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2022 (12) TMI 1543
TP Adjustment of AMP expenses - HELD THAT:- We find an identical issue raised were considered by the Tribunal in assessee’s own case for assessment year 2012- 2013 [2023 (3) TMI 656 - ITAT BANGALORE] as followed the dictum laid down in the case of Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT] and Sony Ericsson Mobile Communications India (P.) Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] and directed the A.O. to delete the AMP TP adjustment and the mark up thereon. Decided in favour of assessee.
Deduction to the extent of leave encashment u/s 43B - HELD THAT:- The Bangalore Bench of the Tribunal in the case of M/s. Hewlett Packard (India) Software Operation Pvt. Ltd. [2021 (3) TMI 1379 - ITAT BANGALORE] had categorically held that deduction to the extent of leave encashment, which has been actually paid should be allowed as deduction u/s 43B of the I.T.Act. The Tribunal in assessee’s own case for assessment year 2012-2013 [2023 (3) TMI 656 - ITAT BANGALORE] has also taken a similar view. Thus, we restore the issue raised to the files of the A.O. with the direction to allow deduction u/s 43B(f) of the I.T.Act with regard to leave encashment on actual payment basis.
Not allowed appropriate credit for TDS as claimed - The issue raised is restored to the files of the A.O. to examine the matter and grant TDS credit in accordance with law.
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2022 (12) TMI 1542
TP adjustment - excess AMP expenditure pertaining to trading segment - HELD THAT:- We find an identical issue raised considered by the Tribunal in assessee’s own case for assessment year 2012- 2013 [2023 (3) TMI 656 - ITAT BANGALORE] followed the dictum laid down in the case of Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT], Sony Ericsson Mobile Communications India (P.) Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] and directed the A.O. to delete the AMP TP adjustment and the mark up thereon.
Thus we delete the TP adjustment made on AMP expenses - Decided in favour of assessee.
Deduction towards provision for leave encashment on accrual basis - HELD THAT:- In view of the judgment of the Hon’ble Apex Court in the case of National Thermal Power Co. Ltd. [1996 (12) TMI 7 - SUPREME COURT] the additional ground raised is admitted and taken on record for adjudication. The Bangalore Bench of the Tribunal in the case of M/s. Hewlett Packard (India) Software Operation Pvt. Ltd. [2021 (3) TMI 1379 - ITAT BANGALORE] had categorically held that deduction to the extent of leave encashment has actually been paid should be allowed as deduction u/s 43B of the I.T. Act. The Tribunal in assessee’s own case for assessment year 2012-2013 [2023 (3) TMI 656 - ITAT BANGALORE] has also taken a similar view.
Thus we restore the issue raised in ground 14 to the files of the A.O. with the direction to allow deduction u/s 43B(f) of the I.T.Act with regard to leave encashment on actual payment basis.
Not allowed appropriate credit for TDS as claimed - The issue raised is restored to the files of the A.O. to examine the matter and grant TDS credit in accordance with law.
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2022 (12) TMI 1541
Direction to petitioner to change the name of its registered company within a period of three months from the date of the said order - Section 22 of the Companies Act, 1956 - It is the specific case of the 3rd respondent that they acquired the knowledge of the writ petitioner's company only on 12.09.2005 and thereafter, they filed an application within a period of five years - HELD THAT:- Section 29 of the Trademarks Act deals with registered trademarks relating to goods and services in respect of which trademarks is registered. When there is infringement, the registered proprietor may sue for infringement. Whereas Section 22 of the Companies Act deals with rectification of name of the company. The two Acts act in different field. Whereas the Trademarks Act deals with infringement relating to goods and services, whereas Section 22 of the Companies Act deals with rectification of the name of the company which are identical with or too nearly resembles the registered trademark of any proprietor under the Trademarks Act.
Therefore, merely because an interim order was not in favour of the third respondent in the civil suit, that will not have any relevance to decide the application filed under Section 22 of the Companies Act since both Section 29 of the Trademarks Act and Section 22 of the Companies Act operate in different field and independent of each other.
The Delhi High Court in Montari Overseas Ltd., Vs. Montari Industries Ltd., [1995 (12) TMI 268 - HIGH COURT OF DELHI] has held that the remedy under Section 22 of the Companies Act and other common law will operate in different fields.
