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2021 (12) TMI 1329
Seeking restraint on Corporate Debtor and applicant from selling, alienating and creating any 3rd party rights on the assets of the Corporate Debtor till the adjudication of main IB petition - seeking injunction on operation of possession notice issued by applicant under Section 13 (4) of SARFAESI Act - seeking injunction on the operation of possession notice till the pendency of the present application - HELD THAT:- Admittedly, vide order dated 30th September 2021, this Tribunal directed the parties to maintain status-quo, although, no detailed order was passed on that day, but it is a matter of fact that the proceedings before the IBC are in nature that assets of the Corporate Debtor should be protected, so that it could not have been siphoned off during this period - while passing the order at 09:30 p.m. pertaining to maintain the status qua, the object of this Tribunal was only to protect the assets of the Corporate Debtor. Hence, the said order was in consonance with the objective of the IBC and falls in the line of inherent power exercised by this Tribunal.
In the present matter in hand, it is to be noted that the notice under Section 13(2) of the SARFAESI Act was issued by the Financial Creditor i.e. Yes Bank on 29th July 2021 to the Corporate Debtor, accordingly, the statutory period of 60 days was to expire on 28th September 2021, but the notice of symbolic possession was given on 10th September 2021, and the symbolic possession was taken merely within 42 days without completing the statutory period of 60 days as laid down under the 13(2) SARFAESI Act. Thus, the above said hurry up acts/omissions on the part of Yes Bank and Corporate Debtor indicates that there might be some collusion between them, in order to help the Corporate Debtor to redeem the property.
Further, in the present matter, the present petitioner is one of the Financial Creditor and the charge was also duly created in its favour also by the Corporate Debtor. It is settled principal of law, while creating charge on a property, only an intention is required to be seen. Once, the said intention is reflected from the act & conduct of the Corporate Debtor, it is to be presumed that the charge has been duly created in the favour of the Financial Creditor/petitioner herein also. Moreover, merely that the charge has not been entered under the CERSAI, that does not mean that the preferential right has been created in the favour of the Yes Bank. Hence, in the present matter, where the petitioner herein being a Financial Creditor have a prime facie case in its favour although, the Yes Bank has also extended credit facility to the Corporate Debtor, therefore, until the petition is being heard finally, it is appropriate to protect & preserve the property of the Corporate Debtor not only for the benefit of all the creditors, but also for the Corporate Debtor.
Thus, the affirmed view is that the injunction order of maintaining status qua must continue till the next date of hearing.
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2021 (12) TMI 1328
Refund of IGST - inaction of the respondent Authorities regarding refund of IGST towards three Shipping Bills - export of Organic Soya Bean Feed Grade - zero rated supply - Applicability of Circular dated 09.10.2018 read with Notification 31/2016 – Cus (N.T.) dated 31.10.2016 as amended by Notification 59/12 dated 29.06.2017 and Notification 73/2017-Customs (NT) dated 26.07.2017 - grant of interest on refund of IGST - HELD THAT:- Section 16 of the IGST Act, 2017 deals with Zero rated supply ie. For supplies of goods or services or both, which includes supplies of export of goods or services or both, and supplies made to the Special Economic Zone Unit or Special Economic Zone Developer and the manner of zero rating. It is not in dispute that the goods in question are one of “Zero Rated supplies”. A registered person making “Zero Rated Supplies” becomes eligible to claim refund under the options as provided in sub-clauses (a) and (b) to clause (3) of Section 16 referred to above. Section 54 of the IGST Act, 2017 provides that any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him shall make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed.
In the present case, admittedly, the shipping bills have been amended pursuant to the decision of the Superintendent of Customs (Export) as reflected in communication bearing No.VIII/48-865/EXP/AMD/ MP&SEZ/17-18 dated 22.09.2017. It is not in dispute that the Demand Draft of differential drawback aggregating to an amount of ₹ 3,71,236/- has been realized by the respondent Authorities. So far as issue of whether the respondents are justified in withholding the refund of IGST paid by the exporter of the goods i.e. “Zero Rated Supply” is concerned, is no more res integra.
In the case of M/S AMIT COTTON INDUSTRIES THROUGH PARTNER, VELJIBHAI VIRJIBHAI RANIPA VERSUS PRINCIPAL COMMISSIONER OF CUSTOMS [2019 (7) TMI 472 - GUJARAT HIGH COURT] it was held that the writ-applicant is entitled to claim the refund of the IGST and respondents are directed to immediately sanction the refund of the IGST paid in regard to the goods exported, i.e. 'zero rated supplies', with 7% simple interest from the date of the shipping bills till the date of actual refund.
