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Showing 61 to 80 of 18006 Records
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2023 (12) TMI 1377
Reopening of assessment - absence of jurisdiction with the issuing authority for reopening - as alleged approval as required u/s 151 had not been obtained - four years had expired - scope of provisions of Section 151 came to be amended with effect from 01/04/2021 - As decided by HC [2023 (6) TMI 1221 - BOMBAY HIGH COURT] notice is liable to be set aside on the ground of absence of jurisdiction with the issuing authority - HELD THAT:- UPON hearing the counsel the Court made the following Delay in filing the special leave petition is condoned.
Issue notice to the respondent. Tag and list the matter along with SLP [2023 (5) TMI 1120 - SC ORDER]
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2023 (12) TMI 1376
Appeal against Assessment order completed u/s 143(3) r/w 144B - addition made u/s 68 assessed at a higher rate u/s 115BBE was against the provisions of the statute and in violation of the principles of natural justice - HELD THAT:-Instead of exhausting the remedy, the appellant rushed to this court with a writ petition. The appellant was put to notice, and after that, the assessment proceedings were completed. In exercising the power of judicial review under Article 226 of the Constitution of India, this court cannot consider the merits of the assessment order.
We do not find that the impugned assessment order is without jurisdiction or that there has been any violation of the principles of natural justice. Hence, the learned Single Judge was absolutely justified in relegating the appellant to the statutory appellate remedy. We find no reason to interfere with the said judgment.
The time granted by the learned Single Judge to prefer the appeal is already over. In these circumstances, we permit the appellant to file an appeal u/s 246A before the Appellate Authority against the impugned assessment order within a period of one week from today.
The appellant is also free to file an application for stay. If such an appeal and stay application are filed, the Appellate Authority is directed to consider and dispose of either the appeal itself or the stay application within a period of one month from the receipt of the same after hearing both sides. Needless to say, during the said period of one month, recovery proceedings against the appellant for recovery of the amounts confirmed by the assessment order shall be kept in abeyance.
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2023 (12) TMI 1375
Disallowance u/s 14A - Suo-motu disallowance - HELD THAT:- We find that the assessee is a Bank. As relying on SOUTH INDIAN BANK LTD. [2021 (9) TMI 566 - SUPREME COURT] we direct Ld. AO to examine this aspect of the matter and apply the ratio of the decision to the case of the assessee. If the disallowance as computed by Ld. AO falls below the suo-motu disallowance as offered by the assessee, no further disallowance would be called for.
Adjustment of this item u/s 115JB - As we find that this issue is covered in assessee’s favor by the decision of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] - Respectfully following the same, we direct Ld. AO not to make any such adjustment u/s 115JB.
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2023 (12) TMI 1374
Impounding of the NCLT order under Section 33 of the Gujarat Stamp Act - 30-day stamping requirement to instruments presented under Section 31 - Interpretation of Section 32(3) regarding the Collector's authority to impound.
Whether the subject instrument being the order of the NCLT Ahmedabad could have been impounded under Section 33 of the Gujarat Stamp Act, 1958 and consequently subjected to duty and penalty under Section 39 thereof, particularly when the said instrument was presented under Section 31 of the Stamp Act for the purpose of the opinion of the Collector, who would have no jurisdiction to impound the same as held by the Hon’ble Supreme Court of India in Government of Uttar Pradesh & others v/s Raja Mohammed Amir Ahmad Khan? - HELD THAT:- Even the State has conceded to the fact that powers under Section 31 of the Act are confined to the administrative exercise of granting an opinion, when after the Collector would become functus officio, there can be no simultaneous invocation of the process provided for under Section 33 of the Act. Consequentially when we read Section 39 of the Stamp Act, which deals with the Collector’s power to stamp instruments impounded and impose penalty, for the reasons of holding that the instrument presented for opinion cannot be impounded would also lead us to hold that no penalty under Section 39 thereof can be imposed. The question is therefore answered in the negative.
Whether the provisions of Section 17 of the Stamp Act requiring an order of the National Company Law Tribunal to be stamped within 30 days from the date of such order could at all be made applicable in respect of an instrument presented to the Collector under Section 31 of the Stamp Act and whether any proceedings could have been initiated for a purported breach thereof? - HELD THAT:- Section 31 of the Stamp Act deals with ‘Chapter – III Adjudication as to Stamps’. Under this Section, though for the purpose of seeking an opinion, the limitation of 30 days will not be applicable as the process thereunder is that of giving an opinion or adjudicating on the stamp duty chargeable, however, the provisions of Section 17 of the Stamp Act mandate stamping of instruments within 30 days as in the case of the Tribunal’s order. What is to be noted as the word used in Section 17 is ‘stamped’ and not ‘duly stamped’ which term means a stamp affixed being not less than the proper amount in accordance with law. In other words, irrespective of an adjudication or an opinion, an instrument has to be stamped either fully or as perceived by the holder within 30 days in case of an order of the Tribunal and therefore the provisions of Section 17 of the Stamp Act requiring an order to be stamped within 30 days would be applicable to an instrument presented to the Collector under Section 31 of the Act.
The scheme of adjudication is a separate mechanism prescribed under Section 31 and consequences thereof under Sections 32 and 33 of the Stamp Act. For failure to adhere to the timeline no proceedings for breach as impounding can be exercised. The question therefore is answered accordingly i.e. so far as the applicability of provision of Section 17 requiring an order of the Tribunal to be stamped within 30 days is answered in the affirmative and so far as whether any proceedings could have been initiated for a purported breach thereof the answer is in the negative.