The Delhi High Court in K.G.Khosla Compressors Ltd., Vs. Khosla Extrakting Ltd [1985 (6) TMI 197 - DELHI HIGH COURT] has held that the jurisdiction of the Civil Court is independent of and separate from that of the Central Government under Section 20 of the Companies Act.
Merely because injunction was rejected in favour of the 3rd respondent, it cannot be said that he has no remedy under the Companies Act. As the Companies Act operate in a different field, what is required to be seen in the Companies Act is whether the trademark is identical with or too nearly resembles a registered trademark. Therefore, mere assumption of identical name or name resembles a registered trademark is suffice to take action under Section 22 of the Companies Act and it is in no way dealt with goods or services - this Court is of the view that when an application has been filed within the period of five years and the name "Raymond" resembled with the name of the third respondent, the order passed by the second respondent cannot be faulted.
Considering the entire order passed by the second respondent, this Court do not find any illegality or irregularity in the same. The second respondent has rightly invoked the powers under Section 22 of the Companies Act and the 3rd respondent company being incorporated in the year 1925 and it has registered the trademark under various Clauses including 3, 19, 23, 24, 25, 35 and 40. Whereas, the petitioner's company has been registered in the year 1983 much after the registration of the 3rd respondent company in the year 1925 - the impugned order dated 17.07.2012, passed by the second respondent directing the petitioner Company to change its name does not require any interference and accordingly this writ petition is dismissed.
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2022 (12) TMI 1540
Seeking grant of bail - smuggling of Charas/Hashish of commercial quantity - Sections 8 read with Section 20(b)(ii) B, 27, 27A and 29 of the N.D.P.S. Act - HELD THAT:- Though it is a case of commercial quantity and allegations levelled against the petitioner are serious in nature, but having regard to the fact that he is in custody for 2 years and conclusion of trial will take time, it is required to release the petitioner on bail.
The petitioner is, accordingly, ordered to be released on bail, subject to his furnishing bail bonds to the satisfaction the trial court - SLP disposed off.
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2022 (12) TMI 1539
Income from House property - addition on account of determination of annual letting value in respect of unsold units lying with the assessee, who is a builder - HELD THAT:- The assessment year under consideration is 2017-18. The Finance Act, 2017 introduced sub-section (5) to section 23 providing that where a property held as stock in trade is not let out during the year, its annual value, after a period of one year or as revised to two years, shall be considered for the purposes of inclusion under the head "Income from House property”. This amendment has been brought out w.e.f. 01-04-2018. Thus, this provision manifestly does not apply to the assessment year under consideration.
Tribunal considered this aspect in several cases including the one taken note of by the ld. CIT(A), namely, Cosmospolis Construction [2018 (9) TMI 1621 - ITAT PUNE] and held that no income from house property can result in respect of unsold flats held by a builder as stock in trade at the year-end. While disposing off the above referred case, the Tribunal observed that income from unsold flats could be considered only under the head “Profits and Gains from business or profession” and not “Income from House Property”. CIT(A) considered these observations of the Tribunal qua the inclusion of income, if any, under the head “Business Income” and directed to include deemed annual value as business income in the impugned order. He however, did not appreciate that the Tribunal nowhere held for the inclusion of the deemed rental income under the head “Profits and Gains from business or profession”. It simply directed that income, if any, from unsold flats held as stock in trade can be considered only as “Business Income”.
Tribunal eventually deleted the addition. It is but natural that if a particular income is to be taxed under a specific head, the computational mechanism governing that head only can come into play. There is no provision under the head “Profits and Gains from business or profession” which deems the rental income from unsold flats held as stock as “Business income”.
Addition made by the AO and as sustained in the first appeal, is not called for. The same is directed to be deleted. Assessee appeal is allowed.
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2022 (12) TMI 1538
Levy of penalty - contention raised by the counsel for the petitioner is that there was no warrant for the imposition of any penalty on the petitioner as there was no suppression or evasion of tax - HELD THAT:- The vehicle was intercepted within 24 hours from the expiry of the E Way Bill. The goods were accompanied by an invoice and also the E Way Bill. Moreover, the only reason in Ext.P3 for imposing a penalty is that the books of accounts or documents were not produced for verification as directed by the Tax Officer.