Applicability of Circular dated 09.10.2018 read with Notification 31/2016 – Cus (N.T.) dated 31.10.2016 as amended by Notification 59/12 dated 29.06.2017 and Notification 73/2017-Customs (NT) dated 26.07.2017 - HELD THAT:- It would be apt to reproduce the observations made by the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING & WIRE INDUSTRIES [2008 (10) TMI 5 - SUPREME COURT], the Constitutional Bench of the Apex Court was considering the binding nature of a circular issued under the Central Excise act, 1944 which were contrary to decisions rendered by the Supreme Court, where it was held that It is for the Court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.
Even recently this Court had an occasion to deal with the similar facts in the case of AWADKRUPA PLASTOMECH PVT. LTD. VERSUS UNION OF INDIA [2020 (12) TMI 1116 - GUJARAT HIGH COURT], whereby reliance was made upon the Circular 37/2018-Customs dated 09.10.2018, whereby the competent Authority had withheld the refund of IGST on the ground that exporters had availed the option to take drawback at higher rate in place of the IGST refund out of their own volition.
Grant of interest @ 18% on the amount of refund of IGST - HELD THAT:- The decisions relied upon by the petitioners in the case SHRI JAGDAMBA POLYMERS LTD. VERSUS UNION OF INDIA [2013 (6) TMI 88 - GUJARAT HIGH COURT] and PURNIMA ADVERTISING AGENCY PVT. LTD. AND 1 VERSUS UNION OF INDIA THROUGH SECRETARY AND 2 [2016 (4) TMI 291 - GUJARAT HIGH COURT] are perused. In both the aforesaid decisions, the issue with regard to entitlement of the interest at appropriate rate for delay in not paying the refund and also for paying interest on interest was under consideration. In the aforesaid decisions, the facts indicate that the petitioners therein have prayed for refund prior to insertion of Section 11BB in the Central Excise Act, 1944, which had been inserted w.e.f. 26.05.1995 thereby providing for interest on delayed refund - In the present matter, the issue relates to inaction of the respondent Authorities in not taking decision with regard to the refund of IGST with regard to the goods exported i.e. at “Zero Rated Supplies”. Akin provisions in form of Section 56 of the CGST Act, 2017, is incorporated, which deals with the interest on delayed refund.
On perusal of Section 56 of the CGST Act, it is explicitly made clear that if the applicant is not refunded the tax amount within 60 days from the date of receipt of the application under Sub-Section 1 of Section 54 then interest at such rate not exceeding 6% as may be specified in the Notification, which may be issued by the Government is payable in respect of such refund from the date immediately after expiry of 60 days from the date of receipt of such application till refund amount is received. The records reveals that the petitioners have raised the refund of IGST immediately within prescribed time and had also made payment of differential amount which has been realized by the respondent Authorities. Thereafter, the petitioners have also made various representations, which are placed on record.
On going through entire record, the stand of the respondent Authority to withhold IGST based on non-consideration of Judicial pronouncement is equally irrational and arbitrary - the respondent Authorities are directed to immediately sanction the refund towards IGST paid in respect of goods exported “Zero Rated Supplies” made under the shipping bill.
Petition allowed.
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2021 (12) TMI 1327
Initiation of contempt proceedings against the respondents on the basis of the report of the observer - contention of the respondent is that there was no time and date fixed for the meeting which is not correct - HELD THAT:- The contention of the petitioner is to go through the financial statements as per the orders passed by this Bench and then, take a decision whether to sign the financial statements or not, Since the brief purpose for which she sought an inspection of the record as permitted by this court, has not been complied with, it is opined that it is a fit case for ordering notice in this application.
The court officer is directed to issue contempt notice calling upon the respondents as to why contempt proceedings should not be initiated against them as per law - list the matter for further consideration on 25th January 2022.
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2021 (12) TMI 1326
Validity of Faceless Assessment - petitioner contended that it was unaware of the completion of the proceedings relating to the assessment year 2017-18 under the faceless scheme - Denial of natural justice - failure of an opportunity to contest the assessment proceedings - HELD THAT:- This Court is of the opinion that, though the assessing officer cannot be faulted, petitioner did not get an effective opportunity to put forth his response for the year 2017-18. Since the assessment order is the platform from which the rights and obligations of not only the assessee but also of the department arise, it is essential that such a platform is built upon strong foundations, especially when the amount involved is large. The burden of an assessment order issued without hearing the assessee will fall, not only upon the petitioner alone but even upon the system itself and may create further waste of resources.
It is relevant to bear in mind that the principles of natural justice cannot be cribbed or cabined in a straitjacket formula. The concept of natural justice depends on the context and the circumstances of each case.