Whether Section 32(3) of the Stamp Act disabling the Collector from endorsing any instrument brought to him after the expiration of one month from the date of its execution can be construed as an enabling provision authorizing the Collector to impound the instrument under Section 33 of the Stamp Act? - HELD THAT:- Section 32(3) of the Stamp Act disables the Collector from endorsing any instrument brought to him after the expiration of one month from the date of its execution. A document presented under Section 31 for the opinion of the Collector cannot be impounded under Section 33 of the Stamp Act and having opined that the only fall out for having failed to stamp the instrument within 30 days would be that the Collector will be disabled from endorsing any instrument. The question is answered in the negative inasmuch as there will be no authorization in the Collector in impounding such an instrument under Section 33 of the Stamp Act.
Whether the general time limit prescribed under Section 17 of the Stamp Act providing for stamping of the order of the National Company Law Tribunal within 30 days from the date of such order can be applied when such order/instrument itself permits the applicant to present the order before the Collector within 60 days from the date of the receipt of the order? - HELD THAT:- Since the provisions of Section 17 have been discussed while answering Question B above, what is evident is that the order of the Tribunal as per the provisions of Section 17 has to be stamped within 30 days from the date of the order. It is the contention of the company that as per the relevant clauses of the scheme, which defined the terms ‘appointed date’ and ‘effective date’, it was open for the companies to file the instrument before the stamp authority within 60 days is contrary to the mandate of Section 17 of the Act. Well settled it is that taxing statutes are required to be strictly interpreted especially when the language used by the legislature is plain and unambiguous. In this context, it is well settled that a limitation period provided under a statute cannot be altered and amended or extended. The procedure must be adhered to in the manner prescribed. The term in section 17 is very clear that the Tribunal’s order has to be stamped within 30 days from the date of the order. The Full Bench of the Bombay High Court in the case of Reliance Industries [2016 (4) TMI 482 - BOMBAY HIGH COURT] has unequivocally held that the scheme of arrangement or amalgamation and the order sanctioning the scheme would be an instrument under section 2(l) of the Stamp Act. What is chargeable to duty is the instrument and not the transaction - The answer therefore is that the general time limit prescribed under Section 17 of the Stamp Act would apply to an order of the Tribunal. The question is accordingly answered in the affirmative.
Whether the action of impounding the said instrument and subjecting it to imposition of penalty is not contrary to the scheme and provisions of the Stamp Act and more particularly Section 40 thereof, which vests a discretion with the Collector of not impounding such instrument even if presented beyond the period of 30 days but before the period of 1 year from the date of such instrument? - HELD THAT:- Reading Section 40 of the Act which has also been reproduced in the course of written submissions by the State Government indicates that from the title itself it is applicable to instruments which are unstamped by accident. The circumstances to invoke Section 40 of the Act and get the benefit of the extended period of a year is only available when the omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity. Reading the section would indicate that as per the scheme in order to undertake the benefit thereof the instrument not duly stamped must be within one year from the date of its execution and such presentation and omission to pay the duty must be owing to the three circumstances narrated hereinabove. In the facts of the present case, there are no eventualities or circumstances to suggest any of the three ingredients for invoking Section 40. The question therefore is answered in the negative.
Whether the CCRA has erred in rejecting the Applicant’s submission that there was no delay in filing of application under Section 31 of the Stamp Act, the same having been filed within 30 days of the Effective Date under the Scheme, especially when the consideration amount payable under the Scheme could not have been computed unless the Scheme was made effective? - HELD THAT:- There was no question of interpreting the provision otherwise as suggested by the company by relying on the relevant clauses of the scheme to seek an extended period of limitation. The instrument i.e. the Tribunal’s order was signed on 18.09.2019 and was presented before the Collector on 13.11.2019 approximately after two months from the date of its execution. Even the certified copy of the order was received on 30.09.2019. This was therefore also not within the time limit of 30 days as per the mandate. The CCRA therefore has not erred in holding that the instruments presented were beyond a period of limitation. The answer to the question is therefore No.
Whether the imposition of penalty is not disproportionate, excessive, unreasonable, illegal, and unjust, in the absence of any mens rea on the part of the Applicant which had itself presented the said instrument for seeking opinion of the Collector under Section 31 of the Act and which was within the time stipulated in the order of NCLT Ahmedabad itself? - Whether the CCRA ought not to have set aside the order of the Collector imposing penalty, particularly since the Collector has failed to assign any reasons whatsoever for imposition of the said penalty, and in absence of assignment of reasons by the Collector, whether the CCRA has not erred in supplanting its own reason to justify the imposition of penalty? - HELD THAT:- Once having presented the document for opinion/adjudication, albeit in this case, beyond a period of 30 days, it is a clear case of a perception of the company as well as the authority and therefore it cannot be inferred that there was an intention to evade payment of stamp duty. Section 39 indicates that it deals with the power of the Collector to stamp instruments impounded. The instruments presented under Section 31 cannot be impounded, Section 39 cannot also be invoked. The bonafides of the companies was apparent when on the order passed by the Collector it willingly deposited an amount of Rs. 25 crores worked out on a consideration of Rs. 4639 crores. There was no intention to avoid/evade payment. Once having held thus, the penalty clause of Section 39 could not be invoked.
The imposition of penalty is disproportionate, excessive, unreasonable , illegal, and unjust, in the absence of any mens rea on the part of the applicant - Stamp Reference is accordingly disposed of.