The learned single Judge distinguished the judgment of the Division Bench in Ranjilal Damodaran v. Assistant State Tax Officer and another [2020 (11) TMI 831 - KERALA HIGH COURT] with that of Satyam Shivam's case cited [2021 (6) TMI 378 - TELANGANA HIGH COURT] and held that the imposition of major penalty for travelling with expired E Way Bill was not justified. Moreover, in Ext.P3, there is no finding that there was an attempt to evade tax. The learned single Judge has quashed Ext.P3 which imposed a major penalty along with the demand of IGST and directed only reconsideration of the amount of penalty to be imposed on the petitioner.
It is not inclined to interfere with the discretion exercised by the learned single Judge in remitting the matter to the authorities for fresh consideration only on the amount of penalty. Therefore, confirming the order of the learned single Judge, the writ appeal is dismissed, but it is made clear that uninfluenced by any of the observations made by the judgment under appeal, the matter may be considered and disposed of by the concerned officer.
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2022 (12) TMI 1537
Addition u/s 68 - exemption claimed u/s 10(38) denied - bogus LTCG - adding 2% of the transaction amount as unexplained expenditure u/s 69C - as argued addition has been made based on mere surmise, suspicion and conjecture and by making baseless allegations against the assessee herein - whether the AO merely on the basis of Kolkata investigation wing report could come to a conclusion that the transactions carried out by the assessee as bogus?
HELD THAT:- We are unable to persuade ourselves to accept to the contentions of the ld. DR that Kolkata Investigation Wing had conducted a detailed enquiry with regard to the scrip dealt by the assessee herein and hence whomsoever had dealt in this scrip, would only result in bogus claim of long term capital gain exemption or bogus claim of short term capital loss.
Merely because a particular scrip is identified as a penny stock by the income tax department, it does not mean all the transactions carried out in that scrip would be bogus. So many investors enter the capital market just to make it a chance by investing their surplus monies. They also end up with making investment in certain scrips (read penny stocks) based on market information and try to exit at an appropriate time the moment they make their profits.
In this process, they also burn their fingers by incurring huge losses without knowing the fact that the particular scrip invested is operated by certain interested parties with an ulterior motive and once their motives are achieved, the price falls like pack of cards and eventually make the gullible investors incur huge losses. In this background, the only logical recourse would be to place reliance on the orders passed by SEBI pointing out the malpractices by certain parties and taking action against them. Since assessee or his broker is not one of the parties who had been proceeded against by SEBI, the transaction carried out by the assessee cannot be termed as bogus.
We hold that the entire addition has been made based on mere surmise, suspicion and conjecture and by making baseless allegations against the assessee herein. Now another issue that arises is as to whether the ld. AO merely on the basis of Kolkata investigation wing report could come to a conclusion that the transactions carried out by the assessee as bogus.
In our considered opinion, the ld. AO is expected to conduct independent verification of the matter before reaching to the conclusion that the transactions of the assessee are bogus. More importantly, it is bounden duty of the ld. AO to prove that the evidences furnished by the assessee to support the purchase and sale of shares as bogus.
It is well settled that the suspicion however strong could not partake the character of legal evidence. Hence the greater onus is casted on the revenue to corroborate the impugned addition by controverting the documentary evidences furnished by the assessee and by bringing on record cogent material to sustain the addition. No evidence has been brought on record to establish any link between the assessee herein and the directors of Sunrise Asian Limited or any other person named in the assessment order being involved in any price rigging and also the exit provider. This onus is admittedly not discharged by the revenue in the instant case.
Thus we are not inclined to accept to the stand of the ld. CIT(A) in sustaining the impugned additions on account of denial of exemption for long term capital gains u/s 10(38) of the Act and estimated commission @ 2% against the same. Accordingly, the grounds raised by the assessee are allowed.
