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Showing 81 to 100 of 16576 Records
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2021 (12) TMI 1449
Income accrued in India - Indo Oman DTAA - dividend income was taxable but exempted under Omani Law - HELD THAT:- A perusal of the paper book reveals that the issues raised in the present appeal are no longer res integra, as the Coordinate Bench [2017 (4) TMI 1035 - DELHI HIGH COURT] has dismissed the revenue’s appeal on similar grounds.
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2021 (12) TMI 1448
Condonation of delay of 27 days in filing the application - restoration application filed for setting aside the dismissal order allowed - good ground to condone the delay, present or not - Appellant submits that in the impugned order it has been noted that Counsel for Applicant made statement with regard to his family members being suffering from COVID-19.
HELD THAT:- There are no inconsistency with the Statement made in para 5 of the Application filed by the Applicant and statement of the counsel for the Applicant which was recorded in the impugned order.
The Adjudicating Authority condoned the delay in filing the application and restored the petition - no ground is made out to entertain this Appeal.
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2021 (12) TMI 1447
TDS u/s 195 - Income taxable in India - Royalty - amounts paid by the assessee to the foreign company for the use of copyright of 'computer software' - HELD THAT:- Substantial questions of law raised herein have been decided in favour of the assessee, in the decision of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] held amounts paid by resident Indian endusers/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 of the Income Tax Act were not liable to deduct any TDS u/s 195 of the Income Tax Act. Decided against revenue.
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2021 (12) TMI 1446
Levy of Interest u/s 234D - HELD THAT:- As decided in judgment dated 19.03.2019 [2019 (5) TMI 112 - MADRAS HIGH COURT] though computation of interest will depend upon the appeal effect order to be passed, the quantum of net payment is to be determined accordingly, after allowing weighted deduction under Section 35 (2AB) of the Act, as indicated above. The provisions of Section 234D have been held applicable for Assessment Year 2003-2004 in question in terms of the decision this Court in the case of Fisher Sanmar Ltd. [2014 (4) TMI 236 - MADRAS HIGH COURT] Accordingly, Questions are answered in favour of the Revenue and against the Assessee.
Disallowance of bad debts as conditions laid down in Section 36(1)(vii) r.w.s. 36(2) not satisfied - debts have been taken over from the sister concerns - Tribunal allowed the claim - HELD THAT:- Substantial question of law involved in this appeal has already been considered and decided in favour of the assessee by judgment [2019 (1) TMI 2017 - MADRAS HIGH COURT] as held tribunal has taken note of the position that the Memorandum and Articles of Association permitted the assessee to carry on the business of money lending and the transactions in question have been held to be in the realm of business activity. Decided in favour of assessee.
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2021 (12) TMI 1445
Seeking grant of anticipatory transit bail - offences punishable under Sections 66(C)/66(D) of the IT Act, 2000 which are contended to be bailable in terms of Section 77B of the IT Act, 2000 - HELD THAT:- Without any observations on the merits or demerits of the contentions that may be raised by the petitioners qua the grant of bail in relation to the allegations levelled in the FIR in question, taking into account the factum that the FIR No.435/2021, PS Model Town Panipat, Haryana apparently emanates from a matrimonial discord in relation to which the averments made in the petition indicate to the effect that there were mediation proceedings also pending and that the complainant and family members of the complainant are stated to be on interim protection till 04.12.2021 - it is considered appropriate that the applicants be not arrested till the date 06.12.2021 by which date they may move the requisite applications before the Court concerned subject to the conditions to the effect that they shall join the investigation of the case in relation to FIR No.435/2021, PS Model Town, Panipat, Haryana, shall keep their mobile phones on at all times and shall drop their PIN on the google map to ensure that their locations are available to the Investigating Officer.
The application is disposed of accordingly.
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2021 (12) TMI 1444
Maintainability of reassessment under Section 43 of the OVAT Act - absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act - HELD THAT:- The present writ petition is allowed. Consequently, the impugned order of reassessment is hereby quashed.
