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Showing 101 to 120 of 1472 Records
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2020 (3) TMI 1373 - SUPREME COURT
Jurisdiction - whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment? - HELD THAT:- Before the Full Bench of the Bombay High Court as well as the Three Judge Bench of this Court in SHANKAR VERSUS STATE OF MAHARASHTRA AND ORS. [2018 (8) TMI 2058 - SUPREME COURT], the issue as to whether the High Court has jurisdiction under Article 226 to stay the consequences of deeming provision was neither considered nor answered. We may clarify that in event there are no orders staying the consequences of deeming fiction as envisaged in proviso to Section 5B, the election shall automatically stand terminated retrospectively but in the present case in the facts of both the appeals, the consequences of deeming fiction as contained in second proviso to Section 5B were stayed/interdicted by order of the High Court, hence the retrospective termination could not take place.
From the preposition laid down by this Court in Bihar Public Service Commission and Another Vs. Dr. Shiv Jatan Thakur and Others [1994 (7) TMI 374 - SUPREME COURT], it is clear that such interim direction can be passed by the High Court under Article 226, which could have helped or aided the Court in granting main relief sought in the writ petition. In the present case, the decision of the Caste Scrutiny Committee having been challenged by the writ petitioners and the High Court finding prima facie substance in the submissions granted interim order, which ultimately fructified in final order setting aside the decision of the Caste Scrutiny Committee. The interim order, thus, passed by the High Court was in aid of the main relief, which was granted by the High Court.
The provision of Section 11A of the Land Acquisition Act, which provides for the period within which an award shall be made contains a legislative scheme in reference to the Land Acquisition Act, 1894, the Explanation to Section 11A providing that in computing the period of two years referred to in Section 11A, the period during which any action or proceeding to be taken in pursuance of said declaration is stated by an order of the Court shall be excluded. Section 11A is a legislative scheme in reference to Land Acquisition Act, which provision is entirely different and does not lend any support to the submission made by the learned counsel for the appellant.
There is no fetter in the jurisdiction of the High Court in granting an interim order in a case where caste claim by respondents was illegally rejected before the expiry of period of six months and the High Court granted the interim order before the expiry of period of six months. In the facts of the present case, the deeming fiction of retrospective termination of the election could not come in operation due to the interim order passed by the High Court, hence deeming fiction under Section 5B second proviso never came into existence to retrospectively terminate the election of the respondent.
It is thus concluded as follows:
(i) Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of High Court under Article 226 of the Constitution.
(ii) The High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under second proviso to Section 5B, provided the legal fiction had not come into operation.
(iii) The interim order dated 18.08.2017 in Writ Petition No.2269 of 2017 as well as the impugned final judgment dated 02.04.2019 were not beyond the jurisdiction of High Court under Article 226 of the Constitution.
(iv) The interim order dated 22.08.2017 and final judgement dated 02.04.2019 in Writ Petition No.145 of 2018 were not the orders beyond the jurisdiction of High Court under Article 226 of the Constitution.
Appeal dismissed.
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2020 (3) TMI 1372 - ITAT MUMBAI
Income accrued in India - Addition on account of “interest income on securities- including T bills” - India-Mauritius Tax Treaty - Satisfaction of “beneficial ownership” requirement - treaty protection under article 11(3) of the India Mauritius Double Taxation Avoidance Agreement - HELD THAT:- As decided in assessee's own case [2018 (7) TMI 2122 - ITAT MUMBAI] CBDT Circular no. 789 dated 13.04.2000 (supra) is specifically in the context of incomes by way of dividend and capital gain on sale of shares. So, however, in our considered opinion, it would equally apply even in the situation before us where the application of the provisions of the India-Mauritius Tax Treaty is sought to be applied for considering the taxability of interest income as per Article 11(3)(c) of the India- Mauritius Tax Treaty - even in the context of the impugned interest income, Circular no. 789 dated 13.04.2000 (supra) of the CBDT is applicable while applying the provisions of Article 11(3)(c) of the India-Mauritius Tax Treaty. On this aspect itself we uphold the plea of the assessee that assessee is the 'beneficial owner' of the impugned interest income on the strength of the Tax Residency Certificate issued by the Mauritian authorities. - Decided in favour of assessee.