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2022 (12) TMI 1536
Seeking grant of anticipatory bail - running of an illegal call centre where there was a large-scale cyber cheating and extortion from foreign nationals by impersonating themselves as Police Officers - causing wrongful loss to foreign nationals and wrongful gain to themselves - HELD THAT:- In the present case, warrants have been issued against the applicant and he is 'absconding'. Even his brother, Mr. Vaibhav Arora, who had earlier filed a BAIL APPLN. 3292/2022 is 'absconding' - The custodial interrogation of the applicant is required to find the financial trails having crypto currencies which are yet to be unearthed. The offences are of serious nature and has international ramifications.
It is also stated by applicant that in the present FIR, all the offences have maximum imprisonment of less or upto 7 years with or without fine and hence, notice under Section 41A Cr.PC is mandatorily required to be given as per the dicta of the judgment titled Arnesh Kumar vs. State of Bihar & Anr. [2014 (7) TMI 1143 - SUPREME COURT].
This Court in a judgement titled as BHANU PRAKASH SINGH VERSUS STATE (G.N.C.T. OF DELHI) [2021 (6) TMI 1175 - DELHI HIGH COURT] has opined that 'the law does not mandate a blanket ban on arrest of accused against whom there is a reasonable suspicion of commission of a cognizable offence punishable with imprisonment for a term of less than 7 years or which may extend to 7 years but requires that the Police officer should be satisfied about the necessity of arrest on the conditions as noted in the sub-clauses (a) to (e) and should record reasons for the same.'
It is not required to entertain the application as of today - Hence, the application is dismissed.
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2022 (12) TMI 1535
Seeking grant of regular bail - Economic offences - misappropriation of funds - HELD THAT:- In the present case, charge-sheet and supplementary charge-sheet have been filed, and since there are around 122 victims, the trail of money is being traced qua many complaints. The present case is one of those cases where the hard earned money of senior retired Govt. Servants and other people belonging to economically poor section of society was taken on false pretext by misrepresentation and the same was also misused, misdirected and misappropriated for the own purpose and benefit of the present accused/applicant. The allegations as per the charge-sheet are that he had misused the amount so collected from the innocent victims to his own use by purchasing car and flats. More so, it is also the case of prosecution that the name of M/s Khushi Properties and Developers Pvt. Ltd had been struck off and the company was dissolved on 07.06.2017 by Registrar of Companies - The bank account statement of the present applicant also reveals that huge amount of cash was withdrawn from his bank accounts. The present applicant is also involved in another FIR bearing no. 107/2017, Police Station Dwarka North, for the offences punishable under Sections 186/353/34 IPC, which is pending trial.
The applicant has, thus, misappropriated the hard earned money of 122 innocent victims to the tune of Rs. 12 crores. The bank account statement of M/s Khushi Properties and Developers Pvt. Ltd reveals that out of Rs. 16.28 crores, only Rs. 4.31 crores was paid to the farmers/landowners for the purchase of land and about Rs. 12 crores have been misappropriated by the present accused/applicant. The fact make it clear that present case falls under the category of economic offences causing loss of hard earned money of innocent victims. The investigation qua many complaints against the present applicant is under way.
Considering the overall facts and circumstances of the case, this Court does not find any ground to grant bail to applicant at this stage - bail application dismissed.
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2022 (12) TMI 1534
Profit estimation on ingenuine purchases - purchases from grey market - HELD THAT:- Since, in the instant case sales made out of disputed purchases were not doubted by the Revenue, the only logical conclusion could be that assessee had made purchases in the grey market in order to have savings in indirect taxes and instantly, profit element thereon.
Hence, it would be just and fair to bring to tax only the profit element embedded in the value of such disputed purchases. We find that this Tribunal has been consistently passing orders by estimating the profit percentage for assessee’s engaged in iron and steel industry at 5%. When this was put to learned Authorized Representative, he also fairly agree for estimation of profit at 5%. Accordingly, we estimate the profit element at the rate of 5% of disputed purchases, which in our considered opinion, would meet the ends of justice. Appeals of the assessee are partly allowed.
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2022 (12) TMI 1533
Unauthorised use of electricity under explanation (b) to Section 126(6) of the Act 2003 - consumption of electricity by the respondents (consumers) in excess of the connected load/contracted load - explanation (b) to Section 126(6) of the Act 2003 - Validity of Regulation 153(15) of the Kerala Electricity Supply Code, 2014 in light of Section 126 of the Electricity Act, 2003 - HELD THAT:- A delegated power to legislate by making rules or regulations ‘for carrying out the purpose of the Act’, is a general delegation without laying down any guidelines; it cannot be exercised so as to bring into existence the substantive rights or obligations or disabilities not contemplated by the provisions of the Act 2003 itself. The Court, considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power as has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute.