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2021 (12) TMI 1443
Levy of penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 - issuance of memorandum of charges (charge memorandum) proposing to hold an inquiry against him - chargesheet or charge memorandum could be given ex-post facto approval or not - HELD THAT:- The main distinguishing feature between the case of the appellant and that decided in B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] is that in the facts of the latter judgment, the subject charge memorandum did not have the ex-post facto approval. Stand of the respondents is that there is no bar on giving ex-post facto approval by the Disciplinary Authority to a charge memorandum and so far as the present case is concerned, such approval cures the defect exposed in Gopinath’s case. On behalf of the appellant, the expression “non est” attributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasized to repel the argument of the respondent authorities.
The High Court sought to distinguish the case of B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] with the facts of the present case on the ground that in the case of the appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The High Court thus considered the fact that in the case of B.V. Gopinath, the proceeding stood concluded whereas in the appellant’s case, it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath was distinguished by the High Court.
The absence of the expression “prior approval” in the aforesaid Rule would not have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law.
Whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath? - HELD THAT:- In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum - What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.
Considering the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, we direct that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.
The appeal is allowed.
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2021 (12) TMI 1442
Validity of grant of Bail - Siphoning of funds by respondent No.2 promoter, before they ceased to be in control over the complainant-company - HELD THAT:- List before a Bench in which one of us (Hon’ble Mr. Justice Sanjay Kishan Kaul) is not a Member.
Liberty is granted to mention to Hon’ble the Chief Justice of India in view of the urgency expressed.
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2021 (12) TMI 1441
Offence under SEBI - elapse of a period of more than 10 years, the Acquirers are yet to comply with SEBI’s direction to make offer to the shareholders - Interest of investors and for protection of their rights - liability of the Acquirers by calculating the offer price in terms of regulation 23 of the Delisting Regulations - HELD THAT:- Acquirers by not making public offer has not only deprived the shareholders from exiting their shareholding at a fair price thereby acting in gross defiance of the directions issued under SEBI Order (which finally merged with order passed by the Hon’ble Tribunal and the Hon’ble Supreme Court of India) but at the same time, the non-compliance on the part of the Acquirers caused a financial gain of INR 38.65 Crore along with interest amount for the undue prolonged delay in making the offer to the shareholders, since the non- compliance to make the public offer has resulted in saving of the above stated amount as calculated towards public offer consideration to the Acquirers. It can be stated that the Acquirers have notionally gained to such extent in this regard.
As reiterated that the Acquirers have failed to make the public offer despite SEBI’s directions to them to do so and despite the SEBI directions having been upheld by the Hon’ble SAT and the Hon’ble Supreme Court of India.
Acquirers have failed to cooperate with the Independent Valuer despite issuance of First and Second Advisories. We note that adequate opportunities and time have already been provided to the Acquirers to comply with the requirements of law regarding the public offer and the aforestated SEBI’s directions issued in this regard. By failing to comply with the directions issued vide SEBI’s order dated July 27, 2010, the Acquirers have acted adverse to the interest of the shareholders of the Target Company, by denying them the right to exit at a fair price as per SEBI’s directions including the aforesaid two advisories.
In order to protect the interest of shareholders and to avoid any further delay in the matter and to implement/execute the directions contained in the SEBI Order dated July 27, 2010 which has long back become final and binding on the Acquirers in light of the First and Second SAT Orders and Second Supreme Court Order, it is imperative to issue further appropriate directions against the Acquirers, which would require the Acquirers to do the needful immediately.