When the tax department of the Country is in a transition phase, with conventional and traditional notices being replaced by e-notices or intimations in the web portal, the technological inadequacies and incompetence of the litigants cannot be brushed aside lightly, especially when the prejudice to the litigant is enormous. As the tax department and the assessees are both passing through the transition phase and shifting to electronic modes, a rigid consideration and application of rules of natural justice do not augur well for the system. The principles of natural justice are flexible enough to adapt to situations like the present, to insist for an effective opportunity for the assessee.
This Court is of the opinion that an effective opportunity of hearing could not be availed of by the petitioner in its full sense and therefore there has been a violation of the principles of natural justice while issuing Ext. P6 order of assessment.
The fact that if a fresh opportunity is granted to the petitioner to reply to the notices issued and also to consider same in a time bound manner would not cause any prejudice to the department. On the contrary, it will cater to the advancement of the cause of justice for both sides.
Ext.P6 is liable to be set aside and a fresh opportunity of hearing be granted to the petitioner. While setting aside Ext.P6 order of assessment dated 22.04.2021, the petitioner is given an opportunity to respond to all the notices issued to the petitioner on or before 14.01.2022 and the assessing officer shall consider the objections of the petitioner and pass fresh orders thereon, after hearing the petitioner on or before 31.01.2022.
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2021 (12) TMI 1325
Seeking transfer of shares - if the shares have been disposed of by the Respondents, then the proceeds of the same be directed to be credited to the account of the Corporate Debtor - preferential transaction - HELD THAT:- The scope and nature of transactions enumerated under Section 43, 45, 50 and 66 of IBC, 2016 are independent and distinct.
As to the present case, it is seen that the RP has moved the MA/731/2019 under Section 43 and 44 of IBC, 2016 and hence there is no ambiguity in the Application being filed by the RP and the scope of examination of the present Application will revolve around the tenets of Section 43 of IBC, 2016. Section 43 of IBC, 2016 deals with the what is Preferential Transaction and Section 44 of IBC, 2016 deals with the orders to be passed in case of preferential transaction.
A cursory reading of Section 43 of IBC, 2016 in terms of the Judgment of the Hon'ble Supreme Court in the matter of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] contemplates that where the liquidator or the resolution professional is of the opinion that the corporate debtor has at a relevant time given a preference in such transaction and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transaction and for, one or more of the orders referred to in Section 44. Thus, the preliminary enquiry which this Adjudicating Authority is required to do is to first ascertain as to whether the Corporate Debtor has given any preference. Only thereafter, the Adjudicating Authority is required to examine as to whether the scope of enquiry of giving preference, has happened within and during the specified time, referred to as "relevant time".
The transaction sought to be impugned by the Resolution Professional does not pertain to 'Corporate Debtor giving preference over other creditors', however it relates to a creditor who is invoking the pledge on account of default by the Corporate Debtor and under no stretch of imagination the said transaction can be brought under the confines of 'preferential transaction' as defined under Section 43 of IBC, 2016 - During the course of arguments and even in the rejoinder it is stated that pending admission of Section 7 Application, the Corporate Debtor has paid a sum of ₹ 1 Crore to Union Bank of India over the total default amount of ₹ 10 Crore. It is also seen from the record of proceedings that no direction was given by this Adjudicating Authority to pay any amount to the Financial Creditor. The Corporate Debtor, during the pendency of Section 7 Application has paid a sum of ₹ 1 Crore to the Financial Creditor and if we apply the definition of Section 43 of IBC, 2016 only the said transaction made by the Corporate Debtor would attract 'preferential transaction'. However, it is seen that the RP has not moved any Application seeking to bring the said amount paid to the Financial Creditor during the pendency of Section 7 Application to the tune of ₹ 1 Crore as 'preferential transaction'.
The Adjudicating Authority is vested with the scope of enquiry into the transactions which have happened prior to the Insolvency Commencement Date only in respect of transactions covered under Section 43, 45, 49 and 66 of IBC, 2016 - thus, it is seen from the Information Memorandum that the above extracted excerpt was the information provided to the successful Resolution Applicant and as such the successful Resolution Applicant cannot now come and claim that since he has paid a sum of ₹ 80 Crore more in the Resolution Plan he is entitled to get this transaction reversed. The Resolution Applicant has given the Resolution Plan based upon the information as given in the Information Memorandum and upon perusal of the Information Memorandum, it seen that pledge of shares of the Corporate Debtor in the 2nd Respondent Company has been invoked by Apollo Distilleries and Breweries Private Limited and as such the said shares were not part of the Information Memorandum, however, the successful Resolution Applicant cannot now strengthen his case by referring to the clauses in the Resolution Plan by stating that they are entitled to the said proceeds. In any case, it is held that the impugned transaction does not even fall under Section 43 of IBC, 2016.