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2023 (12) TMI 1373
Challenge the appointment of Arbitrator on the part of the respondent Insurance Company - whether the dispute is arbitrable can be decided at the stage of section 11 of the Arbitration and Conciliation Act, 1996? - HELD THAT:- Reliance is placed on the decision of the Apex Court in the case of Magic Eye Developers Private Limited vs. Green Edge Infrastructure Private Limited and others, [2023 (5) TMI 510 - SUPREME COURT], where it was held that 'When the claim is disputed, it is the arbitrator who may competently decide the claim. Arbitrability of the dispute is also to be decided by the arbitrator. While exercising the powers under section 8 of the Arbitration and Conciliation Act, 1996, such questions cannot be gone into by this Court and when there is an arbitration clause, the aspects are to be decided by the arbitrator for such purpose.'
This Court does not find any reason to reconsider the contention of the respondent insurance company that the dispute is non-arbitrable inasmuch, as consent letter has been sent by the petitioner on 24.12.2018 and payment had been received in January, 2019 without any protest.
Petition allowed.
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2023 (12) TMI 1372
Recovery of amount u/s 446 of the Companies Act, 1956 against a debtor of the company in liquidation - time limitation u/s 458A of the Act - HELD THAT:- A careful perusal of the Section 458A of the Companies Act, 1956 would show that it has overriding effect over the provisions of the Limitation Act and in proceedings under the Act, the period of limitation would commence from the date of passing of order on winding up and excluding a period of one year immediately following the date of winding up order.
The Supreme Court in the case of KARNATAKA STEEL & WIRE PRODUCTS VERSUS KOHINOOR ROLLING SHUTTERS & ENGG. WORKS [2002 (11) TMI 355 - SUPREME COURT] held that 'The legislature, by way of an amendment, brought into force the provisions of Section 458-A, so that an official liquidator, who is supposed to be in custody of the assets and liabilities of the company, would be able to file a claim on behalf of the company, which was legally enforceable on the date of the winding up, after excluding the period, indicated under Section 458-A of the Companies Act, so that the company or its shareholders will not suffer any loss. But by no stretch of imagination, the said provisions contained in Section 458-A can be construed to mean that even a barred date (sic debt) or a claim which was not enforceable on the date of the winding up, would stand revived, once a winding-up application is filed and order is made by virtue of Section 458-A of the Companies Act.'
Reverting to the instant matter, evidently, the order for winding up was passed by this court on 03.06.2011, whereby an OL was appointed as Provisional Liquidator. It is uncontroverted that the payment was made to the respondent company on 10.04.2008, and therefore, the initial period of limitation for re-claiming the amount was three years i.e., 10.04.2011, which of course was before the order of winding up was passed.
On a careful perusal of Section 458A of the Act, subsequent to the Provisional Liquidator being appointed and taking over the charge, the period of limitation for claiming the recovery of such amount commenced on 03.06.2011 and extended by another year, eventually, by all means expired on 03.06.2015. It is also borne out from the record that the present application by the OL has been filed on 26.10.2017.
Ex-facie, the application moved on behalf of the applicant / OL for recovery of the amount claimed alongwith interest is barred by limitation in terms of Section 458A of the Act.
The instant application moved by the OL is hereby dismissed.
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2023 (12) TMI 1371
Petition u/s 482 Cr.P.C. against the order passed by ASJ, Patiala House Court, New Delhi whereby his application u/s 203 Cr.P.C. was dismissed on the ground the petitioner is not proposed accused in complaint filed by respondent - HELD THAT:- As perused the present petition and the order passed by this court by virtue of which the same relief was claimed and the same was dismissed as withdrawn. A further perusal for the same shows that the present petition has been filed by the petitioner on the grounds which were enumerated in the previous appeal but couched differently.
It is pertinent to note here that nothing has been bought before this court to show that there are changes in the circumstances which emerged since the dismissal of the earlier petition that prompted him to file the present petition. One cannot lose sight of the fact that the petitioner is still not a proposed accused as submitted by the learned counsel for the respondent, in the complaint filed by the respondent – SEBI.
Since nothing has changed from the dismissal of the previous petition and the present petition has been filed under the guise of seeking the similar relief which was already dealt by this court [2023 (5) TMI 1395 - DELHI HIGH COURT] this court is of the view that under the garb of filing the present petition the petitioner cannot be permitted to reassert or reiterate the same grounds seeking identical reliefs.
It is essential to uphold the principles of judicial economy and finality in legal proceedings to avoid unnecessary duplication and protraction of legal process. Therefore, in light of the foregoing, the present petition is dismissed.
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2023 (12) TMI 1370
Suit for Declaration for declaring the plaintiff (respondent No.1 herein) as the Karta of Late Shri D.R. Gupta and Sons, HUF allowed - married daughter can be the Karta of a Hindu Undivided Family (HUF) or not - Whether the Hindu Succession Amendment Act, 2005 to Section 6 of the Act, 1956 is retrospective? - HELD THAT:- A “Joint Hindu Family” consists of male members descended lineally from a common male ancestor and included their unmarried daughters, wives, mothers and widows. A “coparcenary” is a narrower body which is a subset within a Joint Hindu Family where an interest in the property is created by birth. Though a joint family status is a result of birth, the possession of joint property is only an appendage and not prerequisite for the constitution of such a family as held in Haridas vs. Devaki Bai, 1926 SCC OnLine Bom 76. On the other hand, a “coparcenary” is created only when there is joint or coparcenary property.
