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2019 (3) TMI 1981
Principles of res-judicata - Seeking to commence arbitration proceedings for claiming "incentive payments" under Clause 14 of the Securities Purchase Agreement - seeking to resist the arbitration action initiated by the defendant on the plea that it is, inter alia, barred by res judicata - whether or not NCCL could continue with the 2nd or a new arbitration? - HELD THAT:- The doctrine has its roots in public policy. It, therefore, bars raising of an issue in a subsequent proceeding, which is directly and substantially in issue in an earlier proceeding between the same parties or between the parties claiming or litigating under the same title. Pertinently, the decision on which reliance is placed to invoke the doctrine of res judicata should be a decision of a Court of competent jurisdiction. It would, however, matter little if it is a Court of limited jurisdiction, that is, it is not competent to try the subsequent action or the action in which the issue has been raised subsequently.
As to whether constructive res judicata would apply in this case, one would have to examine whether the issue at hand concerning incentive payments is a mixed question of fact and law and, therefore, would require, if not, a full-blown trial at least a mini-trial. If it does, then, perhaps, this Court is not the appropriate forum to deal with this plea - what HSPL and TAQA, in effect, seek in terms of relief, both in the interlocutory application and the suit, is an anti-arbitration injunction. The Courts, ordinarily, have been very slow in granting injunctions whereby arbitration proceedings are brought to a standstill. The fundamental reason for this appears to be that the parties by entering into a contract would have necessarily agreed, as in this case, that all issues connected with or arising from the agreement entered into between them, would be tried by an Arbitral Tribunal duly constituted in terms of the agreement and, therefore, any sort of injunction granted by the Court would tantamount to aiding breach of the arbitration agreement.
In the instant case, I have not been able to come to a conclusion that the arbitration agreement has been rendered null and void, inoperative or incapable of being performed. These expressions were used by Mr. Sethi in the context of very same facts which were put forth to expound the bar of res judicata, waiver, and abandonment. Since, I have held that a trial would be required the same reasoning would hold vis-à-vis this submission as well.
The question raised is whether at this juncture it is just and convenient to injunct the 2nd Arbitration proceeding by labeling it as an abuse of process, which clearly is a mixed question of law and fact and would require trial - Since I have come to the conclusion that under the relevant SIAC Rules, the 2nd Arbitral Tribunal could adjudicate upon this aspect, it cannot be said at this stage, especially, in the context of arbitration proceedings that triggering of 2nd arbitration proceedings is an abuse of process.
The jurisdiction, as alluded to above, with regard to constructive res judicata and other legal pleas could justly and conveniently be adjudicated upon by the 2nd Arbitral Tribunal. Therefore, no case is made out for injunction by this Court.
Application dismissed.
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2019 (3) TMI 1980
Seeking issuance of writ of habeas corpus - Seeking liberty of detenue - passing remand order invoking Section 267 Cr.P.C. - grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on PT warrant without effecting his arrest and that the accused is being remanded on PT warrant, contrary to provisions of Section 267 Cr.P.C. - HELD THAT:- In the instant case though the petitioner was released on bail in crimes registered against him, the reason for he being kept in prison is not reflected in the material placed on record. On the other hand, the application filed before the Lower Court seeking recall of PT warrant show that to the knowledge of the petitioner he has not been arrested in any other crime and there was no remand under Section 167 Cr.P.C., meaning thereby that the petitioner was not aware or was not able to give a clear picture as to whether his arrest has been shown in any other crime - Since the prisoner was in remand as on the date of passing of the order by the Concerned Court, the Jail Authorities produced the alleged prisoner before the Court on the respective dates and having heard the matter, passed an order under Section 167 Cr.P.C. remanding him to judicial custody, which is being extended from time to time as required under Section 167 Cr.P.C. Unless that judicial order is set aside by the Competent Court, it is pleaded that the custody cannot be termed as legal.