Thus, the alleged transaction filed by the Resolution Professional in respect of the Corporate Debtor does not constitute 'preferential transaction' in terms of Section 43 of IBC, 2016 - application dismissed.
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2021 (12) TMI 1324
TP adjustment in respect of international transactions of Intra Group Services provided by the assessee to its Associated Enterprises (AE) - HELD THAT:- Revenue intends to keep issues alive, however, could not controvert view taken in respect of these issues as there has been no contrary observation/material evidences brought out on record by ld. CIT DR. It has been admitted by him that facts and circumstances of the services received by assessee for the year under consideration are same vis-à-vis assessment year 2010-11, and other preceding assessment years. We are therefore inclined to follow the same view. Respectfully, following view taken by this Tribunal in assessment year 2010-11 and other preceding assessment years, orders of which are placed in paper book, addition made by Assessing Officer stands deleted.
To maintain the rule of consistency, we follow the earlier order of Tribunal and decide the issue in favour of the assessee and the addition made being T P adjustment on account of intra group services provided by the assessee to its AE is deleted.
TP adjustment of interest payment on loan - HELD THAT:- This Tribunal for the assessment years 2011-12 to 2014-15 [2018 (7) TMI 1955 - ITAT NEW DELHI] remitted this issue to the record of the TPO for undertaking benchmarking analysis in accordance with the directions of this Tribunal for the assessment year 2010-11.
Disallowance of branch office expenditure and expenditure incurred due to non-producing of production sharing contracts - HELD THAT:- We fail to see any such provision in the act that if the other party in the joint-venture do not agree to share the particular cost, the cost incurred by one of the partners of that joint-venture becomes the expenditure not for the purpose of the business of that partner. No such provision has also been brought to our notice by the revenue. It is also not the case of the revenue that details of those expenditure are not available before them or Assessee has furnished incomplete information for its allowability. Further, no judicial precedent was cited before us by revenue, which says that such expenditure are not allowable to the Assessee. Accordingly, these grounds raised by the assessee stands allowed.
Disallowance of head office expenses - HELD THAT:- The fact that business model has not undergone any change since the AY 2010-11 and by following the decision rendered by the coordinate Bench of the Tribunal in taxpayer's own case for AY 2010-11, we are of the considered view that the cost of services availed of by the taxpayer required by PSC with regard to its standard of operation including the quality of execution of work, access to latest industry information and global updates, safety of its employees and the environment etc., cannot be disallowed merely on the ground that the said expenses have not been borne by the joint venture partner, particularly when it is not disputed by the Revenue that the expenditure were made for commercial expediency.To maintain the rule of consistency, we follow the earlier order of Tribunal and decide the issue in favour of the assessee and allow this ground of assessee's appeal.
Disallowance of depreciation and depletion - HELD THAT:- We deem it proper to restore the issue to the file of the Assessing Officer with a direction to give an opportunity to the assessee to substantiate its case. The Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The ground raised by the assessee on this issue is allowed for statistical purposes - To maintain the rule of consistency, we follow the earlier order of Tribunal and restore this issue to the record of Assessing Officer with the same directions for deciding the same afresh after giving a reasonable opportunity of hearing to the assessee. Accordingly, this ground of appeal is allowed for statistical purposes.
Disallowance of inventory written off - HELD THAT:- After hearing both the sides and considering the totality of the facts of the case, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to give an opportunity to the assessee to substantiate his case. The Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The ground raised by the assessee on this issue is allowed for statistical purposes.
Disallowance of deduction of Education Cess - assessee claimed deduction on account of education cess paid before the due date of filing the return of income - AO disallowed the claim of the assessee being part of the Income-tax which is not an allowable deduction - HELD THAT:- The dispute under consideration is purely legal in nature, as the facts are not in dispute. As in the case of Chambal Fertilizers and Chemicals [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] and Sesa Goa Ltd. [2020 (3) TMI 347 - BOMBAY HIGH COURT], wherein after considering the CBDT Circular, it has been held that the assessee is eligible to claim the deduction of the 'cess' as per the provisions of Section 37 of the Income Tax Act. In the absence of any contrary decision of jurisdictional High Court or any other high Court, the decisions relied upon by the ld. Sr. counsel are binding on this Tribunal. Respectfully following the above decisions, this issue is decided in favour of the assessee and the claim of deduction on account of education cess is allowed.
Short credit of TDS - HELD THAT:- Assessing Officer is directed to verify the correct TDS credit available to the assessee and then to allow the same.
Interest on refund u/s. 244A - HELD THAT:- We note that the refund of tax is consequential to the outcome of the appeal filed by the assessee. Therefore, the Assessing Officer is directed to consider the consequential effect of the refund and interest there upon u/s. 244A of the Act.
