temporary injunction order against a non-party to a probate proceeding - absence of evidence of any attesting witness - HELD THAT:- Despite a challenge having been thrown to the authenticity of the signature of the petitioner in certain documents annexed to the application, the necessary particulars of fraud and/or forgery, ascontemplated in Order VI Rule 4 of the Code of Civil Procedure, have not been established at this stage to hold ex facie that fraud was perpetrated by the respondent.
It is true that the probate court is not debarred absolutely from adjudicating prima facie on the right, title and interest of the contesting parties for the limited purpose of deciding an application for appointment of administrator pendentelite and/or passing orders of injunction in aid of the final grant in the probate proceeding. However, in the instant case, there is no scope of reconsidering the previous order of a co-ordinate Bench, as modified by the appellate court, at the ad interim stage itself before affidavits are exchanged and the injunction application / application for administrator pendentelite is heard finally on merits, since no change of circumstance in the interregnum has been established by the petitione
In such view of the matter, the petitioner’s prayer for further reliefs in terms of the prayers other than relief of the injunction application has to be turned down at this stage.
The respondents shall file their affidavit(s)-in-opposition to the injunction application - Reply/replies, if any, thereto shall be filed by January 14, 2022 - The matter shall next be enlisted for final hearing.
-
2021 (12) TMI 1497
Contempt petition - possession of the immovable properties not handed over to Bordeuri Samaj - various movable properties of the Temple, not handed over to the Petitioner - surplus cash amount of not less than Rupees eleven crores, which belonged to the Deity, it has not been paid - books of accounts pertaining to the Temple have not been handed over to the Petitioner - opportunity to file objections not provided - principles of natural justice - HELD THAT:- Perusal of the order shows that there was no opportunity granted to the parties to file any objections to the report. It cannot be said that as the Respondents did not object to the report, they have accepted the liability to pay the amount of Rs. 7,62,03,498/-. Moreover, the observations in the report cannot be treated as concluded findings. Even assuming that paragraph 73 of the judgment includes a direction to pay money, there is no adjudication made to decide what is the extent of liability.
Hence, no case made out to take action Under Article 129 of the Constitution read with the Contempt of Courts Act, 1971. Moreover, the contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection. This is not a fit case to exercise the said jurisdiction by punishing the Respondents. However, it is always open for the Petitioner to adopt appropriate proceedings for recovery of money as mentioned in the report in accordance with law.
The contempt petitions stand disposed of.
-
2021 (12) TMI 1496
Obligation to pass a draft assessment order u/s 144C (1) - merely procedural or inadvertent error or breach of a mandatory provision - whether curable defect? - HELD THAT:- Argument of Respondents that failure on the part of the AO to follow the procedure u/s 144C(1) is merely a procedural or inadvertent error cannot be accepted. The requirement under Section 144C(1) of the Act to first pass the draft assessment order and to provide a copy thereof to the assesee is mandatory requirement that gave substantive right to the assessee to object to any variation, that is prejudicial to the assessee.
Depriving petitioner of this valuable right to raise objection before DRP would be denial of substantive right to the assessee. As held in SHL (India) Private Limited (2021 (7) TMI 1208 - BOMBAY HIGH COURT] failure to follow the procedure under Section 144C(1) of the Act would be a jurisdictional error and not merely procedural error or a mere irregularity. Therefore, the Assessing Officer has assumed jurisdiction to straight away pass the final order without following the mandatory procedure prescribed u/s 144C.
-
2021 (12) TMI 1495
CENVAT Credit - by-product - Ammonium Sulphate arising during the course of manufacture of final product, namely, Potassium Cyanides, Sodium Cyanides - Applicability of Rule 6(3) of Cenvat Credit Rules - HELD THAT:- The issue is that whether Ammonium Sulphate is a by-product and whether Rule 6(3) is applicable in respect of clearance of such by-product. This issue has been considered by this Tribunal in the appellant’s own case of M/s Hindustan Chemical Company, wherein the Tribunal has held that The appellant through technical certificates/opinions has fairly established that during the course of manufacture of finished goods, what emerges is Ammonium Sulphate as a by-product and no contrary opinion/evidence adduced by Revenue.
In view of the above decision of this Tribunal since the issue has been settled that Ammonium Sulphate being a by-product arising in the course of manufacture of final product, the demand under Rule 6(3) is not applicable.
The impugned order is set aside - appeal is allowed.
-
2021 (12) TMI 1494
Breach of principles of natural justice - Assessment order passed without even considering the submissions in writing submitted and without granting a personal hearing - HELD THAT:- It is one of those blatant cases of breach of principles of natural justice and total non application of mind. In the assessment order, the AO is referring to a show cause notice dated 12th April 2021 by which the DAO proposed modification in returned income and petitioner's initial reply seeking an adjournment of the hearing but conveniently chooses to ignore the reply filed by petitioner on 23rd April 2021 showing cause as to why the modification in returned income should not be made.