As seen from the record, the petitioner is involved in number of crimes relating to theft and illegal transportation of red sander logs cut in Simhachalam Forest. Though he was detained under preventive detention laws, his detention order was set aside on technical ground. Fact remains that he is shown as an accused in number of crimes in different police stations of the State. Steps are being taken for his production in almost all the police stations through PT warrant before the Concerned Courts. It is also to be noted here that if PT warrants are issued by different Courts for production of the alleged detenue before the respective Courts, then it would be practically impossible for the police to produce the prisoner before various Courts at various places on a particular date and eventually the order of the High Court could not be complied with.
When the prisoner is detained pursuant to the judicial order passed by the Magistrate, one cannot term such detention, as illegal, as there is distinction between illegal custody and custody made in pursuance of the judicial orders. Unless judicial orders are set aside, the petitioner cannot be released holding his detention as illegal and improper - the issuance of writ of habeas corpus would not arise when remands are made pursuant to a judicial order.
Petition dismissed.
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2019 (3) TMI 1979
Assessment u/s 153C - Validity of satisfaction note on the basis of which the assessing officer initiated the proceedings u/s 153C - HELD THAT:- As seen that the impugned satisfaction note provided to the assessee vide AO’s letter unsigned, with no date indicating the date on which satisfaction was drawn, and with no mention of the assessment year for which satisfaction was drawn, while the satisfaction found in the assessment folder is on the note sheet side (X2) - with no page marking on the satisfaction prior to 06.01.2016 when the assessment folders were sent back to the AO by me, but subsequently found marked in the case of the appellant and that of Sh. Kartik Patel and Sh. Abhishek Kartik Patel and in the case of Smt. Meenakshi Patel and M/s Kartik Chandulal Patel HUF (in fact the satisfaction in the file of Sh. Kartik Pate! is that of Smt. Meenakshi Patel) - and the correspondence sheets are marked up to pages 187, 411, 192, 194 and 187 respectively which do not include tne satisfaction note on the correspondence side.
Besides, on the satisfaction note, both X1 & X2, the name of the searched company M/s Sheela Foam Pvt Ltd is noted on top, meaning thereby that the satisfaction was recorded in the case of SFPL on 28.08.2013 when notice u/s 153A was issued to SFPL, but there is no satisfaction recorded in the case of the appellants (Kartik Patel Group hamily members). In this view of the matter, and in terms of the AO’s reply that “the undersigned is unable to explain the unsigned/undated copies of satisfaction notes as claimed by the assessee”, the satisfaction enclosed with the AO’s letter F.No.DCIT/CC- 11/2013-14/1634 dt. 06.01.2014 sent to the assessee cannot be considered as valid satisfaction of the AO. We further note that since the AO has mentioned in his reply dt. 14.01.2016 that “The assessment records as available in this office were sent as desired by your goodself, it is necessary to mention that the assessment folders of all the five cases of the group was sent back to the AO on 06.01.2016 and the AO’s reply is dt. 14.01.2016.
We do not find any reason to interfere in the order of the Ld. CIT(A), wherein it has been held that the satisfaction recorded by the AO and the issuance of notices u/s. 153C of the Act held to be invalid and therefore, the reassessment orders in this case cannot be sustained and appeal of the assessee was rightly partly allowed on the legal issue itself, hence, we uphold the action of the Ld. CIT(A) on the legal issue and dismiss the appeal of the Revenue.
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2019 (3) TMI 1978
Reference made to the DVO u/s 142A - Addition u/s 69B - HELD THAT:- Admittedly, section 142A of the I.T.Act is a procedural provision and applies to pending assessments. In the instant case, the reference u/s 142A of the I.T.Act to the DVO was made on 06.12.2004 and the assessment was completed only vide order dated 30.03.2005. The assessment so completed vide order dated 30.03.2005 has not become final and conclusive because the appeal was filed by the Revenue and the same is being considered by the Tribunal. Therefore,since the assessment has not attained finality, the amended provisions of section 142A of the I.T.Act (with effect from 01.10.2014) will have application to the facts of the instant case (since the above said provision is a procedural provision and not a substantive provision).