A plain reading of Section 45(3)(a) of the Act 2003 would indicate that the charges for electricity certified by a distribution licensee include the fixed charges, in addition to the charges for the actual electricity supplied and consumed. In such circumstances, it can be said that the tariff includes both, fixed charges and energy charges and once the assessing officer arrives at the conclusion that unauthorised use of electricity has taken place, he is obliged to make the assessment charge equal to twice the tariff applicable, which includes the dues payable towards the energy charges also.
The finding recorded by the High Court in para 31(vi) is not sustainable in law - the Regulation 153(15) deserves to be declared invalid being inconsistent with the provisions of Section 126 of the Act 2003.
The declaration issued by the High Court, as contained in para 31(vi) of the impugned judgment is hereby set aside - Regulation 153(15) of the Code 2014 is declared to be invalid being inconsistent with the provision of Section 126 of the Act 2003 - appeal allowed.
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2022 (12) TMI 1532
Challenge to ruling of the Advance Ruling Appellate Authority by relying on a circular by way of clarification dated 3rd August, 2022 which was issued much after the passing of the order of the Advance Ruling authority as well as the order of the Appellate Advance Ruling Authority - HELD THAT:- The aforesaid circular is not applicable to the case of the petitioner since it does not directly cover the issue and subject raised by the petitioner, secondly order of the Advance Ruling Appellate Authority can not be faulted since the circular in question if at all presumed to be applicable in case of the petitioner, was not at all in existence at the relevant time or at the time of passing the impugned order.
On perusal of the impugned order of the appellate authority and the reasons given therein it is not required to interfere with the aforesaid impugned order dated 25th September, 2019.
Petition dismissed.
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2022 (12) TMI 1531
Deduction u/s 80P(2)(d) - interest income received from a cooperative bank by a cooperative housing society - HELD THAT:- From a bare reading of Sec. 80P(2)(d), it can be discerned that interest income derived by an assessee co-operative society from its investments held with any other co-operative society shall be deducted in computing its total income.
What is relevant for claim of deduction under Sec. 80P(2)(d) is that the interest income should have been derived from the investments made by the assessee co-operative society with any other co-operative society. So if the interest income is derived by a co-operative society from its investments made with any other co-operative society, the claim of deduction under Sec. 80P(2)(d) of the Act is a valid claim.
Though the co-operative banks pursuant to the insertion of sub-section (4) to Sec. 80P would no more be entitled for claim of deduction under Sec. 80P of the Act, but as a cooperative bank continues to be a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies, therefore, the interest income derived by a co-operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d) - Decided in favour of assessee.
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2022 (12) TMI 1530
TP Adjustment - assessment barred by Limitation - Timelines u/s 92CA, 144C and 153 - Reference to DRP - order of remand passed by the Tribunal, the Assessing Officer has not taken up the assessment proceedings within a reasonable time and therefore, the entire proceedings are vitiated by reason of delay
As decided by HC [2022 (6) TMI 848 - MADRAS HIGH COURT] provisions of Sections 144C and 153 are not mutually exclusive, but are rather mutually inclusive. The period of limitation prescribed u/s 153 (2A) or 153 (3) is applicable, when the matters are remanded back irrespective of whether it is to the Assessing Officer or TPO or the DRP, the duty is on the assessing officer to pass orders.
Even in case of remand, the TPO or the DRP have to follow the time limits as provided under the Act. The entire proceedings including the hearing and directions have to be issued by the DRP within 9 months as contemplated under Section 144C (12) of the Income Tax Act - Irrespective of whether the DRP concludes the proceedings and issues directions or not, within 9 months, the Assessing officer is to pass orders within the stipulated time - In matter involving transfer pricing, upon remand to DRP, the Assessing officer is to pass a denova draft order and the entire proceedings as in the original assessment, would have to be completed within 12 months, as the very purpose of extension is to ensure that orders are passed within the extended period, as otherwise the extension becomes meaningless.