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2020 (3) TMI 1371 - PUNJAB AND HARYANA HIGH COURT
Summon of Managing Director - Managing Director has already appeared 10 times - HELD THAT:- As per the last summons which were served upon to the petitioner (which he has received) it has been clarified that the Managing Director need not appear in person but the representative who appears with the documents must be in a position to answer the queries, and in the absence thereof the requirement for the presence of the Managing Director may arise - In view of this clarification nothing survives.
Petition disposed off.
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2020 (3) TMI 1370 - MADHYA PRADESH HIGH COURT
Seeking grant of Bail - Rotation of cash-credit funds - diversion of funds for the purchase of immovable assets, interest payments and cash withdrawals - HELD THAT:- It is correct that the applicants were not arrested during investigation, but after the investigation, sufficient material has been collected against them. Now, number of cases are coming before this Court in which the bank officials sanction the loan to business tycoons without verification of the mortgaged property, etc. Without involvement of the bank officials, it is not possible for them to syphon the public money for other purposes. The banks are going into losses and some of the banks have been closed down. In the opinion of this Court, if the applicants are released on bail, a wrong message will go to the public. Since the investigation in other cases is still going on and other accused persons have not been arrested so far, therefore, at this stage, no case for grant of bail is made out.
Application dismissed.
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2020 (3) TMI 1369 - SC ORDER
Grant of anticipatory bail - summon of petitioner directly through arrest warrant whereas the trial Court should have called the petitioner through bailable warrant - HELD THAT:- Considering the entirety of the circumstances on record no case for interference is made out.
SLP dismissed.
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2020 (3) TMI 1368 - SUPREME COURT
Filing of reply to the complaint within time limitation - Section 13(2) (a) of the Consumer Protection Act - mandatory or directory provisions - power of District Forum to extend the time for filing the response beyond the period of 15 days, in addition to 30 days - commencing point of limitation of 30 days.
Whether the District Forum has power to extend the time for filing of response to the complaint beyond the period of 15 days, in addition to 30 days, as envisaged Under Section 13(2)(a) of the Consumer Protection Act? - HELD THAT:- It is clear that as mentioned in the Statement of Objects and Reasons of the Consumer Protection Act, the District Forum is to provide speedy disposal of consumer disputes. The same has been further reiterated by the legislature by insertion of Section 13(2)(c) and 13(3A) by Act 62 of 2002 - the maximum period of 45 days, as provided under the Consumer Protection Act, would not mean that the complainant has a right to always avail such maximum period of 45 days to file its response. Regulation 10 of the Consumer Protection Regulations, 2005 clearly provides that ordinarily such notice to the opposite party to file its response shall be issued for a period of 30 days, but the same can be even less than 30 days, depending upon the circumstances of each case.
By specifically enacting a provision Under Sub-section (3) of Section 13, with a specific clarification that violation of the principles of natural justice shall not be called in question where the procedure prescribed Under Sub-sections (1) and (2) of Section 13 of the Consumer Protection Act has been followed or complied with, the intention of the legislature is clear that mere denial of further extension of time for filing the response (by the opposite party) would not amount to denial or violation of the principles of natural justice. This provision of Section 13(3) reinforces the time limit specified in Section 13(2)(a) of the Act.
The case of JJ. MERCHANT (DR.) ORS. VERSUS SHRINATH CHATURVEDI [2002 (8) TMI 835 - SUPREME COURT] is one relating to the provisions of the Consumer Protection Act, and has been decided by a Bench of three Judges of this Court. In this case it has been held that the time limit prescribed for filing the response to the complaint under the Consumer Protection Act, as provided Under Section 13(2)(a), is to be strictly adhered to, i.e. the same is mandatory, and not directory - no further reference was required to be made, but still we have proceeded to answer the question referred to this Constitution Bench and are of the considered opinion that the view expressed by this Court in the case of Dr. J.J. Merchant is the correct view.
The District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged Under Section 13 of the Consumer Protection Act.
What would be the commencing point of limitation of 30 days Under Section 13 of the Consumer Protection Act, 1986? - HELD THAT:- A conjoint reading of Clauses (a) and (b) of Sub-section (2) of Section 13 would make the position absolutely clear that the commencing point of limitation of 30 days, under the aforesaid provisions, would be from the date of receipt of notice accompanied by a copy of the complaint, and not merely receipt of the notice, as the response has to be given, within the stipulated time, to the averments made in the complaint and unless a copy of the complaint is served on the opposite party, he would not be in a position to furnish its reply. Thus, mere service of notice, without service of the copy of the complaint, would not suffice and cannot be the commencing point of 30 days under the aforesaid Section of the Act - It is clarified that the objection of not having received a copy of the complaint along with the notice should be raised on the first date itself and not thereafter, otherwise if permitted to be raised at any point later would defeat the very purpose of the Act, which is to provide simple and speedy redressal of consumer disputes.