The amended provisions, viz., section 142A(2) states that the Assessing Officer may make a reference to the DVO whether or not he is satisfied with the correctness and completeness of the accounts of the assessee. Further the amended provision requires the DVO to give opportunity of being heard to the assessee and send a copy of the report to the assessee. The amended provision of section 142A of the I.T.Act (w.e.f. 01.10.2014), going by the dictum laid down by the Hon’ble Apex Court in the case of Sunita Mansingha [2017 (4) TMI 303 - SUPREME COURT] has application to the facts of the instant case. Having held that the amended provision of section 142A of the I.T.Act has application to the facts of the case, we have to necessarily hold the rejection of books of account is not a pre-condition for reference to the DVO u/s 142A of the I.T.Act.
Also we notice that in the instant case various discrepancies in the valuation report pointed out by the assessee was never addressed to by the DVO nor by the Assessing Officer. On the contrary, the Assessing Officer did not give proper opportunity of hearing to the assessee on account of the assessment becoming time barred and this is clear from para 5 of the assessment order, wherein it is mentioned “since the case is getting time barred by limitation on 30.01.2005, the contentions raised by the assessee could not be considered at this stage”.
It was clear that there was no proper examination either by the DVO nor by the Assessing Officer with regard to the objections raised by the assessee in regard to the valuation report. A.O. had also stated that DVO’s report is binding on him. This statement of the A.O. is incorrect. The report of the DVO is only advisory in nature and not binding on A.O. Therefore, we deem it appropriate to restore the issue to the Assessing Officer to consider the objections of the assessee, so that the discrepancies / objections raised by the assessee to the valuation report could be addressed and a clear finding can be given on the discrepancies / objections of the assessee Therefore, the finding of the CIT(A) on this score is set aside.Revenue’s appeal is allowed for statistical purposes.
AY 2002-03 - When the new Sec.142A was inserted by the Finance (No.2) Act, 2014, the proviso to Sec.142A(3) did not exist as it no longer served any purpose. The legislature was conscious of the fact that the substitution of Sec.142A by the Finance (No.2) Act, 2014 was made only for the purpose of overruling the legal position as interpreted by various High Courts and Supreme Court in the case of Sargam Cinemas [2009 (10) TMI 569 - SC ORDER] The legislature did not make the law retrospective in operation nor were pending proceedings saved as was done when Sec.142A was inserted by the Finance (No.2) Act, 2004 w.r.e.f. from 15.11.1972. It cannot also be said that Sec.142A as inserted by the Finance Act, 2014 has retrospective effect. Therefore, the reference to DVO in the present case is invalid because rejection of books of accounts is a pre-condition for making a reference to DVO and there was admittedly no such rejection of books of accounts.We also find that the value as declared by the Assessee in its books of accounts was much higher than the value as was estimated by the Registered Valuer in the report filed by the Assessee and therefore there was no occasion to draw any inference that investment in construction as recorded in the books of accounts was less calling for any addition u/s.69B of the Act.
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2019 (3) TMI 1977
Validity of assessment u/s 153A - whether ITAT is correct in law in holding that the scope of section 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income that comes to the notice of the AO? - HELD THAT:- The issues are squarely covered by Judgment of this Court in the case of Commissioner of IncomeTax v. Deepak Kumar Agarwal [2017 (9) TMI 850 - BOMBAY HIGH COURT] in which it is held that assessment under section 153A of the Income Tax Act, 1961 can be made only on the basis of incriminating material found during a search. No question of law arises
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2019 (3) TMI 1976
Seeking winding up of the respondent Company - Sections 433(e), (f), 434(1) (a) & (c) and 439 of the Companies Act, 1956 - HELD THAT:- A company is unable to pay its debt only when a demand is served at the registered office of the company to pay the sum so due and the company despite lapse of 3 weeks neglects to pay the sum or to secure the same. A petition under Section 433(e) can only be entertained after compliance of the mandatory procedure of Section 434 (1)(a) of the Companies Act. As no statutory notice has been sent against the company, namely, Times Internet Ltd, the said company cannot also be impleaded or subjected to a winding up proceeding.
The present petition is accordingly dismissed with liberty to the petitioner to take steps as per law against the actual entity.