The outer time limit of 33 months in case of reference to TPO under Section 153, would not refer to draft order, but only to final order and hence, the entire proceedings would have to be concluded within the time limits prescribed,
HELD THAT:- Delay condoned. Issue notice.
Leave granted.
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2022 (12) TMI 1529
Reopening of assessment u/s 147 - Reasons to believe or Reason to suspect - AO was of the opinion that assessee might have purchased goods from the Grey Market - profit embedded in the turnover taxed at the rate of 12.5% - HELD THAT:- The information on the basis of which the AO formed the opinion of escapement of income to the tune of Rs.3,00,52,199 i.e. bogus sales was not correct and instead, AO after investigation has accepted the purchases as well as sales of goods shown by the assessee in the assessee’s book. In the light of this crucial fact, it is discerned that AO’s reasons recorded for reopening the assessment was based on information from the Investigation Wing, which can at best be termed as ‘Reason to suspect’ and not ‘Reasons to believe.’
When there was adverse information, AO ought to have made preliminary enquiries and collected material which could make him form belief that there is in fact escapement of income, which in the facts discussed the AO failed to do.
Therefore, we hold that the jurisdictional requirement that is ‘Reason to believe, escapement of income’ as occurring in section 147 of the Act has not been met by the AO in the reasons recorded in the instant facts of the case. Therefore, we are inclined to quash the notice issued u/s 148 of the Act itself. Appeal of the assessee is allowed.
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2022 (12) TMI 1528
Delayed payment of employees contributions of PF & ESI beyond the due date as prescribed under the PF & ESI Act but before the date of filing of return of income - Adjustment u/s 143(1) - HELD THAT:- Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd [2022 (10) TMI 617 - SUPREME COURT] has considered the aspect of deemed income in regard to money held by assessee as a custodian on account of employees contribution of ESI and PF payments and that is also held not be an expenditure. The Hon’ble Supreme Court considered that the money held by employer of employees contribution to ESI and PF as custodian is deemed income in view of provisions of section 36(1)(va) as well as section 2(24)(x) of the Act.
In view of the above discussion carried out in view of the amended provisions of the Act by the Finance Act, 2008 w.e.f. 01.04.2008 and subsequently by Finance Act, 2016 w.e.f. 01.06.2016, the legal position is very clear that while processing return of income u/s.143(1)(a)(ii) of the Act, an incorrect claim, if such incorrect claim is apparent from any information in the return of income is to be disallowed and such adjustment is to be made on the total income or loss to the assessee. We find not infirmity in the order of CIT(A) and that of the CPC and hence, the same are confirmed. This issue of assessee’s appeal is dismissed.
Action of AO denying the tax benefit / tax rates to be adopted while computing tax liability in term of Section 115BAA(5) - We noted that the assessee has already moved petition for condonation of delay in filing the return of income u/s.119(2)(b) of the Act dated 09.11.2022 before CBDT, New Delhi. Revenue can await decision of this petition and in the eventuality, the CBDT condones the delay, the assessee is liable to assess at a lower rate of tax in the given facts and circumstances of the case. Hence, we restore this issue back to the file of the AO to await and pursue the petition for condonation of delay filed by assessee before CBDT, New Delhi. The assessee will also pursue the same and we are confident that CBDT will take up this decision and will decide this issue at the earliest. In term of the above, this issue of assessee’s appeal is allowed for statistical purposes.
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2022 (12) TMI 1527
Entitlement to the benefit of Input Tax Credit even though it is claimed belatedly - HELD THAT:- This Court has considered the above question and other questions raised in M/S. BHARAT EARTH MOVERS LIMITED VERSUS THE STATE OF KARNATAKA REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES BANGALORE [2023 (1) TMI 341 - KARNATAKA HIGH COURT] and answered the questions in favour of the assessee and held that the assessee is entitled for the benefit of input tax, even though claimed belatedly.
Appeal dismissed.
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2022 (12) TMI 1526
Scope of interference with orders of the Tribunal under Section 37 of the Arbitration and Conciliation Act, 1996 - Whether the Tribunal has acted dehors the Agreement while passing the Impugned Order? - HELD THAT:- The 2015 Amendment to the Act has amplified the powers granted to arbitral tribunals to provide interim relief under Section 17. The power is now almost pari passu the powers that a court exercises under Section 9 of the Act. Therefore, it would not be innocuous to pre-suppose that the principles guiding the exercise of the powers under both these sections must be similar.