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2021 (12) TMI 1323
Maintainability of appeal - Appellate Tribunal has already passed the requisite orders for expeditious proceedings - HELD THAT:- Today, when the case was called out from the perusal of the office record it appears that Respondent No. 1 to 3 have field their Reply Affidavit on 23.11.2021, which is taken on record.
Learned Counsel for the Appellant is directed to file hard copy of the Rejoinder to the Reply Affidavit filed on behalf of the Respondent No. 1 to 3 latest by Friday i.e. by 10.12.2021. Office of the Registry is directed to accept the same - List this matter on 14th December, 2021 at 2:00 P.M under the heading 'For Hearing'.
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2021 (12) TMI 1322
Late payments towards EPF and ESI u/s 36(1)(va) - payment before furnishing the return of income under section 139(1) - HELD THAT:- As relying on Mohangarh Engineers and Construction Company [2021 (9) TMI 1319 - ITAT JODHPUR] since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds.
Impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee.
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2021 (12) TMI 1321
Demand of Outstanding dues including taxes - respondent-Company has gone in liquidation - Company in question was in liquidation and was not in a position to pay its outstanding dues including its taxes - HELD THAT:- As per order passed in MOSER BEAR INDIA LTD. [2020 (7) TMI 760 - SC ORDER] held Official Liquidator has filed a report that the Respondent-Company (Moser Bear India Ltd.) is not financially viable and is under liquidation in proceedings pending before the National Company Law Tribunal. Even if the Appellant-Revenue were to succeed, the Official Liquidator is not in a position to pay the tax amount involved in these appeals.
Indisputedly, the respondent-Company has gone in liquidation. The company in liquidation is not in a position to pay its outstanding dues including taxes. Moreover, the tax effect in the concerned appeals is just over ₹ 2,00,00,000/- (Rupees Two Crore Only).
Taking overall view of the matter, we deem it appropriate to dispose of these appeals, leaving the question of law open to be decided in appropriate case.
Revenue is directed to obtain instruction as to whether the Revenue would like to pursue the appeals filed by it. To await instruction, list on 16th March, 2022.
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2021 (12) TMI 1320
Penalty u/s 271(1)(c) - assessee has furnished inaccurate particulars of income - inaccurate particulars of income v/s inaccurate claim - whether the assessee has furnished inaccurate particulars of income with respect to research and development activity carried out by it to the tune of 50% of the total claim? - HELD THAT:- The claim of the assessee at the most can be regarded as inaccurate claim which cannot be equated with the inaccurate particulars of income. It is for the reason that nothing has been brought on record by the authorities below suggesting that the assessee has furnished the particulars of income with dishonest intent.
As regards the explanation 1 to section 271(1)(c) of the Act, there was no iota of evidence suggesting that the explanation offered by the assessee was false. Since the research and development facility was maintained by the assessee and the expenditures were also incurred by it, claim of the assessee cannot be said amounting to concealment of particulars of income - there was no finding of the authorities below qua the fact that the assessee fails to substantiate the explanation offered by him and fails to prove that such explanation is bonafides with respect to material facts relating to the computation of total income. Thus in our considered view the provisions of expression 1 to section 271(1)(c) of the Act cannot be attracted in the given facts and circumstances.
We set aside the finding of the learned CIT (A) and direct the AO to delete the penalty levied by him under section 271(1)(c) of the Act. Hence the ground of appeal of the assessee is allowed.
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2021 (12) TMI 1319
Confidentiality of the settlement and/or compromise and/or arrangement arrived - HELD THAT:- Advocates appearing for Respondent Nos.1 to 10, 11 and 12 have submitted that the Order dated 28th October, 2021, is passed by consent. In fact, Advocate Khandeparkar representing Respondent Nos.1 to 10 states that SEBI was not only represented during the hearing of the matter but SEBI was also present during the settlement talks held on six occasions. Senior Advocate appearing for SEBI states on instructions, that save and except the fact that SEBI was represented before the Learned Single Judge at the time of hearing, SEBI disputes all the other statements/ submissions made on behalf of Respondent Nos. 1 to 10, 11 and 12. In view of the above, before we proceed further, we allow SEBI to seek a clarification from the Learned Single Judge qua the allegation that SEBI has consented to the impugned Order being passed.
In view of the urgency, parties may move the Learned Single Judge today itself and obtain necessary clarification.
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2021 (12) TMI 1318
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- This Bench observes that under IBC Proceedings, the Limitation starts from the date of default. The Limitation Period for filing an Application under IBC, 2016 is 3 years from the date of default - the last unpaid invoice claimed under Part IV of the Application is 10.04.2014, whereas the present Application has been filed on 26.03.2021.