Birth in the Joint Hindu Family, seniority by age and the status of being a Coparcener are the necessary qualifications to become a Karta. The traditional Law nowhere proscribed a female from being a manager but the requisite of being the “senior most male” was the necessary corollary of the fact that only male members of the Joint Hindu Family who were born within the degrees of coparcenary, were given the status of a Coparcener.
Whether recognition of a daughter as a Coparcener necessarily entitles her to be a Karta? - HELD THAT:- The concept of coparcenary is derived from the joint ownership of a common pool of assets held by a family and the necessary corollary was that who owns the property, would have a right to manage it. When under the traditional Hindu law, the woman was not entitled to coparcenary property; resultantly, she could not assume the position of Karta. However, the Amendment to Section 6 of the Act, 1956 redefines the meaning of coparcenary as understood under the traditional Hindu Law, which is no longer limited to devolution of interest in the coparcenary property alone but encompasses all other incidents of a Coparcener, including the right to be a Karta. To say that a woman can be a coparcener but not a Karta, would be giving an interpretation which would not only be anomalous but also against the stated Object of introduction of Amendment.
The appellant claims that the learned Single Judge failed to appreciate a significant aspect that performance of spiritual and managerial duties is by the Karta of the HUF which respondent No. 1 being a female, cannot perform. Thus, it has to be accepted that only the appellant, being the eldest male coparcener, is eligible to become the Karta of the “D.R. Gupta & Sons HUF” - This argument raises a fundamental question of the necessary competency of the woman to perform the religious and familial obligations of a Karta in the backdrop of Mitakshara Law.
Spiritual efficacy of a female Coparcener - HELD THAT:- The spiritual efficiency is an indispensable requirement under the Dayabhaga Law; however, the same cannot be presumed under Mitakshara law. It is amply clear from the above that the spiritual duties performed by a Karta of an HUF governed by Mitakshara law was only coincidental to the fact that only male descendants were entitled to become coparceners in the past. Thus, with the amendment in law conferring daughters with coparcenary rights, spiritual efficiency or the ability to perform certain rituals cannot become a prerequisite qualification for becoming a Karta of an HUF governed by Mitakshara law - Spiritual efficiency comes under consideration only when the question of preference arises. In the present case, the question of preference is obviated by the overt seniority by age of respondent No.1 in comparison to the appellant.
Non-Participation in the Affairs of the Family after Marriage - HELD THAT:- Being a Karta is conferment of legal status which includes right to manage the HUF properties and even if the appellant represented himself as Karta in official correspondence on behalf of HUF to manage the property, it does not take away the legal right of the eldest member of the Coparcener of the family, even if she is a woman, to stake a claim to be a Karta.
The right of the daughter of a Coparcener to enjoy the status of a Coparcener from the commencement of the Hindu Succession (Amendment) Act, 2005 cannot hinge upon the life span of her father. Such a distinction can certainly not sustain the test of intelligible differentia that was sought to be addressed through the Amendment.
Thus, in the present case, it is established there was no continuation of “D.R. Gupta & Sons HUF” after the demise of Shri D. R. Gupta in the year 1977 and the property got mutated in the name of all the legal heirs. In furtherance of such severance of status, the also parties determined the shares of each of the branch of the five brothers to be 1/5th as mentioned in the Memorandum of Settlement. Thus, even though no partition by metes and bounds took effect between the parties, a partition took place leading to severance of status of the undivided family into a divided family.
The respondent No. 1 is hereby declared as the Karta for the purposes of representing the “D.R. Gupta & Sons HUF” before the Competent Authority. Deficient Court fee be paid - there are no merit in the present appeal which is hereby dismissed.
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2023 (12) TMI 1369
Winding up of the respondent on the ground that it had failed to pay his admitted dues - Sections 434 and 439 read with Section 433(b), (e), (f) of the Companies Act, 1956 - HELD THAT:- Since the appellant’s salary slips placed on record are not disputed, it is evident that the TDS was deducted by the respondent and that it was liable to deposit the same with the concerned authorities at the relevant time - Similarly, the appellant also claimed that the respondent has failed to deposit the provident fund as reflected in the salary slips. The deposit of provident fund is also a statutory obligation and the failure to do so would invite proceedings by the concerned authorities.
Insofar as the other claims are concerned, this Court finds no infirmity with the impugned order dated 12.11.2018 holding that the same are subject matter of some controversy. It is settled law that proceedings under Section 433(e) of the Companies Act would lie only in respect of debts that are admittedly due. A company is not liable to be wound up under Section 433(e) of the Companies Act in respect of debts that are disputed. However, the company’s defence as to the claim of an admitted debt must be bonafide and not a moonshine defence.
In the present case, it cannot be accepted that the controversy raised by the respondent is, ex facie, untenable or a moonshine defence. Thus, there are no infirmity with the impugned orders passed by the learned Company Court except to the limited extent that the appellant’s claim regarding TDS and statutory dues has not been included in the admitted dues.
Insofar as the statutory dues regarding provident fund is concerned, it is not disputed that the respondent is liable to deposit the same. The learned counsel for the respondent states, on instructions, that the amount of outstanding provident fund will be paid to the appellant along with interest within a period of four weeks from date, if the same is not deposited with the concerned authorities.
It is clear that there is no dispute as to the payment of the amount of ₹ 2,62,800/-. The learned counsel for the respondent states that this amount would be paid along with the applicable interest. He states that in the event the respondent had not deposited the said amount with the PF authorities, the respondent shall do so within a period of four weeks from date along with applicable interest for the period.