The commencing point of limitation of 30 days Under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.
Application disposed off.
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2020 (3) TMI 1367 - ITAT DELHI
Assessment u/s 153C - Addition u/s 68 - reopening of assessment u/s 147 already initiated - HELD THAT:- This issue has already been adjudicated and decided in favour of the assessee by holding that on the basis of incriminating material found, once reassessment proceedings was initiated on the basis of incriminating material found in the search of 3rd party then the provisions of section 153C of the I.T. Act were applicable which exclude the application of section 147 and 148 and notice u/s. 148 of the Act and proceeding u/s. 147 are illegal and void ab initio. Therefore, respectfully following the aforesaid order of the Tribunal [2017 (8) TMI 482 - ITAT DELHI], the reassessment in question is accordingly quashed. Since I have already quashed the reassessment, there is no need to adjudicate the other grounds. Ld. DR has not brought to my notice any contrary decision on exactly similar facts and circumstances of the case mentioned in para no. 8 of the Tribunal order dated 08.08.2017, as reproduced above. Therefore, there is no help can be given to the revenue on the issues mentioned in the written submissions by the Ld. DR. Appeal filed by the Assessee stand allowed.
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2020 (3) TMI 1366 - NATIONAL COMPANY LAW TRIBUNAL, GUWAHATI BENCH
Rectification of mistake - correction of a factual error that crept in the order - HELD THAT:- It was mistakenly mentioned at para 2 of page 2 of the said order as if the final order dated 26.08.2019 passed by this Tribunal was set aside by the Hon’ble Apex Court in an SLP and remitted the matter to NCLAT. However, it transpires from the record that the Hon’ble Supreme Court merely set aside the order passed by the NCLAT and remitted back the matter to NCLAT for fresh disposal on the plea of limitation. As a legal corollary, the order dated 26.08.2019 passed by this Tribunal remains intact and is under legal scrutiny before the NCLAT.
This Tribunal has taken judicial notice of the said factual error. The IRP is at liberty to act as per law as this Tribunal has already expressed its stand in regard to the aspect of status quo in the above order as it was a mere casual observation which was not culminated into any direction - Application disposed off.
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2020 (3) TMI 1365 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Validity of approved Resolution Plan - HELD THAT:- The ‘Resolution Plan’ has been approved by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench by impugned order dated 26th November, 2019. The free certified copy of the impugned order having been issued on 21st February, 2020, the Appeal is within time - However, no prima-facie case seems to have been made out by the Appellant to suggest violation of any of the grounds shown in Clause (3) of Section 61 of the Insolvency and Bankruptcy Code, 2016.
Merely because Enforcement Directorate had taken steps against the erstwhile Promoters of the ‘Corporate Debtor’, cannot be a ground for interference against the order of approval of ‘Resolution Plan’ - Post the case ‘for admission (fresh case)’ on 26th March, 2020.
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2020 (3) TMI 1364 - ITAT MUMBAI
Rectification of mistake - Non Maintainability of appeal on low tax effect - Tax effect below the monetary limit - HELD THAT:- As assessee fairly accepted that the tax effect involved in the present appeal is more than the prescribed monetary limit of ₹ 50 lakh therefore, the order of tribunal dated 1st January 2016 may be recalled and the appeal may be fixed for hearing on merit.The registry is directed to fix the appeal for hearing by regular bench. MA filed by the revenue is allowed.
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2020 (3) TMI 1363 - NATIONAL COMPANY LAW TRIBUNAL, INDORE BENCH
Approval of Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- This Adjudicating Authority is satisfied that the Resolution Plan as approved by the Committee of Creditors under SubSection (4) of Section 30 of Insolvency and Bankruptcy Code, 2016 meets the requirement as referred in Section 30 of Insolvency and Bankruptcy Code, 2016 Sub Section (1), (2), 2a, 2b, 2c, 2d, 2e, 2f, (3), (4), (5)8&(6) and has provisions for its effective implementation.
This Adjudicating Authority is hereby approved the Resolution Plan submitted by the Resolution Professional as approved by the CoC - Moratorium declared.