Even if the Limitation is acalculated from the last date of Payment i.e., from 31.03.2014, the limitation would have expired on 30.03.2017 - the Applicant has nowhere pleaded in its Application that as to how the Application is to considered within the Limitation Period.
Since the Application is not preferred within a period of 03 years from the date of default as well as from the date of part Payment, the present Application, not being filed within the limitation period, is time barred.
Application dismissed.
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2021 (12) TMI 1317
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- On page 11 part 4, the applicant referred to the email dated 27.04.2017, on the basis of which, the applicant claimed the amount which is in default, and it is found that the date of default mentioned in the application is 30.12.2016 whereas the present application is filed on 13.03.2020. In view of Article 137, the applicant is required to file the application within 3 years when the right to apply accrues - the date of default referred at page 11 and accordingly, the date of default, is 30.12.2016. On the basis of that, it can be said that applicant admits that the date of default is 30.12.2016 and since as per the termination letter dated 30.11.2016, the last working date of the applicant was 30.12.2016, therefore, the date of default is 30.12.2016. In this case the date from which debt fell due was 30.12.2016, therefore, the right to apply accrues on 30.12.2016 and the present application was filed on 13.03.2020 which is beyond 3 years of date of default. Hence, the application is barred by limitation.
The e-mail dated 27.04.2017 at page 52 sent by Mahesh Venkateswaran to Mr. Mohan i.e. Applicant shows that that the HR of the Corporate Debtor will process an additional F & F payment which covers the Unpaid notice period amount and the internal rating of the Applicant as per records does not provide for any variable payment or increment and e-mail dated 15.02.2017 at page 32 sent by Corporate Debtor to the Applicant shows that the applicant was informed that apart from ₹ 18,584/- nothing more is payable to the Applicant and outstanding would be processed within 15 days subject to the acknowledgement of the same by the Applicant. Further, the waiver of the notice period of 2 months was also communicated to the Applicant by the Respondent by way of relieving letter dated 06.01.2017.
The present application is barred by limitation - Appeal dismissed.
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2021 (12) TMI 1316
Maintainability of application - application is predicated on the ground that the election petition read as a whole along with the documents filed, does not disclose a cause of action, and hence, ought to be rejected - whether the petition should be rejected at this stage without the matter going to trial? - HELD THAT:- As per the law which obtains at present the candidate who files his nomination is required, inter alia, to disclose his educational qualifications as also his past convictions including fines imposed, imprisonments suffered, acquittals/discharge, if any, obtained - Disclosure qua the aforesaid is in addition to the disclosure of information qua pending criminal case where a person if convicted, can be sentenced to imprisonment for two years or more, albeit, where charge is framed or cognizance is taken by Court of law, and information concerning the candidate's assets including those of the spouse and dependents as also liabilities, particularly, those related to the Government or public institutes.
One cannot quibble with the proposition that the registration of an FIR does not bring the matter adverted to therein, within the ambit of a pending criminal case. Mr. Srivastava is right when he says that a criminal case is said to be pending, either when the concerned Magistrate has taken cognizance under Section 190 of the Code of Criminal Procedure, 1973, or a charge sheet has been filed. Admittedly, the petitioner has neither made any assertion nor placed any document on record, in this behalf.
Merely because the May 2002 Academic Examination Result for Class X, concerning the applicant/respondent no. 1, does not align with the assertion made in the petition that the application/respondent no. 1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety, and, therefore, the matter, in my view, needs to be tried.
Leave is granted to the petitioner to file a fresh affidavit in the prescribed form i.e., Form-25 [read with rule 94A of the 1961 Rules], within fifteen days from today - Application dismissed.
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2021 (12) TMI 1315
Issues:
1. Exemption applications in CUSAA cases
2. Stay applications in CUSAA cases
Exemption Applications in CUSAA Cases:
The High Court, comprising the Chief Justice and Ms. Justice Jyoti Singh, heard exemption applications in CUSAA cases 49/2021, 50/2021, 51/2021, and 52/2021. The legal representatives for the Appellant included Ms. Charanya Lakshmikumaran, Mr. Yogendra Aldak, Mr. Karan Sachdev, and Mr. Kunal Kapoor, while Mr. Satish Kumar, Senior Government Standing Counsel, represented the Respondent. The Court allowed the exemption applications subject to all just exceptions, and the applications were disposed of accordingly.
Stay Applications in CUSAA Cases:
In addition to the exemption applications, the High Court addressed stay applications in CUSAA cases 49/2021, 50/2021, 51/2021, and 52/2021. The Court issued notice on these cases, and Mr. Satish Kumar, the learned counsel representing the Respondents, accepted the notice and requested time to file a reply. The Court granted the requested time for filing a reply and directed that the reply be submitted before the next date of hearing scheduled for 28.02.2022.