The respondent shall deposit the admitted amount of ₹ 2,62,800/- along with full interest as applicable with the concerned PF authorities within a period of four weeks from today and provide the evidence for the same to the appellant - The respondent shall also pay costs of ₹ 50,000/- to the appellant within the said period - appeal disposed off.
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2023 (12) TMI 1368
Validity of order u/s 201/201(1A) as barred by limitation - TDS not deducted on lease rent to New Okhla Industrial Development Authority (NOIDA) - HELD THAT:- As gone through the provisions of section 201(3) of the Act as it stood at the relevant point of time and applicable to AY 2011-12, wherein it states that assessment for TDS return could not be framed beyond two years from the end of the Financial Year for which the assessment is sought to be framed. Accordingly, assessment framed by the Ld. AO on 28/12/2017 is barred by limitation.
Further, we find that for the regular TDS returns filed by the assessee for AY 2011-12, the erstwhile TDS Officer had already framed an assessment u/s 201/201(1A) of the Act on 15/03/2012 accepting the claim of the assessee. Hence, the assessments stood completed for the AY 2011-12. This assessment was neither reopened by the Ld. AO nor subjected to any revision proceedings u/s 263 of the Act by the Ld. PCIT. While this is so, there is absolutely no need for the Revenue to have framed yet another assessment on 28/12/2017 for AY 2011-12 by taking a divergent stand with regard to applicability of TDS on lease rent paid to NOIDA. When this fact was brought to the notice of the Ld. CIT(A), the Ld. CIT(A) did not even bother to give any finding on the same. Hence, we have no hesitation to hold that the second assessment framed on 28/12/2017 deserves to be quashed as void ab-initio for more than one reason and it is also barred by limitation. Appeals of the assessee are allowed.
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2023 (12) TMI 1367
Reversal of credit - Closure of factory - non receipt of goods accompanying invoices stand admitted by all the three parties - HELD THAT:- The contention which was however addressed by the appellant was that even if credit had been availed albeit fraudulently, the same would stand reversed at the time of issuance of invoices - This understanding of a reversal of credit is what has been answered against the appellant by the CESTAT.
It is thus manifest that the CESTAT was justified and correct in ultimately coming to conclude that reversal of credit would not sustain, at least in the manner as suggested by the appellant.
There are no merit in the appeal. The instant appeal along with pending application shall consequently stand dismissed.
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2023 (12) TMI 1366
Seeking grant of regular bail - illegal trade in psychotropic substances - Contraband item - inadmissible statements - no reasons to believe were recorded in writing - violation of Section 42 of the NDPS Act - HELD THAT:- Section 52-A of the NDPS Act prescribes that upon seizure of psychotropic substances, the officer shall approach the Magistrate, under whose presence and supervision the process of sampling will be conducted and certified to be correct. Though the application under Section 52-A of the NDPS Act has to be made without undue delay, no time limit for the same has been prescribed.
A Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi) [2021 (7) TMI 1422 - DELHI HIGH COURT], refused the grant of bail in a case involving commercial quantity of cocaine despite the sampling not being carried out in the presence of a Magistrate.
Recently a Co-ordinate Bench of this Court in SURENDER KUMAR VERSUS CENTRAL BUREAU OF NARCOTICS (CBN) [2023 (8) TMI 1548 - DELHI HIGH COURT] has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines.
There is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act - In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act.
Considering the facts and circumstances including the fact that commercial quantities of psychotropic substances have been recovered at the instance of the applicant, it is not possible to form a prima facie view at this stage, that the applicant is not guilty of the offences or that he would not commit similar offences if released on bail. Therefore, the twin conditions of Section 37 of the NDPS Act are not satisfied and bail cannot be granted to the applicant at this stage.
The present application is dismissed.
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2023 (12) TMI 1365
Penalty u/s 271(1)(c) - addition towards advance for sale of the land from the prospective purchasers - HELD THAT:- As noticed that the AO had specifically stated that the sale deeds as proffered by the assessee for the purpose of substantiating the advance received from prospective buyers was only to the extent of Rs. 5,74,000/-. The sale deeds proffered also did not show any advances having been received by the assessee prior to the execution of the sale deed. The assessee also had a claim that the balances of the advances received were refunded. There was absolutely no evidence proffered to show such refunds.
AO made the addition, which though modified by the First Appellate Authority was restored by the Tribunal and which restoration was upheld by this Court. In the penalty proceedings the Tribunal relied on the First Appellate Authority’s order and confirmed the penalty only with respect to the addition which was disallowed to be treated as advance for sale of land received from prospective buyers.
We find no appeal having been filed by the Revenue against the order of the Tribunal. Hence, the penalty can be only to the extent of that confirmed by the Tribunal, though the entire addition is confirmed in the quantum appeal.
Addition on account of difference of opening balance of capital as per the revised capital account - This court in the quantum appeal has found that this was reflected in the original returns filed before the block assessment and since there was no reopening of the assessment there can be no addition made in the block assessment. The penalty imposed hence has to be deleted.
Disallowance of claim u/s 54B and u/s 54 - The additions were sustained in the assessment order which was interfered with by the First Appellate Authority on the ground that they were declared in the regular return. Tribunal reversed the order of the First Appellate Authority in the quantum appeal and restored the additions made, since they were never claimed in the original return filed. The quantum appeal before this Court also has not dealt with the issue and Tribunal’s order stands confirmed.