We see no reason why we should wait for respondents to file any reply and prolong the agony of petitioner and also waste precious judicial time. If the AO had only considered the file properly and dealt with the reply dated 23rd April 2021, then the need for petitioner to approach this Court would not have arisen. Ignoring the reply and forcing petitioner to approach this Court is again adding to the docket of the already overburdened Court. Hence, it is fit case, in our view, to impose cost on the concerned officer, who shall pay a sum of Rs.5,000/- as donation from his / her personal account to P. M. Cares Fund.
-
2021 (12) TMI 1493
Nomination of Judicial and Technical Members for Kochi Bench as well as for Chennai Court No.2 - HELD THAT:- It is relevant to place on record that prior to the order dated 03.12.2021, one Technical Member was working half day for Chennai Bench No.2 and half day for Kochi Bench. However, after the order dated 03.12.2021, both the Benches of the Chennai National Company Law Tribunal are fully functional.
The writ petition has become infructuous, however, it is left open for the petitioner to pursue the matter with regard to Third Bench of the National Company Law Tribunal at Chennai, in due course of time, keeping in mind the pendency of cases.
The writ petition is disposed off.
-
2021 (12) TMI 1492
Admission of additional grounds of appeal filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963 - legal issue of jurisdiction u/s 147 challenged - Deduction u/s 80IA - AO noticed that the assessee has claimed excess deduction by including income which would not qualify for deduction u/s 80IA - Revenue has challenged deletion of addition made towards foreign exchange fluctuation claimed by the assessee - HELD THAT:- Before us, by filing petition for admission of additional grounds of appeal filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963, assessee has submitted that the assessee is challenging the legal issue of jurisdiction under section 147 of the Act, since, against the original assessment order dated 26.12.2008, the assessee preferred an appeal and vide order dated 24.02.2012, the ld.CIT(A) has allowed deduction under section 80IA of the Act to the extent of ₹.14,11,72,786/- as against the claim of ₹.14,28,54,064/-, which was confirmed by the ITAT in an appeal filed by the Revenue in [2017 (1) TMI 1830 - ITAT CHENNAI] as well as the Hon’ble Jurisdictional High Court vide [2019 (4) TMI 861 - MADRAS HIGH COURT] on further appeal, thereby the issue of eligibility of 80IA relief attained finality.
As contended that no reason was stated by the AO while issuing notice under section 148 of the Act and thus, the reassessment proceedings is bad in law and prayed for suitable directions. The petition filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963 has been admitted. Since the assessee has not raised the legal issue before the ld. CIT(A), we set aside the appellate order and remit the matter back to the file of the ld. CIT(A) to decide the legal issue and thereafter the claim of deductions under section 80IA of the Act, if any, afresh in accordance with law after affording a meaningful opportunity of being heard to the assessee. Appeals filed by the assessee as well as Revenue are allowed for statistical purposes.
-
2021 (12) TMI 1491
Refund of the amounts which was deducted by the Chennai Corporation for the Works Contract rendered by the petitioner for the Chennai Corporation.
It is the case of the petitioner that the petitioner has rendered works contract for Chennai Corporation and that there was a delay on the part of the Chennai Corporation issuing Form T, as a result of which, the tax which was deducted by the Chennai Corporation and paid to the Revenue which could not be adjusted against the tax liability of the petitioner.
HELD THAT:- Considering the fact that the representations dated 07.11.2018 and 02.07.2021 of the petitioner has not evoked any response from the respondents, this Writ Petition is disposed at the the time of admission without expressing any opinion on the merits of the case by directing the respondents to pass appropriate orders on the representations of the petitioner within a period of forty five days from the date of receipt of a copy of this order.
Petition disposed off.
-
2021 (12) TMI 1490
Fraudulent and unlawful withdrawal from bank account - Unauthorised premature encashment of the two FDRs - whether a case is made out for interference by this Court in the concurrent findings of the Courts below? - whether conviction of the present Appellant for offences Under Sections 409, 420 and 477-A of the Indian Penal Code as well as Under Section 13(2) read with Section 13(1)(d) of the PC Act is sustainable?
Fraudulent and unlawful withdrawal of Rs. 10 Lakhs from Account No. 282 in the year 1994 - HELD THAT:- In order to substantiate the charge Under Section 477-A Indian Penal Code, the primary contention of the Prosecution is that despite passing the three cheques (Ex P25 to Ex P27), the Appellant did not make the relevant entries into the Current Account Ledger (Ex P23) of account No. 282. This was allegedly done to conceal the withdrawals as there were insufficient funds in the account of the Academy. We may note that the expression 'intent to defraud' as given Under Section of 477-A, contains two elements, deceit and injury. So far as the second element is concerned, it has already been noted that no financial injury was caused to the Bank.