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2020 (3) TMI 1362 - ITAT KOLKATA
Deduction u/s 80IC - treating interest income from bank, from customers, from security deposit relates to business activities - HELD THAT:- Hon’ble Apex Court in CIT Vs. Govinda Choudhury [1992 (4) TMI 8 - SUPREME COURT] wherein the Hon’ble Apex Court held that the interest awarded to the assessee therein in an arbitration proceeding for delayed payment in a contract executed by the assessee was to be recorded as business income and could not be treated as ‘income from other sources’ and upheld the action of the Tribunal.
According to Ld. AR in the present case, the assessee had sold the C. R. coil manufactured from its eligible undertaking to customers on credit and when there is a delay in making payment by the customers to assessee, then the assessee charged interest upon the customers which have been shown by the assessee as interest income from the customers.
Therefore, according to Ld. AR since the interest income for delayed payment from the customers for the product manufactured by the assessee are to be treated as Business Income in the light of the Hon’ble Supreme Court decision in Govinda Choudhury (supra), the income thus derived by the assessee from the undertaking it is eligible for deduction u/s. 80IC(2) - therefore, the AO’s action of not allowing deduction is per se erroneous.
We are not inclined to decide these grounds since it is noted that the Ld. CIT(A) has not adjudicated the issues relating to two issues i.e. deduction in respect of income from delayed payment from customers and interest on security deposit (electricity), therefore, both these issues are set aside back to the file of the Ld. CIT(A) for fresh adjudication with a direction to decide the issues in accordance to law after hearing the assessee and without being influenced by any observation made by us supra.
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2020 (3) TMI 1361 - MADRAS HIGH COURT
Seeking stay of order - demand of service tax with interest and penalty - waiver of pre-deposit pending disposal of appeal - HELD THAT:- This Court directs the 1st respondent to dispose of the appeal filed by the petitioner, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of six weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2020 (3) TMI 1360 - SUPREME COURT
Seeking judicial review of dismissal from the Uttar Pradesh Higher Judicial Services by Respondent - illegal gratification - HELD THAT:- Any 'probability' of misconduct needs to be supported with oral or documentary material, even though the standard of proof would obviously not be at par with that in a criminal trial. While applying these yardsticks, the High Court is expected to consider the existence of differing standards and approaches amongst different judges. There are innumerable instances of judicial officers who are liberal in granting bail, awarding compensation under MACT or for acquired land, backwages to workmen or mandatory compensation in other cases of tortious liabilities. Such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer.
It is evident in the case in hand that the High Court itself was cognizant of this settled proposition of law. Learned senior Counsel for the Appellant also finds no fault with these principles, and instead only seeks for their application to the facts of the present case.
It is a matter of record that at the time when the High Court was seized of this matter, writ petitions against both of the Appellant's land acquisition judgments had been dismissed by its coordinate benches. The High Court has, nevertheless, rightly observed that dismissal of writ petitions against the Appellant's orders did not serve as vindication or confirmation of her orders. Indeed, as correctly noted by the High Court, the scope of judicial review Under Article 226 is limited - the dismissal of writ petition merely signifies the failure to demonstrate any of these high standards, in a particular case, and not the endorsement of the orders passed by a subordinate authority.
There is no explicit mention of any extraneous consideration being actually received or of unbecoming conduct on the part of the Appellant. Instead, the very basis of the finding of 'misbehaviour' is the end result itself, which as per the High Court was so shocking that it gave rise to a natural suspicion as to the integrity and honesty of the Appellant - petition allowed.
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2020 (3) TMI 1359 - BOMBAY HIGH COURT
Seeking grant of ad-interim relief in favour of plaintiffs - restraint to defendant no.2 from taking any steps for selling the shares in the market - HELD THAT:- It is to be noted that when Debenture Trust Deed was executed, market value of the shares were ₹ 350 per share and because of COVID-19, share market has collapsed and per share comes below ₹ 100.
Considering the present situation of market and COVID-19, it is opined that plaintiffs are required adinterim protection till next date - it is declared that the Mandatory Redemption Event Notices dated 11 March 2020 and 13 March 2020 (Exhibits D-I and D-2 hereto), and the Event of Default Notices dated 17 March 2020 (Exhibits E-1 and E-2 hereto) and Notices of Sale dated 18 March 2020 (Exhibits F-1 and F-2 hereto), are all illegal and/or invalid and/or improper - a permanent injunction restraining the Defendants from acting upon and/or giving effect to and/or implementing, directly or indirectly, in any manner whatsoever is granted.
