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Showing 101 to 120 of 1569 Records
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2024 (5) TMI 1469
Validity of Assessment orders passed against a non-existent company - company master data and company information showing ‘strike off’ against the company status on the record of MCA - HELD THAT:- From the record, it appears that the assessee-company has been used as a conduit to provide large scale accommodation entries and availed the voluntary strike off from the record of the Master Data of MCA and has thus ceased to exist. The proceedings can be initiated against the assessee-company only when recourse to the revival of the company is taken by the Revenue in accordance with law, substantially affected by such action of the assessee.
Paradoxically, the appeal before the Tribunal arises from the first appellate order passed u/s 250 of the Act which, in turn, is based upon incompetent appeal memo signed by a ‘former’ Director. It is not shown as to how such former director has derived authority in law to pursue appeal before CIT(A) on behalf of a ‘struck off’ company. The entire first appellate proceedings is thus vitiated and rendered non-est. The captioned appeals before Tribunal arising from the first appellate order passed thus appear to be without sanctity of law and outside the realm of adjudication.
In view of such glaring deficiencies, no useful purpose would be served by continuing with the present proceedings in the present form. No useful purpose will be served in keeping the captioned appeals pending either. Therefore, the right course, to our mind, will be to consign the present appeals and the Cross objections to the records. Both the sides shall be at liberty to revive the appeals at opportune time as and when the circumstances may warrant.
We dismiss the captioned appeals of the Revenue arising from defective and incompetent appeal placed before the CIT(A) in limine.
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2024 (5) TMI 1468
Validity of assessment u/s 153C - Statutory imperatives of incriminating material - HELD THAT:- Undisputedly, and as would be evident from a reading of the Satisfaction Note pertaining to the non-searched entity, namely the petitioner, the material which is alluded to pertains to Assessment Year [“AY”] 2019-20 only. Action under Section 153C however, sought to encompass AYs 2014-15 to 2020-21. Insofar as AYs other than AY 2019-20 are concerned the impugned action would clearly not sustain bearing in mind the judgment rendered by the Court in Saksham Commodities Limited [2024 (4) TMI 461 - DELHI HIGH COURT] wherein held jurisdictional AO would have to firstly be satisfied that the material received is likely to have a bearing on or impact the total income of years or years which may form part of the block of six or ten AYs' and thereafter proceed to place the assessee on notice under Section 153C. The power to undertake such an assessment would stand confined to those years to which the material may relate or is likely to influence. Absent any material that may either cast a doubt on the estimation of total income for a particular year or years, the AO would not be justified in invoking its powers conferred by Section 153C. It would only be consequent to such satisfaction being reached that a notice would be liable to be issued and thus resulting in the abatement of pending proceedings and reopening of concluded assessments.
Whether mere recovery of a ledger account cannot possibly be construed as being incriminating? - petitioner, who submits that even for AY 2019-20 the Assessing Officer [“AO”] does not refer to any incriminating material - We find ourselves unable to pursue this line of inquiry which is suggested bearing in mind the obvious disputed issues of fact which arise. We also bear in consideration the following conclusions and observations as they appear in the satisfaction note.
The writ petition partly succeeds. The impugned action under Section 153C of the Act, pertaining to AYs 2014-15, 2015-16, 2016-17, 2017-18, 2018-19 and 2020-21 are hereby quashed and set aside.
However, and insofar as AY 2019-20 is concerned, the same is left untouched. All rights and contentions of respective parties are kept open to be addressed in the ongoing assessment proceedings for AY 2019-20.
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2024 (5) TMI 1467
Maintainability of the fresh application filed under Section 94 of IBC, 2016 without challenging the earlier order dated 01.04.2024 vide which his earlier Application under section 94 of the IBC, 2016 was dismissed for non-compliance -HELD THAT:- The present petition filed by the Applicant/ Personal Guarantor is nothing but abuse of the process of law and has been filed only with an intention to misuse the Interim moratorium granted under section 96 of IBC, 2016, while mis-utilizing the interim moratorium for more than 3 years, which is only aimed at defrauding its creditors and delaying the recovery proceeding under SARFAESI Act, 2002 and other provisions of law.
Once the Applicant/ Personal Guarantor has chosen not to pursue the earlier Application filed under section 94, which was dismissed for noncompliance, the Applicant without filing an appeal against the order dismissing the said petition, could not have filed the present fresh petition under section 94.