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2019 (3) TMI 1975
Ex-parte order - Miscellaneous Application has been filed by the applicant against the order of Tribunal in dismissing the appeal in limine as the applicant had not signed grounds of appeal and had also not appeared on the date of hearing - HELD THAT:- The applicant states that it had not received any of the notices of hearing. Further, it had made good the deficiencies in the Memo of Appeal and hence, has requested that the ex-parte order be recalled.
We recall the ex-parte order passed in the case of applicant and direct that the same may be fixed for hearing in regular course. Notice of hearing be issued to the parties and in case any other defect is remaining to be rectified, then the same also be made good by the applicant. In the result, Miscellaneous Application of applicant is allowed.
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2019 (3) TMI 1974
Supersession to Indian Administrative Service (IAS) from Orissa administrative Service (OAS) - Legality of selection process for promotion to the Indian Administrative Service for the year 2015 and 2016 - validity of notification regarding promotion of the officers of State Civil Service of Odisha to the IAS for the vacancies of the year 2015 - Violation of IAS (Recruitment) Rules, 1954 read with the IAS (Appointment on Promotion) Regulations, 1955.
Whether the minor penalty imposed on the applicant vide order dated 24.9.2011(Annexure-A/6 to the OA) can be considered more than once for denying promotion of the applicant to IAS, particularly since the CCRs of the applicant continue to be ‘Outstanding’ for which State Government recommended his case for years 2013 to 2017? - HELD THAT:- From the guidelines of DOPT OM dated 28.4.2014, it is stipulated that in the case of promotion of an officer on whom a penalty has been imposed in disciplinary proceedings, the DPC in assessing the suitability of an officer, will have to take into account circumstances leading to the imposition of the penalty and then decide whether in the light of general service record of the officer, he/she should be assessed to be fit or unfit for promotion. Further, denial of promotion to such an officer after the penalty period is over will be violation of the Article 20 of the Constitution of India provided in sub para (i) of para 7 of the guidelines extracted above. Hence, after the period of penalty is over, it was necessary for the selection committee to have assessed the suitability of the applicant with regard to his overall service record to assess his suitability taking into account the imposition of the penalty. However, during currency of the penalty, the officer would be unfit for promotion.
Comparing the guidelines of the DOPT, with the internal guidelines of the UPSC dated 14.2.2014 (Annexure-R/3/1) for promotion to IAS, it is noticed that the internal guidelines of UPSC, applied by the respondent no.2 to the case of the applicant (vide the paragraph 5.1 and 6.2 of the Reply filed by the respondent No.2) provide for classifying an officer as unfit if in any of the years in the assessment matrix, the penalty imposed has some implication, even when the date of consideration is after the expiry of the period of penalty.
The case of the applicant deserves to be reconsidered in the interest of justice, since as stated in the counter filed by the respondent No.2, the applicant’s case was decided only on the basis of the fact that a penalty was imposed even though the currency of that penalty was over by the time the applicant was considered for promotion, without assessing his overall performance for the years in question as required under the DOPT guidelines - Application allowed in part.
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2019 (3) TMI 1973
Cessation of liability u/s 41(1) - liability against the total addition made by the AO towards outstanding land advance treated as income u/s 41(1) - HELD THAT:- In this case, the Assessing Officer had considered the liability as ceased/non-existence, because of the fact that the liability is being shown as outstanding and the assessee has not provided confirmation from the creditors or has failed to provide necessary details like PAN/Address of the creditors or there is no possibility of the creditors claiming their debts in future and applied section 41(1) of the Act by adding the liability to the taxable income of the debtor.
It is an agreed position that in the assessee's balance sheet, the impugned liabilities have been shown, which are payable to the sundry creditors. Such liabilities, shown in the balance sheet, indicate the acknowledgement of the debts payable by the assessee. Merely because such liability is outstanding for the last two to three years, it cannot be presumed that the said liabilities have ceased to exist. It is also conceded position that there is no bilateral act of the assessee and the creditors, which indicates that the said liabilities have ceased to exist. In absence of any bilateral act, the said liabilities could not have been treated to have ceased.