Keeping in view the misconduct and non-compliances by the aforesaid Acquirers/entities as discussed in the foregoing paragraphs, Mr. Zafar Yunus Sareshwala and Mr. Uves Yunus Sareshwala are called upon to show cause as to why the suitable directions, including the following, should not be issued/imposed against them u/s 11(1), 11(4)(d) and 11B(1) of the SEBI Act:
i. direction to disgorge an amount equivalent to the gain made by them by not complying with direction of public offer along with interest;
ii. direction to restrain them from accessing the securities market and prohibiting them from buying, selling or otherwise dealing in securities for an appropriate period.
This Order is without prejudice to any other action that SEBI may initiate under the securities laws, as deemed appropriate, against the above mentioned persons/entities. This Order shall come into force with immediate effect.
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2021 (12) TMI 1440
TP Adjustment - interest payment made by the assessee to its overseas associate enterprises @ 11% while adopting domestic prime lending rate only - HELD THAT:- As held that the currency involved herein is not “Euro” only, alleged “safe harbor” rules also do not pertain to these four assessment years. We thus affirm the TPO’s identical action in all these four assessment years adopting “LIBOR + 200” interest rate coming to 2.9% as against that claimed @ 11% at assessee’s behest.
Addition u/s 14A r.w.Rule 8D - HELD THAT:- Addition restricted to the extent of exempt income only in the CIT (A)’s order in the light of Joint Investment (P) Ltd [2015 (3) TMI 155 - DELHI HIGH COURT]
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2021 (12) TMI 1439
Cancellation of allotment of Sites allotted in favour of Respondent Nos. 5 and 6 respectively in the layout known as Binnamangala 2nd Stage - enhancement of compensation pursuant to which Additional Land Acquisition Officer (Addl. LAO) referred the matter to the Civil Court Under Section 18 of the Land Acquisition Act, 1894 - HELD THAT:- The documents produced by the BDA would clearly disclose that the entire extent of 5 acres 9 guntas of land including 12 guntas of kharab-B land was notified for acquisition. M. Krishna Reddy, the father of the Appellants, claimed to be the owner of 1 acre 26 guntas of lands in the said survey number and it was further contended that 1 acre and 18 guntas have been acquired and 8 guntas was left out from the acquisition - The appeal filed against the said judgment of the trial court was also dismissed by the High Court. The Appellants have not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition. It is clear that the Appellants have suppressed these material facts which are relevant for deciding the question involved in the writ petitions. Thus, the Appellants have not come to the court with clean hands.
It is well-settled that the jurisdiction exercised by the High Court Under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
This Court in PRESTIGE LIGHTS LTD. VERSUS STATE BANK OF INDIA [2007 (8) TMI 446 - SUPREME COURT] has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter.
In UDYAMI EVAM KHADI GRAMODYOG WELFARE SANSTHA & ANR VERSUS STATE OF U.P. AND ORS [2007 (12) TMI 453 - SUPREME COURT], this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
In the instant case, since the Appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the Appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.
Survey No. 13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been taken long back. The contention of the Appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos. 13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land - there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The Appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years.
This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the Appellants.
There are no merit in these appeals and the same are accordingly dismissed.
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2021 (12) TMI 1438
Sanction of Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy.
Since all the requisite statutory compliances have been fulfilled, the CP(CAA) No.171/MB-V/2021 is made absolute in terms of prayer made in the Company Scheme Petition - Scheme is hereby sanctioned with the Appointed Date of 1st April 2021.
Application disposed off.
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2021 (12) TMI 1437
Loss in trading of cotton cloth - Classification of sale account of raw cotton - AO was of the view that the assessee had failed to explain the claim of wrongly classified sale of cotton cloth - assessee could not substantiate the wrong posting in the sale account so as to justify the loss in the sale of cotton cloth (as was computed by the AO) - HELD THAT:- It cannot be said that no documents or evidences were furnished by the assessee. We have also gone through the Certificate dated 27.3.2021 issued by M/s S. Karan Shama & Co. , C.As, Ludhiana placed at page 8 of the paper book in which certain quantitative details pertaining to the cotton cloth and raw cotton have been certified. Apparently this Certificate was neither before the Assessing officer and nor before the Ld. CIT(A) and the assessee has filed it in the paper book for the first time before us. We also note that there is no application on behalf of the assessee to admit this Certificate as additional evidence.