Tribunal in the above circumstances found that the penalty is justified on this count also. However, we are of the opinion that if no deduction was claimed in the original return then definitely the capital gains would have been assessed to tax. If such assessment has already been made and deduction is now claimed under Section 54B and 54F in the block return and rejected there is no ground of imposition of penalty. We hence delete the penalty imposed on the ground of a wrong claim of Section 54B and 54F of the Act.
Receipt of gift from the assessee’s brother - AO, FAA , Tribunal and this Court in the appeal from the assessment order found that there is no evidence produced by the assessee to prove the amounts received as gift from his brother. Hence, the penalty imposed is justified and is upheld.
Appeal partly allowed.
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2023 (12) TMI 1364
Validity of Revision u/s 263 - substantial question of law or fact - there were discrepancies in the figure with regard to value of current assets and current liabilities shown in the balance sheet as on 31.03.2008 vis-à-vis the cash flow statement filed before the AO - Whether question of law admitted by this Court may not be treated as the substantial question of law as the ITAT has already answered the query of the appellant and the issue of difference in balance sheet and cash flow are factual issues which have already been considered by the revisional authority under the ambit of Section 263?
HELD THAT:- CIT(A) has dismissed the appeal exparte. Appeal had been filed before the Tribunal and the Tribunal had exparte restored the issue back to the file of CIT(A). CIT(A) also dismissed the appeal for non-compliance. Tribunal in the interest of natural justice had restored the issue to the file of the CIT(A) so that the, assessee could be granted the opportunity to substantiate its case. This clearly shows that the assessee is not interested in showing the reconciliation but is attempting to use technical reasons to avoid the responsibility. This scathing remark from the ITAT showcases the triviality of the matter at hand.
Additionally, the submissions made with regard to the section 255 of the Act showcases the intention of the petitioner to delay the case. While scrutinizing the documents at hand, it is clear that due compliance has been made with respect to the reassessment proceedings and all the subsequent appeals. Additionally, the petitioner has been provided with the regular chances to submit his representation. However, the petitioner has been delaying the same.
The submission of the petitioner cannot be entertained. ITA is hereby dismissed.
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2023 (12) TMI 1363
Entitlement of interest in respect of refunds sanctioned - for what duration/period such interest is payable to the respondent importer?
Whether interest is payable or not? - HELD THAT:- The refund claims filed by the respondent importer on 08.01.2014 is not proper from the angle of completion of documents. Further, such refund claim is also pre-mature in nature, as the assessment finally providing the concessional CVD was extended to the impugned goods on the basis of earlier decision passed in order dated 15.01.2015, by finally assessing the 28 B/Es on 27.03.2018. Further, the angle of unjust enrichment in respect of such refund claims was also examined after the respondent importer submitted additional documents on 30.08.2016. Similarly, in the case of other 2 B/Es, the additional documents were submitted on 27.03.2018 and on 27.04.2018 for completing the submission of proper refund claim. Thus, from these factual evidence also it can be concluded that there is no case of delayed payment of refunds in this case.
In terms of the provisions of Section 27 ibid, read with Customs Refund Application (Form) Regulations, 1995 framed thereunder, the complete refund application was submitted by the Respondent importer only after all the requisite documents evidencing the payment of differential duty, relevant agreements and the sale invoices for the products were produced before the Customs authorities, to demonstrate that the burden of differential duty paid by the importer respondent was not passed on to any other person. Hence, on the factual matrix of the case, it cannot be considered that the refund application in the present case was submitted on 08.04.2014, as claimed by the importer respondent.
The assessment order passed under Section 17 ibid, relates to the import of dietary supplement during the period 01.04.2011 to 30.03.2012; whereas the import of dietary supplements for which refunds has been claimed and sanctioned relates to the subsequent period viz., 31.03.2012 to 18.02.2013. Hence, the above facts clearly prove that the assessment order dated 15.01.2015 finalizing the benefit of concessional rate of CVD cannot form the direct basis for claiming consequential refund sanctioned through orders dated 05.10.2016 and 30.05.2018.
The stand taken by the learned Advocate that there was no dispute in respect of the twin issues determined by original authority, and the dispute is limited to only the point of determining whether the imported dietary supplement is a food or not, cannot be accepted. It is also a fact that the importer respondent did not object to the order dated passed by the Commissioner of Customs (Appeals) by filing an appeal, on the above stand. Hence the same cannot be agitated at this stage. For the same reason, the finding given in the impugned order that the dispute in respect of extending concessional benefit of CVD was finalized by the Commissioner of Customs (Appeals) in his order dated 09.10.2014 is also factually incorrect. Hence, there are no merits in the grounds argued by the learned Advocate on this point.
The impugned order allowing payment of interest claimed on refunds already sanctioned to the importer respondent, is not legally sustainable and hence the same is set aside - appeals filed by the appellant department is allowed by setting aside the impugned order.
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2023 (12) TMI 1362
Validity of reassessment beyond period of limitation - notice issued under Section 148 mentioned only the period of 30 days instead of 90 days as per the provisions u/s 148 - HELD THAT:- As considering the provisions of Sections 148, 148A and 149, the notice u/s 148A(b) shall not be invalid and on that ground, the reassessment proceedings cannot be quashed and set aside.
In the case of Naveen Verma [2011 (2) TMI 248 - PUNJAB AND HARYANA HIGH COURT] in the facts of the case before it, upon issuance of notice u/s 158BD by the AO giving lesser period of 15 days for filing return, notice is duly served, the assessee can either avail of the statutory time for filing of the return irrespective of shorter period mentioned in the notice or can be given fresh opportunity if it is held that the assessee suffered prejudice on account of shorter period mentioned in the notice.