In INDIAN OIL CORPORATION LTD. THROUGH ITS SENIOR MANAGER VERSUS M/S SHREE GANESH PETROLEUM RAJGURUNAGAR THROUGH ITS PROPRIETOR MR. LAXMAN DAGDU THITE [2022 (2) TMI 1450 - SUPREME COURT], an arbitral award was partly set aside under Section 34 of the Act. The part, which was set aside, allowed for alteration of contractual terms by increasing the per-month rent, in complete contradistinction to the rate given in the contract. The Court held that arbitrator cannot go beyond the contract. Firstly, the Apex Court was dealing with a setting aside application of a final award. The scope of power under Section 17 is completely different. Secondly, even if the principle, that directions cannot be given dehors the agreement, can be adopted, the facts before the Court were such that the portion of the award was in complete defiance to the explicit rate given in the award. Both do not seem to be case in the circumstances before us, as will be discussed later.
There are no restrictions that require the Tribunal to only constrain itself to the contract while granting interim reliefs. The objective behind the wide powers granted under Section 17 of the Act is to preclude the arbitral proceedings from becoming infructuous, as long as the relief does not explicitly stand contrary to the contract.
The Impugned Order elaborately discusses the history of the dispute without assigning any liability. In the portion where it discusses the payment of 50% of the basic contract value plus 100% of taxes and duties payable on the HWM System, the Tribunal has mentioned the apprehensions of both sides - Arbitration application dismissed.
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2022 (12) TMI 1525
Income tax proceedings/claims against company insolvent/dissolved - application u/s 7 of Insolvency and Bankruptcy Code, 2016 was filed by the financial creditor against the assessee before the NCLT, Guwahati Bench and moratorium was declared under Section 14 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Since as per the order of the NCLT, Guwahati Bench, any claim of the Income Tax Department against the assessee company made prior to 20th September, 2018 are not maintainable in the eyes of law, all the instant bunch of appeals deserves to be quashed being infructuous.
For the claims which have been allowed to be raised or admitted by the NCLT, Guwahati Bench and if they are raised in the instant bunch of appeals, then liberty is granted to the respective parties to file Miscellaneous Application for recalling of such issues within the time limit provided under the Act. Thus, all captioned appeals are dismissed as infructuous in terms indicated herein above.
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2022 (12) TMI 1524
Seeking grant of Interim Bail - bail sought on the ground of medical condition during the pendency of the proceedings - HELD THAT:- It is correct that the report states that the general condition of the inmate/patient is stable and all the medicines is being provided by the CJ-07 Dispensary. However, at the same time this report makes it clear that the date for the MRI SL Spine with SL Joint has been scheduled for 08.12.2023 - It is also a matter of record that G.B. Pant Hospital did not accept the request for an early date of appointment for MRI LS Spine. It is no doubt true that the allegations against the accused are serious in nature. This court makes it clear at the outset that this Court has not gone into merits of the case. The seriousness of the allegations against the accused shall certainly be examined in light of the twin conditions as provided under Section 45 PMLA at the time of the decision of the pending bail application.
The kind of ailments which have been informed that the petitioner suffering from are really very painful and needs immediate redressal. Therefore this Court, without going into the merits of the case and only on a limited point that let the petitioner get his suitable neurology examination conducted, is inclined to grant the interim bail on medical grounds.
It is also pertinent to mention here that after earlier interim bail application was dismissed by this Court in September, 2022, the authorities tried for further neurological evaluation. But the date for MRI is given of December, 2023. Hence, this Court cannot ask the petitioner to wait for further one year only for advance neurological test. This court also directs the authorities to look into the matter with promptness to ensure that such long dates are not given for the medical examination or the prisoners - It is clarified that the interim bail on medical grounds is granted on the peculiar facts and circumstances of the case and will definitely not be taken as a precedent.
The petitioner is admitted to interim bail on medical grounds till 10th February, 2023 subject to fulfilment of conditions imposed - application allowed.
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9911796707