Thus in the absence of such application for admitting of additional evidence, the same cannot be admitted for consideration by us.
Thus although the assessee could not explain the claim of wrong posting at the time of assessment proceedings or first appellate proceedings but had duly furnished the relevant documents coupled with the settled principle that tax should be levied only on the correct amount of income, and also in the interest of substantial justice, we restore this appeal to the file of the Ld. CIT(A) with a direct ion to adjudicate the issue afresh - Appeal of the assessee stands allowed for statistical purposes.
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2021 (12) TMI 1436
Rejection of rebate claim - rejection on the grounds that the Applicants had not filed prior declaration in terms of para 3.1 of the notification dated 20.06.2012 - revision application claims that delay in filing of prior declaration is at best a procedural delay and, accordingly, rebate should not be denied - HELD THAT:- In terms of rule 6A, the rebate of service tax, paid on providing services that are exported shall be allowed subject to such “safeguards, conditions and limitations”, as may be specified. Further, on a plain reading, the provisions of para-3.1 of the notification no. 39/2012-ST relating to filing a prior declaration, i.e., a declaration prior to the date of export of service, read with para- 3.2, are in the nature of Safeguards in as much as filing of the prior declaration enables the department to cause necessary verification, so as to satisfy itself that there is no likelihood of evasion of duty, service tax and cess, as the case may be - In the present case, therefore, by not filing the prior declaration, the Applicant has circumvented the safeguards subject to which the rebate is to be allowed in terms of rule 6A. As the sanction of rebate is subject to observance of the safeguards in para 3.1 and as, in the present case, these safeguards have not been observed, the rebate is not admissible.
The Hon’ble Supreme Court, in the case of GOVERNMENT OF KERALA & ANR. VERSUS MOTHER SUPERIOR ADORATION CONVENT [2021 (3) TMI 93 - SUPREME COURT], has, after noting the judgment in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], clarified that in case any ambiguity arises in construction of a beneficial exemption, the benefit of such ambiguity should be granted in favour of what is exempted - In the present case, there is no ambiguity whatsoever regarding the provisions of para 3.1. Therefore, the judgment in Mother Superior case is of no assistance to the Applicants herein. The Applicants are clearly in default of the safeguards specified under notification no. 39/2012-ST and have failed to discharge the burden of proving applicability, as required in terms of Dilip Kumar & Company.
The revision application is rejected.
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2021 (12) TMI 1435
Addition on account of consumption debtors - HELD THAT:- This Tribunal in the [2019 (4) TMI 204 - ITAT DELHI] for Assessment Years 2008–09 and 2009–10 has considered a similar quarrel on identical set of facts and has decided the issue in favour of the assessee.
Disallowance u/s 14A - HELD THAT:- The undisputed fact is that the assessee has earned exempt dividend income of Rs.18, 521/– only. But when the assessee filed return of income, the decision of the Hon'ble Delhi High Court [2015 (3) TMI 155 - DELHI HIGH COURT] was not available with the assessee. The Hon'ble High Court has restricted the disallowance to the extent of exempt income.
Similar view was taken in the case of Caraf Builders and Construction [2018 (12) TMI 410 - DELHI HIGH COURT]. Since now we have the binding decision of the Hon'ble Jurisdictional High Court of Delhi we direct the Assessing Officer to restrict the disallowance to the extent of exempt income - Ground of the assessee is allowed.
Disallowance towards leave and encashment u/s 43B - assessee claimed that claim of leave encashment on accrual basis - HELD THAT:- We have carefully perused the orders of this Tribunal in [2021 (12) TMI 441 - ITAT DELHI] as relying on Apex Court in case of Exide Industries [2020 (4) TMI 792 - SUPREME COURT] held that the claim with regard to leave encashment has to be allowed on cash basis i.e. actual payment basis and not on accrual basis. we direct the Assessing Officer to verify and allow the deduction u/s 43B on actual payment basis as held in the decision of the Hon’ble Apex Court. Ground allowed for statistical purposes.