CIT(A) has rightly held that the AO was not correct in coming to the conclusion that the entire land advances of ₹.2,84,45,000/- should be treated as income for the assessment year 2014-15 under section 41(1) of the Act by rejecting the contention of the assessee that the portion of the outstanding liability amounting to ₹.1,66,90,000/- had been admitted in the Return of Income filed for the assessment year 2014-15. Thus, in view of the above facts and circumstances of the case, we are of the considered opinion that the CIT(A) has rightly directed the Assessing Officer to delete the balance liability amounting to ₹.1,17,55,000/- which the assessee claims not having been written off yet in its books of account. Thus, the ground raised by the Revenue stands dismissed.
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2019 (3) TMI 1972
TP Adjustment - comparable selection - inclusion or exclusion of certain comparables by the Tribunal while carrying out FAR in case of the Assessee - Tribunal discarded two entities namely Motilal Oswal Investment Advisory Pvt. Ltd. and Brescon Corporate Advisors Pvt. Ltd. on the ground that these companies were merchant bankers or investment bankers and cannot be compared with the Assessee who was investment subadvisor - third instance of comparable is of ICRA Management Consulting Services Ltd. Tribunal accepted the Assessee's contention that ICRA Management provided a safe comparable. The Revenue disputes these three findings of the Tribunal.
HELD THAT:- Through Judgment in the case of Commissioner of Income Tax-10, Mumbai Vs. Carlyle India Advisors (P) Ltd. [2013 (4) TMI 486 - BOMBAY HIGH COURT] this Court has confirmed the Tribunal's view that the case of investment advisor or subadvisor cannot be compared with a merchant banker or investment banker. The first two instances discarded by the Tribunal, therefore, do not call for any interference.
Insofar as the comparison with ICRA Investment is concerned, here also, the issue is covered against the Revenue in the decision of The Commissioner of Income Tax3 Vs. Temasek Holdings Advisors India Pvt. Ltd. Income [2016 (11) TMI 1510 - BOMBAY HIGH COURT]. - Decided against revenue.
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2019 (3) TMI 1971
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is to be clarified that to initiate proceeding under Section 9 of the Code, notice under Section 8 is mandatory. After sending the valid notice under Section 8, if the Corporate Debtor fails to make the payment within 10 days, then only the person gets right to file petition under Section 9 of the IB Code, 2016.
Admittedly, on the date of issuance of Section 8 notice under IB Code, Petitioner was not authorized for initiation of CIRP. By the implication of the judgement of Hon’ble Supreme Court, Ld. Counsel for the Petitioner states that Ms. Meetu Bajaj has got authority for initiation of CIRP retrospectively. Since the proceedings/notice under Section 8 was issued without authority, even if we consider that Ms. Meetu Bajaj has been authorized for initiation of CIRP retrospectively, then demand notice under Section 8 is necessary and if the Corporate Debtor fails to make payment then only Petition under section 9 can be filed.
In this case, the Petitioner was not authorized to initiate CIRP on the date of issuance of notice and therefore, by ratification of Board Resolution, Notice under Section 8 of the IB Code cannot be validated. Since Notice under Section 8 of IB Code is not valid, Petition under section 9 is not maintainable therefore, the petition under section 9 filed under I&B Code, 2016 is dismissed.
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2019 (3) TMI 1970
Award of death penalty - Rape - acquittal of the accused - offences punishable Under Sections 395, 302 read with 34 of the Indian Penal Code, Section 376 (2)(g), Section 307 read with Section 34 of the Indian Penal Code, Sections 396, 397 and 398 of the Indian Penal Code - HELD THAT:- The case rests on the deposition of these two eye witnesses PW1 & PW8, and they identified the Accused either in the TI parade and/or before the Court. Considering the entire material on record, it appears that the prosecution in support of its case has solely relied on the evidence of identification. At this stage, it is required to be noted that though the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case. Though, as per the case of the prosecution, the Accused stripped the ornaments from the wife and daughter of Trambak and took ₹ 3,000/- from Trambak, there is no recovery except one broken white metal chain, which was allegedly seized during the house search of Bhojubai Appa Shinde, the mother of A5 on 26.06.2003.