It is also alleged that the afore-said amount of Rs. 10 lakh was collected by the Appellant. The prosecution witnesses have deposed that the operating procedure at the Bank entailed that the signature of the person who received the cheque would be recorded on the back side of the cheque. Two incriminating circumstances have come on record in so far as this allegation is concerned. First, as deposed by PW-2, and corroborated by PW-10, the signature on the back of the cheque did not tally with that of Accused No. 3. Second, the signature of the wife of the Appellant- N. Lalitha, appears on the back of Ex. P25. Undoubtedly, this raises a suspicion. But as can also be seen from the record, there are contradictions on this point as well. PW-4 has acknowledged that the payment for the three cheques was received by the Appellant and he subsequently handed over the same to Accused No. 3, who at the relevant time, was waiting in the office room of the Appellant. Further, neither of the courts below have recorded a finding that the Appellant gained any pecuniary benefit nor is there any other adverse circumstance which may lead us to reach such a conclusion.
Unauthorised premature encashment of the two FDRs belonging to B. Satyajit Reddy - HELD THAT:- In the case in hand, the Appellant in his examination Under Section 313 Code of Criminal Procedure has neither disputed the factum of the premature withdrawal, nor of the subsequent transfer of the amount to account No. 282. On the contrary, he has specifically claimed that he only acted on the written request made by the customer. The Appellant has fortified his assertion by producing two letters (Ex P6 and Ex P7) statedly written by B. Satyajit Reddy and addressed to the Branch Manager. The deposition of the handwriting expert (PW-10) has given some credence to the Appellant's version as according to his opinion, both the letters bear the signature(s) of B. Satyajit Reddy.
There is a serious dispute on the factum of whether or not B. Satyajit Reddy had sought the premature withdrawal and the subsequent transfer of the proceeds of FDRs to the account of Academy. The best person to clear the air and enlighten us would have been B. Satyajit Reddy himself, but neither was he associated during the course of inquiry/audit or the investigation nor was he examined as a prosecution witness in the trial - There was, thus, sufficient time to contact a valuable customer like B. Satyajit Reddy and enquire about the genuineness of those letters. The Chairman of the Bank (PW-1) in his complaint to CBI dated 27.11.1995 (Ex P1) did not make even a bald allegation about genuineness of these two letters which were already in his possession. Unfortunately, CBI too made no effort to contact B. Satyajit Reddy and ascertain the correct facts. There is indeed no quarrel that no financial loss was caused to B. Satyajit Reddy.
The Prosecution has failed to establish the charge of criminal breach of trust against the Appellant beyond a reasonable doubt. We are inclined to agree with the learned Senior Counsel for the Appellant that the non-examination of B. Satyajit Reddy has been materially fatal to the case of the prosecution - in the absence of cogent and unimpeachable evidence to prove that the Appellant has misappropriated the funds of the Bank and/or of B. Satyajit Reddy, it would not be safe to convict him under the provisions of Section 409 Indian Penal Code.
So far as the charge Under Section 420 Indian Penal Code is concerned, once again, the best and the only person who could throw light on whether or not he had voluntarily agreed to transfer his FDR amount in the account of the Academy or there was an element of inducement, cheating or a false promise, was B. Satyajit Reddy himself who has chosen not to enter the witness box. In the absence of even an ordinary complaint by B. Satyajit Reddy regarding misuse of his FDRs, it will be too far-fetched to hold that the Appellant had any mens rea to deceive or to misappropriate or destroy valuable property of B. Satyajit Reddy.
Thus, to conclude, no financial loss was caused to the Bank - no pecuniary loss was caused to B. Satyajit Reddy or to any other customer of the Bank - the material does not disclose any conspiracy between the Accused persons. In the absence of any reliable evidence that could unfold a prior meeting of minds, the High Court erred in holding that Appellant and other Accused orchestrated the transactions in question to extend an undue benefit to Accused No. 3 - the Appellant committed gross misconduct by misusing his position as the Branch Manager. Notwithstanding the final outcome, the Appellant's abuse of powers clearly put the Bank at the risk of financial loss - despite dereliction of his duties, none of the acts proved against the Appellant constitute 'criminal misconduct' or fall under the ambit of Sections 409, 420 and 477-A Indian Penal Code.
Thus, the prosecution has failed to prove the charges Under Sections 409, 420 and 477A Indian Penal Code against the Appellant beyond reasonable doubt. As a necessary corollary thereto, his conviction Under Section 13(2) read with Section 13(1)(d) of the PC Act can also not be sustained. However, the benefit of doubt being extended to him on account of a thin margin between 'strong suspicion' and 'conclusive proof', shall not entitle him to initiate a second round of lis to seek his reinstatement or to claim other service benefits from the Bank.
Appeal disposed off.
........
|
9911796707