Therefore, not permissible to quash the impugned notice merely on the ground that the period specified u/s 148 when the notice was issued, more particularly, when such notice would relate back to the assessment period, the time period provided for filing return was admittedly for 30 days, admittedly, such period, as may be specified in such notice. Therefore, the period of 30 days mentioned in the notice u/s 148 cannot be said to be fatal to the assumption of the jurisdiction by the AO in the facts of the case. Therefore, this contention raised on behalf of the petitioner is rejected.
Assumption of jurisdiction by the AO while issuance of notice u/s 148A(b) - As notice dated 28th March 2023 along with the Annexures issued under Section 148A(b) of the Act cannot be said to be the notice requiring the assessee to provide an opportunity of hearing to show cause as to why the notice under Section 148 of the Act should not be issued on the basis of the information which suggests that the income chargeable is escaped assessment. The notice is only in the nature of inquiry as contemplated under Section 148A(a) of the Act, which provides that before issuance of any notice under Section 148 of the Act, the Assessing Officer shall conduct an inquiry, if required, with prior approval of the specified authority with respect to the information which states that the income chargeable is escaped assessment. Therefore, though the notice was issued under the provisions of Section 148A(b) of the Act, in fact, such notice is u/s 148A(a) of the Act as the ingredients of notice which requires as per the statutory provisions of Section 148A(b) are not mentioned. AO has not provided any details with regard to income which has escaped assessment, but has called for the details for the period from the Financial Year 2014-15 to 2015-16 without mentioning the income as escaped assessment for the relevant Assessment Year 2016-17.
AO for the first time, in the order passed under Section 148A(d) of the Act has mentioned about bifurcation of the total transaction of Rs. 791.22 Crores out of which credit entries amounting to Rs. 86,63,62,755/- was mentioned pertaining to the period from 1st April 2015 to 27th April 2015 in the Suspicious Transaction Report.
On perusal of the impugned order u/s 148A(d) AO did not consider any of the contentions raised on behalf of the assessee on merits and reiterated only extract from the Suspicious Transaction Report - assessee has been given the entire details of transaction in reply along with the annexures, however, the AO did not consider the same and only observed that the assessee did not adduce any supporting document establishing the identity of the parties, genuineness of transaction and creditworthiness of the counter parties justifying the bank account transactions carried out are related to the business parties of the assessee.
On perusal of the record, it appears that the petitioner – assessee has submitted all the details along with reply filed on 9th May 2023 in such circumstances, in view of the above facts, the impugned assessment order u/s 148A(d) of the Act is not sustainable as the AO has failed to set out any opinion on the basis of the available information and material on record to arrive at the finding that it is a fit case to reopen the assessment under Clause (b) of Section 148A - In the case on hand, we are not required to examine the correctness of the contentions qua the facts of the case as raised on behalf of the petitioner as it would be premature as the case of the petitioner is based upon the legal contentions that the notice u/s 148A(b) is in the nature of notice u/s 148A(a) and that the notice issued u/s 148A(b) is without considering the contentions raised by the assessee in the reply to the notice under Section 148A(b) as per Clause (c) of Section 148A - On perusal of the notice under Section 148A(b) of the Act, it is clearly seen that the annexures do not contain any information, it is a questionnaire requiring the petitioner to provide details as sought for and therefore, it was an intention of the Assessing Officer who was to conduct an inquiry after receiving information from the assessee and therefore, notice is deemed to be the notice under Section 148A(a) of the Act. Thus, there is a gross procedural error from the very inception of the procedure rendering the same is bad in law.
[39] For the reasons recorded as above, as the notice dated 28th March 2023, though stated to be issued under Clause (b) of Section 148A of the Act, the same is, in fact, a notice under Clause (a) of Section 148A of the Act can be treated as such. As the time to issue notice under Section 148A(b) of the Act has already expired, no purpose would be served by issuing direction to the AO to conduct an inquiry considering the reply of the assessee as to whether to issue notice under Section 148A(b) of the Act or not.
The impugned order passed u/s 148A(d) as well as the notice issued under Section 148 of the Act are hereby quashed and set aside.
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2023 (12) TMI 1361
Violation of Human Rights - allegations of sexual harassment - Direction to Petitioner to supply information to the Respondents holding that the information sought by the Respondents does not fall under the exemption provided in the proviso to Section 24 of the Right to Information Act, 2005 - HELD THAT:- Considering the fact that the information requested is only about recruitment rules, thus bearing in mind the various judicial precedents, including the decision of this Court in titled Bimal Kumar Bhattacharya [2018 (3) TMI 1251 - DELHI HIGH COURT] as also the recent order of the Hon'ble Supreme Court in this Court is of the view that this is not a case which would involve any human rights violation and is accordingly not exempted by the proviso to Section 24 of the RTI Act, 2005.
The ED is exempted under section 24 of the RTI Act, 2005 from disclosing the said information. Accordingly, the impugned order dated 27th November, 2019 passed by the CIC is set aside.
In this case, the non-disclosure of information of allegations of sexual harassment, in the opinion of this Court, would fall clearly within the conspectus of human rights violations, as exempted by the proviso to Section 24 of the RTI Act, 2005. In view thereof, the ED is directed to disclose the information sought by the RTI Applicant/Respondent within eight weeks.