PW8 who claims to be an eye witness, she is not a reliable and trustworthiness witness. Her entire testimony in Court is full of material omissions/contradictions/improvements. Prior to her deposition in Court, her two statements dated 6.6.2003 and 7.6.2003 were recorded by the police and the magistrate respectively. The entire description of incident given by PW8 in the Court has not been stated by her in her earlier statements. This evidence has come for the first time during the deposition in Court by way of an improvement - The first time PW8 gave any details about the incident or ascribed the roles to the Accused persons was two and a half years later in the Court and never before that. Her failure to give any statement to the police and the two magistrates either about the events occurring during the incident or the roles played by different persons render her evidence unreliable. When in her cross-examination, she was confronted with such omissions/improvements, she has taken only one thing that she told this to the police but she does not know why the police did not record the same. However, the same is not corroborated by any other evidence, more particularly the deposition of the IO and/or the magistrates. Therefore, it is unsafe to rely upon the deposition of PW8 and to convict the Accused. It is also required to be noted that even according to PW8, she was subjected to rape, however, the prosecution has miserably failed to prove the rape on her by leading cogent evidence, more particularly the forensic evidence. Therefore, to that extent also she is not reliable.
There is one another reason why PW8 is not to be believed on the ground that she is unreliable and not trustworthy. It is required to be noted that on 7.6.2003, i.e., two days after the incident, her statement was recorded by PW13 - Ramesh Sonawane - Special Executive Magistrate in the hospital. PW13 was called by the investigating officer to record her dying declaration. It has come on record that her dying declaration/statement was recorded on 7.6.2003, i.e., two days after the incident, PW8 identified photographs of four people from album of notorious criminals as those who committed the offence. Admittedly, the present Accused are not amongst those four persons identified by PW8 from the photo album. It is required to be noted that in her deposition she had not stated anything about her statement recorded by PW13 on 7.6.2003 and she identified the photographs of four people from album of notorious criminals shown to her. Therefore, to that extent, there is also a suppression of material fact by PW8.
Nothing is allowed by the law which is contrary to the truth. In Indian criminal jurisprudence, the Accused is placed in a somewhat advantageous position than under different jurisprudences of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human rights at a much higher pedestal and the Accused is presumed to be innocent till proven guilty. The alleged Accused is entitled to fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic Rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India.
Murder and rape is indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt - the prosecution/investigating agency is expected to act in an honest and fair manner without hiding anything from the Accused as well as the Courts, which may go against the prosecution. Their ultimate aim should not be to get conviction by hook or crook.
The investigating officer ought to have conducted an investigation on that line and ought to have arrested those four persons and ought to have conducted the investigation qua those four persons. On the contrary, the Accused in the present case were arrested after a period of one and a half months and that too on transfer warrants, though there was no description of the Accused given by either PW1 or PW8. A6 was arrested after a period of one and a half year. It is to be noted that all the Accused persons are nomadic tribes coming from the lower strata of the society and are very poor labourers. Therefore, in the facts and circumstances of the case, false implication cannot be ruled out since it is common occurrence that in serious offences sometime innocent persons are roped in.
The conviction and sentence imposed by the High Court cannot be sustained. The prosecution has failed to prove the case against the Accused beyond reasonable doubt - this is a fit case for further investigation Under Section 173(8) of the Code of Criminal Procedure qua those four persons, who were identified by PW8 on 7.6.2003, the reference of whom is in the statement recorded by PW13.
The State of Maharashtra is directed to pay a sum of ₹ 5,00,000/- to each of the Accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned Accused on proper identification. The learned Sessions Court is directed to see that the said amount shall be used for their rehabilitation.
Murder and rape is indeed a reprehensive act and every perpetrator should be punished - the Chief Secretary, Home Department, State of Maharashtra are directed to look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape. Therefore, the Chief Secretary, Home Department, State of Maharashtra are directed to enquire into the matter and take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from today.
The criminal appeals preferred by the Accused are hereby allowed, and all the Accused are hereby acquitted for the offences for which they were tried. They shall be released forthwith, if not required in any other case - Application disposed off.