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2021 (12) TMI 1314
Retention of documents seized in course of search and seizure proceedings - whether the respondents concerned are entitled to retain the documents, if the same are not relied upon documents in view of Rule 24A of the Central Excise Rule, 2002 - HELD THAT:- Petition are are disposed of by directing the Respondent No.2/Adjudicating Authority to consider the case of the petitioner for return of the documents, which the Adjudicating Authority does not want to rely upon and return the same to the petitioner as per Rule 24A of the Central Excise Rules, 2002 after giving opportunity of hearing to the petitioner and considering its submission, the Respondent No.2/ Adjudicating Authority, if comes to a conclusion that the documents, which the petitioner are asking for return are not to be relied upon in adjudication proceedings in question.
The whole exercise must be completed by the Respondent No.2/ Adjudicating Authority concerned within four weeks from the date of communication of this order.
Petition disposed off.
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2021 (12) TMI 1313
TDS u/s 194J - NFS – ATM Charges paid - disallowance made u/s 40(a)(ia) for non-deduction of tax at source on payments fall under the category of technical services - HELD THAT:- Following the above said decision of co-ordinate bench rendered in the case of Canara Bank [2022 (1) TMI 124 - ITAT BANGALORE], we hold that the payments made to NPCI towards NFS ATM charges cannot be considered as “technical services” within the meaning of sec.194J of the Act. Hence there is no liability to deduct tax at source from those payments. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the disallowance.
Applicability of sec.115JB on banking company - case of the assessee is that clause (b) of sec.115JB(2) is made applicable to banking companies, since banking company is included in sec. 211 of the Companies Act. However, it is the contention of the assessee that it is not a ‘banking company”, i.e., it is a “corresponding new bank” - HELD THAT:- As decided in M/S. CANARA BANK (ERSTWHILE SYNDICATE BANK) VERSUS DEPUTY COMMISSIONER OF INCOME-TAX CIRLE-1 UDUPI AND (VICE-VERSA) [2022 (1) TMI 124 - ITAT BANGALORE] provisions of sec.51 of the Act specifically states that only certain provisions of BR Act are applicable to “Corresponding new bank”. We noticed earlier that the Ld CIT(A) has proceeded to decide this issue by observing that all provisions of BR Act are applicable to the Company. We notice that the Ld CIT(A) did not consider the effect of provisions of sec.51 of the BR Act upon the assessee. Hence the decision taken by him under the impression that all the provisions of BR Act are applicable to the assessee is faulted one. In our view the Ld CIT(A) should considered the effect of provisions of sec. 51 of BR Act and accordingly he should have appreciated the contentions of the assessee on the definition of “banking company”, provisions of sec.211(2) of the Companies Act etc. Since these aspects go to the root of the issue, in our view, this issue needs to be examined at the end of Ld CIT(A) afresh. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to his file for examining it afresh.
Disallowance of bad debts claimed u/s 36(1)(vii) - HELD THAT:- We notice that the Ld CIT(A) has followed the decision rendered by the co-ordinate bench in the assessee’s own case [2018 (1) TMI 1575 - ITAT BANGALORE] and deleted the disallowance of bad debts claimed by the assessee u/s 36(1)(vii) of the Act. Accordingly, we do not find any reason to interfere with his order passed on this issue.
Disallowance of depreciation on HTM Securities - AO took the view that the RBI has allowed banks to claim depreciation on securities which are “Held for Trade” and “Available for sale” only thus he held that the depreciation is not available on securities “Held to Maturity - CIT-A deleted the addition - HELD THAT:- As decided in own case [2018 (1) TMI 1575 - ITAT BANGALORE] depreciation claimed on investments 'held on maturity' by a bank has to be treated as stock-in- trade in accordance with RBI guidelines and CBDT Circular.
Disallowance made u/s 14A - HELD THAT:- We notice that the co-ordinate benches have decided this issue prior to rendering of decision by Hon’ble Supreme Court in the case of Maxopp Investment Ltd [2018 (3) TMI 805 - SUPREME COURT] However, before us, the Ld A.R relied upon certain other decisions in order to contend that no disallowance u/s 14A is called for. In view of the subsequent development of law on this issue, in our considered view, this issue requires fresh examination at the end of AO by duly considering the various decisions on the subject. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of AO for examining it afresh.