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2020 (3) TMI 1358 - DELHI HIGH COURT
Seeking further time to the appellant herein for producing documents in support of the valuation of the property - change of status of the said property from "agricultural land" to "urban area / urbanised area" - HELD THAT:- The Arbitrator has proceeded on the basis of the documents that were filed before it. The Notification and the judgment that are sought to be relied upon by the appellant in the present appeal were admittedly not produced before the Arbitrator either along with the application or during the hearing of the application. The appellant cannot be permitted to rely on the said documents for the first time in the present appeal in order to argue that the impugned Order suffers from an error. The respondent is right in its contention that the documents now sought to be relied upon were in existence before the application was filed by the appellant and the appellant should have been cautious and diligent enough to file the said documents along with the application.
The appeal is dismissed.
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2020 (3) TMI 1357 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, AHMEDABAD BENCH, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors failed to show that Corporate Debtor is insolvent - misuse of I&B Code - existence of debt and dispute or not - HELD THAT:- The operational creditor failed to show that the amount so claimed is 'due' and payable to the operational creditor and has also failed to show that the corporate debtor is insolvent. When the objective of the I & B Code 2016 is to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of all the stakeholders including alteration in the priority of payment of government dues and to establish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto, liquidation brings the life of a corporate to an end. Hence, the I & B Code cannot be allowed for the purpose of arm twisting when the amount is not due and payable and/or has not yet been paid.
On perusal of the records it appears that the operational creditor intentionally filed this application with some malicious intent so as to pressurise the corporate debtor, where the legislation intention is purely based on the resolution of the company. That, the operational creditor failed to show that the corporate debtor is insolvent. That, all the invoices are time barred. That apart, no documents like purchase orders, delivery challans, lorry receipt etc. are produced in order to show that the goods were delivered.
It is a fit case where a penalty of ₹ 1.00 lac has to be imposed upon the operational creditor for misusing the I & B Code. Accordingly, a sum of ₹ 1.00 lac is imposed upon the petitioner which is payable to Army Welfare Fund within ten days from the date of this order.
The application, so filed by the applicant is not maintainable and is bad in law as well as in facts - Application dismissed.
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2020 (3) TMI 1356 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Admittedly, there is a debt which is due and default has occurred in payment thereof. The amount of undisputed debt is more than Rupees One Lac after considering the claim made by the financial creditor to exclude the amount of impugned debt from the claimed amount made against M/s. Avani Projects and Infrastructure Limited in separate CIRP proceedings. The debt also falls in the category of financial debt, hence, no dispute remains as regards the nature thereof.
The application is otherwise complete and defect-free - Application admitted - moratorium declared.
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2020 (3) TMI 1355 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
Sanction of scheme of amalgamation - seeking direction for convening of an Annual General Meeting and for other consequential reliefs - Section 96 of the Companies Act, 2013 - HELD THAT:- In the event of default in holding the Annual General Meeting of a company under Section 96, this Tribunal is empowered under Section 97 of the Companies Act, 2013, for issuance of a direction for calling of an Annual General Meeting - Respondent Nos.2 and 3, who are the Directors of respondent No.1- company have not denied the mandatory obligation of respondent No.1- company to hold the Annual General Meeting within the prescribed period.
In view of the mandatory requirement under the provisions of the Companies Act, 2013 and in view of the paramount interest of the company, as also the submissions made on behalf of both sides, it is considered fit case of exercising the powers conferred under Section 97 of the Companies Act, 2013 - Respondent Nos.1 to 3 to convene, hold and conduct the Annual General Meeting within 30 days from today on any working day during business hours i.e. 9 AM to 6 PM, at the registered office of the respondent No.1-company at Gurugram, after duly certifying strict compliances of the procedures as contemplated under the Articles of Association of the company and the Companies Act, 2013.
Application allowed.
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2020 (3) TMI 1354 - ANDHRA PRADESH HIGH COURT
Seeking release of the goods seized by the respondents - HELD THAT:- It is directed that the petitioner to furnish bank guarantee equivalent to 30% of the differential duty and for the remaining amount, solvent surety to the satisfaction of the officer concerned. On furnishing such bank guarantee and solvent surety, the goods shall be released. It is made clear that bank guarantee so furnished by the petitioner shall be renewed from time to time until finalization of the proceedings.
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