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2019 (3) TMI 1969
TDS u/s 195 - non-deduction of TDS on the payment made to foreign entity in USA and Italy (SPA) holding the same as commission - whether such payments made was in the nature of commission or fee for technical services and the assessee only named the same as commission - HELD THAT:- DR though relied on the orders of the Assessing Officer, but did not object to the contention of the learned AR that the issue involved in both these appeals are squarely covered by the decision of Co-ordinate Bench in assessee's own case for A.Y. 2010-11 [2019 (1) TMI 537 - ITAT DELHI] whereby in the identical facts of the case, the payments made to the same agents have been treated as commission and not as fee for technical services - Decided against revenue.
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2019 (3) TMI 1968
Non-issuance of section 143(2) by the AO having territorial jurisdiction - Transfer of assessee jurisdiction - HELD THAT:- CIT(A) hold that the Assessing Officer has assumed jurisdiction based on PAN basis. He is fair enough in not disputing the clinching fact that the assessee’s jurisdiction already stood transferred to latter AO who has framed assessment for preceding assessment year 2014-15 in its case on 30.09.2016. Hon’ble jurisdictional high court decision in Smt. Smriti Media [2011 (4) TMI 1158 - CALCUTTA HIGH COURT] holds that such an assessment without having territorial jurisdiction is not sustainable in the eyes of law. We draw support therefrom to hold that the impugned assessment framed is not valid. The same is accordingly quashed. Appeal of assessee allowed.
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2019 (3) TMI 1967
Maintainability of appeal - low tax effect - HELD THAT:- Revenue is in appeal against the order of CIT (Appeal) in deleting the addition made by the AO to the returned income being a non genuine speculative loss. Prima-facie, the tax effect involved in appeal is less than the monetary limit prescribed by the recent CBDT Circular for filing of appeals before the Tribunal by the Department. CBDT vide Circular No. 3/2018, dated 11-07-2018 has raised the monetary limit of tax effect for filing of appeals by the Department before the Tribunal to ₹ 20 lakhs. Circular applies to the appeals to be filed by the Department in future as well as the appeals pending before the Tribunal. Without going into merit of the issues raised in the appeal, in view of the CBDT Circular the present appeal of the Revenue is dismissed on account of low tax effect.
We clarify here that the Revenue shall be at liberty to approach the Tribunal for restoration of appeal, with the requisite material to show that the appeal is protected by the exceptions mentioned in Para 10 of the Circular - Appeal of the Revenue is dismissed.
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2019 (3) TMI 1966
Disallowance of expenditure under various heads - Addition on the ground that the assessee has claimed huge and exorbitant expenses and the genuineness of the same were not established - as per CIT-A expenditure claimed by the assessee are incurred as well as directly relatable for the purpose of earning profit on the activities carried out by the assessee and therefore the disallowance made by the AO is unjustified - HELD THAT:- DR has not been able to controvert the findings of First Appellate Authority. In the absence of any contrary material, we find no reason to interfere with the reasoned findings of Commissioner of Income Tax (Appeals). The same are upheld, accordingly and the appeal of Revenue is dismissed being devoid of any merit. - Decided against revenue.
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2019 (3) TMI 1965
Validity of re-assessment order - suo motu revision proceeding - sales tax exemption on sale turnover - HELD THAT:- The petitioner dealer is entitled to get any opportunity of hearing and to place its case. Accordingly, we have no hesitation to set aside the order dated 11.1.2005 passed by the Assistant Commissioner of Commercial Taxes, Sundargarh Range, Rourkela under Rule 80 of the Orissa Sales Tax Rule for the assessment year, 1997-98 and direct the assesseepetitioner to appear before the said authority on 2nd May, 2005 and file its show cause. On its appearance on the date fixed, the Assessing Officer shall fix up the date of hearing and dispose of the matter within a period of two months from the date of appearance of the petitioner. The Assessing Officer shall act on production of the certified copy of this order.
In that view of the matter, the basis on which suo motu revision was initiated does not survive. Thus, the suo motu revision proceeding for re-assessment is required to be quashed and the same is quashed.