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2021 (12) TMI 1434
Assessment u/s 153A - addition qua unabated assessment - incriminating material found during the course of search and seizure or not? - where no assessment proceeding for the year under consideration is pending, in that eventuality, in the absence of any incriminating material found during the course of search and seizure proceedings, whether the addition can be made qua unabated assessment for the said year? - HELD THAT:- Since, the facts of the instant case are exactly identical to the facts of the Smt. Sanjana Mittal Vs. DCIT [2019 (3) TMI 1757 - ITAT AMRITSAR] hence we hold that in the absence of incriminating material, in the case of the appellant assessee, no addition can be made qua unabated assessment for the year under consideration. Appeal of the assessee is allowed.
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2021 (12) TMI 1433
Assessment u/s 153A - Valid approval accorded u/s. 153D or not? - HELD THAT:- The Co-ordinate Bench in the case of Sh. Madan Lal. [2021 (8) TMI 1336 - ITAT AMRITSAR] as held that approval which is granted in a mechanical, stereotype manner, without assigning any reasons and without considering the draft assessment order is not sustainable in the eyes of law.
Thus where approval u/s.153D has been given in a mechanical manner and without application of mind in such cases assessment proceedings are to be vitiated. Appeals of the Assessee are allowed.
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2021 (12) TMI 1432
Revision u/s 263 - AO had passed an “Order Giving Effect” (OGE) allowing full relief to the assessee - As per CIT allowing relief to the assessee in the OGE without conducting fresh examination as directed by AO and without passing fresh assessment order has rendered the OGE erroneous and prejudicial to the interests of revenue - HELD THAT:- We notice that the Tribunal, vide its order [2016 (10) TMI 1374 - ITAT BANGALORE] has restored following three issues to the file of AO for examining them afresh on Disallowance u/s 14A of the Act, Whether Royalty income is eligible for computing deduction u/s 10A/10AA of the Act and Whether foreign currency expenses should be reduced from export turnover for computing deduction u/s 10A/10AA.
As observed by the Ld PCIT, the AO has failed to pass a fresh assessment order u/s 143(3) r.w.s. 254 of the Act. Instead, the AO has passed an OGE and granted relief to the assessee in respect of all the three issues mentioned above without examining them at all. Thus, granting to relief to the assessee without examining the issues as directed by ITAT and also failure to pass a fresh assessment order u/s 143(3) r.w.s 254 of the Act would definitely render the OGE erroneous and prejudicial to the interests of revenue. Hence we do not find any infirmity in the impugned revision order passed by Ld PCIT.
We make it clear that while giving effect to the revision order passed u/s 263 of the Act by PCIT, the AO is duty bound to follow the binding decision rendered by the Hon’ble jurisdictional Karnataka High Court for AY 2010-11 - Appeal filed by the assessee is dismissed.
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2021 (12) TMI 1431
Seeking Restitution of Conjugal Rights against the appellant - primary argument of the appellant was that the accumulated evidence supports the finding that the Respondent was/is suffering from “F-20– Hebephrenia” - disease of respondent concealed at the time of marriage - determination of truth - Section 9 of the Hindu Marriage Act - HELD THAT:- The outright refusal of the respondent to undergo any medical examination, prevents the court arriving at the truth. It has been held by the Supreme Court in Kollam Chandra Sekhar v. Kollam Padma Latha [[2013 (9) TMI 1298 - SUPREME COURT]] by relying on the testimony of a doctor that Schizophrenia “is a treatable, manageable disease, which can be put on a par with hypertension and diabetes.” However, the same requires determination by a doctor, and in Dharam Pal [[2003 (3) TMI 739 - SUPREME COURT]] the court has observed that "but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist.” Therefore, in such circumstance determination of truth is an important step for us to enable making of a fair decision.
Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together. It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners– especially when one of the two partners in a marriage is facing challenges of their own. Treatment of any mental ailment requires acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom.
A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respondent, and points to the possibility of the appellant‟s allegations in that regard being true.
The Family Court fell in error in rejecting the appellant‟s application. The approach of the Family Court – that the appellant had to fend for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous. It is not that this direction was sought by the appellant without any foundation or basis. The appellant had raised a plea that the respondent was suffering from Schizophrenia from day one. The appellant had shown the respondent to several specialists, and the medications prescribed show that they were relevant for treatment of Schizophrenia. The appellant also produced the medical doctors/ specialists and exhibited their prescriptions. The parties lived together for hardly any period, as the respondent was taken away by her father after about nine weeks of marriage from the matrimonial home. The evidence with regard to the respondent‟s medical condition – which related to her mental health, could possibly not have been garnered by the appellant without co-operation of the respondent. Only upon medical examination of the respondent, it could be established, with definiteness whether, or not, she is suffering from Schizophrenia, even though, there were pointers in that direction.
Pertinently, the Respondent could not establish any reason as to why, so early in the marriage, the parties separated, when according to the respondent, there were no serious issues in the relationship. The fact that she sought Restitution of Conjugal Rights itself shows that so far as she was concerned, she had no serious complaints with the appellant; or the relationship - the Family Court was duty bound to direct the medical examination of the respondent. The appellant could not have been left to gather evidence of the respondent‟s mental condition on his own.
The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant – as alleged by him, constituted a fraud perpetrated upon the appellant - the marriage between the appellant and the respondent is annulled on the ground contained in Section 12(1)(b) of the Hindu Marriage Act.
Appeal allowed.
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2021 (12) TMI 1430
Liquidation of Corporate Debtor - seeking directions in the Liquidation Process and Sale of the assets of the Corporate Debtor - Section 33 read with Regulation 32(b) & (e) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- There are no deficiency in the performance of functions of the Liquidator who has acted in accordance with the directions given by this Tribunal and as per the relevant regulations - A key benefit of selling the Corporate Debtor, as a going concern in Liquidation as against other manners of sale is, it can preserve employment while maximising the result of stakeholders. There are merit in admitting sale of the Corporate Debtor as a going concern in this Liquidation Process.
The timelines under Regulation 47 for Liquidation Process, are directory. Procedural law should not be construed as an obstruction but as an aid to Justice. Extension of time under Liquidation may be allowed only on the satisfaction that there exists exceptional circumstances - The Hon’ble Supreme Court in RANI KUSUM VERSUS KANCHAN DEVI & ORS. [2005 (8) TMI 709 - SUPREME COURT] concurring with the ratio laid down in KAILASH VERSUS NANHKU & ORS. [2005 (4) TMI 542 - SUPREME COURT], it was held that A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
Section 32(A)(4) should be read together with Section 35(1)(e) and Regulation 47. What is mandated in the Code in Section 35(1)(e) is to carry on business for its beneficial Liquidation. The Regulation therefore cannot override the objective of beneficial liquidation provided for in Section 35(1)(e) of the Code - thus, to achieve Beneficial Liquidation provided for under Section 35(1)(e) and maximisation of the value of assets under Section 53, and having regard to all reasons given below, it is found just & expedient to exercise the inherent powers under Rule 11 of the NCLAT Rules, 2016 to extend the period by six weeks to enable the Liquidator to attempt the Sale as a Going Concern at an appreciable value.
The Liquidator has adhered to the directions of the Tribunal and has acted as per the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. This extension of six weeks is being granted to achieve the objective of ‘Beneficial Liquidation’ and attempt to keep the business of the Company as a Going Concern - Appeal disposed off.
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