Petition disposed off.
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2023 (12) TMI 1360
Dishonour of Cheque - challenge to judgement of conviction and sentence - non-compliance with the conditions to deposit 20% of the compensation amount - Application for suspension of sentence and stay of proceedings based on insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The fundamental facts in this petition is that the application by the petitioners herein are debtors application under section 94 of the Code. It was filed, after they were found guilty for offence under section 138//141 of NI Act. The Hon'ble Supreme Court in Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] had unequivocally held that the proceedings under section 138/141 of NI Act will fall under the scope of moratorium referred in IBC subject to the exceptions mentioned in the Code.
The judgement of Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] is in respect of corporate debtor, which filed application under section 9 of the IBC. In the said judgment, the Hon'ble Supreme Court has held that the proceedings initiated under section 138 of NI Act falls within the scope of Section 14(1)(a) of the Code. In that judgment, at paragraph 102, the Hon'ble Supreme Court has made it clear that interim moratorium in a corporate debtor's application will not extend to the natural persons, who are prosecuted under section 138/141 of NI Act. Section 14 of IBC will apply only to the corporate debtor, the natural persons mentioned in Section 141 of NI Act continue to be statutorily liable.
The Directors as Signatory or Guarantor or Person responsible for the affairs of the company, which has issued cheque to discharge its liability, can not have the advantage of their application to declare them as insolvent as an individual to seek moratorium. If such plea is entertained, then as observed by the Hon'ble Supreme Court, it will lead to absurdity. To demonstrate, for instance, in this case, if the interim moratorium under section 96 is extended to these petitioners, who are the representatives of the company, which is not a corporate debtor facing resolution process under the Code, then the first accused company will stand without a natural person to represent. Being a proceedings with penal action, there can be no substitution for the petitioners as the Directors of the first accused company.
As the Hon'ble Supreme Court held that the moratorium given to the corporate debtor under Chapter II will not cover the individuals, who are the Guarantors of Directors. Similarly, the moratorium given to an individual under Chapter III will not cover the proceedings initiated against them as Directors or Guarantors of any company, which is not a corporate debtor under this Code.
This Criminal Original Petition is dismissed.
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2023 (12) TMI 1359
Seeking grant of interim bail - Money Laundering - bail sought on medical grounds - grievance of the applicant is that the applicant is not being provided proper and appropriate treatment in terms of post-epidural care in the prison premises, and thus, the applicant seeks that he be released on interim bail, in order to get appropriate treatment from Indian Spinal Injuries Centre, Vasant Kunj, Delhi - HELD THAT:- This Court notes that the medical facilities available at the jail dispensary is not able to provide the medical treatment which is required by the applicant, as advised by the doctors concerned in terms of post-epidural care after his spinal surgery. Thus, considering that at this stage, no immediate arrangement can be made by the jail dispensary for ensuring appropriate medical care of the applicant, this Court deems it fit, for the purpose of ensuring that a balance is struck between the right of the prisoners to appropriate medical care and the right of the State to ensure rule of law, to allow the request of applicant to get the required physiotherapy treatment at the Safdarjung Hospital, Delhi. In case, the required medical care is not available at Safdarjung Hospital, Delhi, the applicant may move a fresh application before this Court for being treated at Indian Spinal Injuries Centre, Vasant Kunj, Delhi.
The applicant be admitted to Safdarjung Hospital, Delhi, which is also a referral hospital as per Jail Referral Policy, Delhi for a period of two weeks, within two days of receipt of this order. However, the applicant shall continue to be in the custody of Superintendent of Jail concerned, and the Jail Superintendent concerned shall ensure that appropriate and adequate security is provided/deputed in the hospital since the accused will continue to remain in judicial custody though under treatment in the hospital.
Application disposed off.
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2023 (12) TMI 1358
Dishonour of Cheque - Challenge to the decree for money granted in the suit which was predicated on a dishonoured cheque - defendant resisted the suit contending that he never borrowed any money from the plaintiff - presumption u/s 118 of NI Act - HELD THAT:- No doubt, a strong presumption arises by the force of Section 118, ibid. in a case where the suit is filed based on a negotiable instrument. But, such a presumption is rebuttable. While considering the question as to how such a presumption can be rebutted, the Supreme Court in, BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT] has observed 'Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear.'
The plaintiff has admitted that he has not produced any document to show the lending; he has not produced any document to show that he was in possession of a sum of Rs. 23 lakhs on 04.11.2012, the date of alleged lending; he has not produced any document to show that he was carrying on some business fetching him income on the relevant date; he has admitted that he had no bank account; he has also admitted that he is not an Income Tax assessee. His claim that his mother lent him a sum of Rs. 15 lakhs, has been proved to be false by his own document, viz., Ex.A.12, sale deed, which shows that his mother had sold the property six years ago for a paltry sum of Rs. 4 lakhs.
A reading of the cross-examination of P.W.1 would show that not even a single utterance of him in his proof affidavit and the plaint is true. Undoubtedly, the conduct of the defendant in not lodging a police complaint and not sending a reply to the legal notice militates against him. But, the presumption that is drawn from the silence on the part of the defendant cannot undo the damage done by the plaintiff in his own cross-examination as P.W.1. The evidence in cross-examination of P.W.1 leads us to firmly believe that the presumption under Section 118, ibid., stood rebutted by the force of such evidence of P.W.1 himself.
It is not required to agree with the Trial Court in granting a decree for payment of money - the judgment and decree of the Trial Court are set aside - appeal allowed.
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