Petition allowed.
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2019 (3) TMI 1964
Time Limitation for filing suit - suit is bad for misjoinder of parties in cause of action or not - amendment of agreement of sell - proprietary possession of the entire suit property - subsisting Agreement to sell capable of specific performance - commitment of breach of the contract - plaintiff has been ready and willing to perform the Agreement to sell or not? - time for payment was the essence of the contract or not - Agreement to sell was breached, repudiated, abandoned, and given up or not - specific performance of the Agreement to sell - HELD THAT:- The Courts below have come to the conclusion that the clauses in the Agreement have neither been amended nor varied. Merely because the Defendants were pursuing the application filed for permission before the L&DO, it cannot be said that the date fixed for performance of the Agreement stood extended. The findings of the Courts below have been agreed upon, that the suit ought to have been filed within three years from 31.03.1975 which was the date that was fixed by the Agreement. The submission made on behalf of the Plaintiffs that part II of Article 54 of the Schedule to the Limitation Act applies to this case and that the suit was filed within limitation as the refusal by the Defendants was only in the year 1987 is not acceptable. Moreover, the Plaintiffs have not performed their part of the Agreement within a reasonable period. As per the Agreement, the Plaintiffs were given the right to get the sale deed executed through the Court in case of failure on the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance.
The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and the finding in this regard made by the Trial Court is approved.
The Courts below have found that the Plaintiffs failed to prove their readiness and willingness to perform their part of the Agreement. The failure on the part of the Plaintiffs in not paying the monthly instalments of ₹ 7,000/-, not collecting the rent from the tenant on the ground floor, not paying the house tax etc., and not taking any action for eviction of the tenant on the ground floor are some of the points held against the Plaintiffs by the Courts below which show that they were not ready and willing to perform their part of the Agreement. There is no compelling reason to re-examine the said findings of fact by the Courts below in exercise of our jurisdiction under Article 136 of the Constitution of India - the Plaintiffs have not proved their readiness and willingness to perform their part of the Agreement and, therefore, are not entitled to a decree of specific performance.
Appeal dismissed.
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2019 (3) TMI 1963
Revision u/s 263 - addition u/s 69 in respect of land purchased from Pingle family - HELD THAT:- In the present case, it cannot be said that no enquiry was carried out by the AO, at the most it is a case of inadequate enquiry. Even in that case, the provisions of section 263 cannot be invoked. The Explanation 2(1) to Section 263 inserted by the Finance Act 2015 w.e.f. 01-04-2015 would not change the matrix of case as the amendment would not apply retrospectively. Thus, in the facts of the case, impugned order is set aside and the appeal of assessee is allowed.
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2019 (3) TMI 1962
Refund of unutilized Cenvat credit - Time limitation - Section 11B of Central Excise Act, 1944 - rejection also on the ground that the services are not eligible input services - HELD THAT:- On perusal of relevant date under section 11B I did not find any clause covering the issue related to filing claim of unutilized Cenvat credit under Rule 5. Under the heading “relevant date” under Section 11B of Central Excise Act, 1944 the residuary clause is “in any other case the date of payment of duty”. In the present case the question of payment of duty does not arise since refund is in respect of the accumulated Cenvat credit - the lacuna in Notification No.27/2012-CE(NT) which provides procedure for filing application for refund of unutilized Cenvat credit was identified by authorities and through Notification No.14/2016-CE(NT) dated 01.03.2016 and the said Notification No.27/2012 was amended to the effect that time limit was fixed for one year for claiming such refund of accumulated Cenvat credit from the date of receipt of payment in convertible foreign exchange - the finding by Revenue that said refund was hit by limitation under section 11B is not sustainable.
CENVAT Credit - denial of refund on the ground that the said services were not eligible as input services - HELD THAT:- As on the date of filing of refund applications, the said credit was available on record and was not denied to be admissible to the appellant. Therefore as per provisions of Rule 5 of Cenvat Credit Rules it was accumulated Cenvat credit and as such subsequently it could not be denied to the appellant.
Appeal allowed - decided in favor of appellant.
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9911796707