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2021 (12) TMI 1312
Maintainability of appeal - seeking waiver of pre-deposit - it is claimed that both the appellants were only courier boys and they have no means to effect such huge amount of pre-deposit to enable them to prosecute the appeals before the Tribunal - Levy of penalty u/s 112(b) of the Customs Act, 1962 - smuggling - HELD THAT:- Section 129E of the Act deals with deposit of certain percentage of duty demanded or penalty imposed before filing the appeal; the provision states that the Tribunal shall not entertain any appeal if the appellant has not deposited required percentage of the duty in case where duty or duty and penalty are under dispute or penalty is in dispute, in pursuance of the decision or order appealed against - The second proviso to Section 129 E curves out an exception only in respect of appeals which were pending before the appellate authority prior to the commencement of Finance (2) Act of 2014.
Admittedly, appeals filed by the appellants before the Tribunal are not covered under the second proviso. If that is so then there is no discretion vested with the Tribunal to waive the mandatory pre-deposit contemplated under the Act. Therefore, it is found that there is no error in the order passed by the Tribunal.
Considering the submission of the learned Counsel for the appellants that the appellants are in indigenous circumstances, one opportunity is granted to the appellants to pay the mandatory pre-deposit not later than 25th February, 2022 - appeal dismissed.
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2021 (12) TMI 1311
Jurisdiction - Power to issue SCN - illegal coal mining in the State of West Bengal - case of the petitioners is that the petitioners No. 2, 3, 4 are investigating officers as per Section 48 of Prevention of Money Laundering Act, 2002 and while working as Assistant Directors in the Directorate of Enforcement, the said petitioners claim to be Public Servants in terms of section 21 of Indian Penal Code - HELD THAT:- It becomes apparent that power of the Police Officer to require attendance of a witness is circumscribed by the words "within the limits of his own or any adjoining station". It is to be noted that if the said power was in the nature of pan-India power, as has been sought to be argued by the respondents, there was no reason for the Legislature to use the terminology quoted above. To the contrary, if the same was the intention of the Legislature, the Legislature would have clearly stated so and bestowed unlimited jurisdiction on the Police Officer by using terminology in the nature of "anywhere in the country" or even "anywhere within the State". The clear departure of the Legislature and the use of the terms "within the limits of his own or any adjoining station" points towards a legislative intention to limit the jurisdiction in this regard.
On the issue of the competence of the Respondents to issue the impugned notices, a serious challenge has been presented by the petitioners, which prima facie, seems to have considerable merit. It may also be noted that the said issue goes to the root of the matter and if the respondents lacks jurisdiction itself to issue the impugned notices, the entire case of the respondents falls.
Maintainability of the petition filed by the Directorate of Enforcement - HELD THAT:- There are no merit in the preliminary objection as to the maintainability of the petition on this ground. The question of law whether the Petitioner No. 1 can maintain writ petition under Article 226 can be decided at a later stage. The Court further does not seek to comment upon whether the counsel for the petitioners can appear for petitioner Nos. 2, 3 and 4 or not as the same is not germane to the present proceedings.
On a perusal of the entire facts and circumstances pleaded in the petition, and further, specifically the claim of the petitioners that the legal right claimed by them has been infringed by the respondents within the territorial jurisdiction of this Court, the opinion that the petitioners have made out a prima facie case as to the maintainability of the present petition.
Petition disposed off.
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2021 (12) TMI 1310
Maintainability of petition - Grant of Bail - power of Court to stay its own order of grant of bail - power to stay bail order is incidental to power to grant bail or not - Section 21 of the National Investigation Agency Act, 2008 - HELD THAT:- The order impugned, though said to be "relatable" to bail, as argued by Mr. Singh, however, in terms of provisions of sub-section (4) of Section 21, it is not an order of a Special Court, either 'granting' or 'refusing' bail. The sub-section (4) envisage two kind of orders; one 'granting' and another 'refusing' bail. It does not specify third kind of order i.e. 'orders concerning or relating to bail" (emphasis supplied). Herein, the impugned order, not being order granting or refusing the bail, obviously it would not fall under sub-section (4) of Section 21 of the N.I.A. Act. That for these reasons, contention of the respondents that, Writ Petition was not maintainable, is rejected.
The Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail. The provision which can be said to be the nearest to meet the situation is Section 439(2) of the Cr.P.C., 1973. However, in it's terms, it only empowers him, to direct any person who has been released on bail to be arrested and committed to the custody. No doubt, the High Court in exercise of its power under Section 482 Cr.P.C. can stay the operation of bail order where it finds it necessary to do so, to prevent abuse of process of the Court or to meet the ends of justice - the learned Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to Section 209 of the Cr.P.C. This being error in exercise of jurisdiction, the petition was perfectly maintainable. That even otherwise, the learned Sessions Judge has not justified the order by recording the reasons in suspending his own order.
The petition is allowed.
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