The present Application is maintainable in the light of the order dated 28.02.2024 of this Tribunal, wherein liberty was granted to the Applicant/ Personal Guarantor to file a fresh application under section 94(1) IBC, 2016 as per law - not only the Applicant failed to comply with the directions of this Adjudicating Authority in complying with the provisions of Section 94(4) and 94(5) to make the Application complete but also did not challenge the order dated 01.02.2024 of this Adjudicating Authority. Hence, the order dated 01.02.2024 attained finality.
This Adjudicating Authority is sufficiently empowered to examine maintainability of an Application - present application dismissed.
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2024 (5) TMI 1466
Maintainability of the fresh application under Section 94 of the Insolvency and Bankruptcy Code (IBC), 2016 without challenging the earlier order dated 01.04.2024 vide which his earlier Application under section 94 of the IBC, 2016 was dismissed for non-compliance - HELD THAT:- The present petition filed by the Applicant/ Personal Guarantor is nothing but abuse of the process of law and has been filed only with an intention to misuse the Interim moratorium granted under section 96 of IBC, 2016, while mis-utilizing the interim moratorium for more than 3 years, which is only aimed at defrauding its creditors and delaying the recovery proceeding under SARFAESI Act, 2002 and other provisions of law.
Once the Applicant/ Personal Guarantor has chosen not to pursue an earlier Application filed under section 94, which was dismissed for noncompliance, the Applicant without filing an appeal against the order dismissing the said petition, could not have filed the present fresh petition under section 94.
The present petition is maintainable in light of the order dated 28.02.2024 of this Tribunal, wherein liberty was granted to the Applicant/ Personal Guarantor to file a fresh application under section 94(1) IBC, 2016 as per law - this Adjudicating Authority is sufficiently empowered to examine maintainability of an Application.
Present application dismissed.
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2024 (5) TMI 1465
Maintainability of Rectification u/s 254 - seeks to recall/rectify tribunal’s order dismissing it’s main appeal as involving lower than the prescribed tax effect of Rs. 20 lakhs in light of the CBDT’s Circular no .3/2018 dated 11.07.2018 u/sec. 254(2) - HELD THAT:- It emerges at the outset with the able assistance coming from both the parties that the assessee had claimed the impugned sec. 80P deduction relief involving interest income as per the Revenue’s pleadings of the instant application. CIT(A) admittedly accepted the said claim which led to the Revenue filing the main appeal herein [2018 (8) TMI 2161 - ITAT PUNE]
Faced with this situation, assessee submitted very fairly that the tax effect herein involving quantum addition very well exceeds Rs. 20 lakhs. That being the case, we recall our impugned order dated 01.08.2018 as suffering from an apparent error on the face of it in very terms. Registry is directed to list the Revenue’s main appeal in due course as per rules.
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2024 (5) TMI 1464
Money laundering - proceeds of crime - First bail application filed under section 438 of Cr.P.C - rejection of Remdesivir Injections at a higher price - offence under section 420, 488, 304, 308, 467, 468, 471, of IPC and 3/7 of Essential Commodities Act and section 3 of Epidemic Diseases Act - it was held by High Court that 'Considering the money trail produced by the prosecution, which clearly proves involvement of the applicant in the present case, in which proceeds of crime is Rs.2,89,00,000/-, this court is of the view that in view of the rigor of section 45 of the Act, 2002, the applicant is not entitled for anticipatory bail.'
HELD THAT:- Issue notice, returnable on 29th July, 2024.
In the meanwhile, the petitioner shall not be arrested in connection with Special Case pending before the Court of learned Special Judge, PML Act and 14th Additional Sessions Judge, Indore, Madhya Pradesh, subject to condition that he shall regularly appear before the Special Court.
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2024 (5) TMI 1463
Rejection of bail - offence punishable under Section 8 read with Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- On examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.
It is directed to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court - petition allowed.
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2024 (5) TMI 1462
Condonation filling appeal against NFAC - delay of 727 days due to COVID outbreak/lockdown - HELD THAT:- Institution dated 22.01.2022 falls within the Covid-2019 pandemic outbreak period; has already been held to be excluded for all intents and purposes as per hon’ble apex court’s directions in Cognizance for Extension of Limitation, In re [2021 (11) TMI 387 - SC ORDER] read with judgment in Cognizance for Extension of Limitation, In re [2021 (3) TMI 497 - SC ORDER] and [2020 (5) TMI 418 - SC ORDER], under the limitation law.
This being the clinching factual position emanating from the case file, it is deemed appropriate in the larger interest of justice to condone the impugned 727 days in filing of the lower appeal and restore the matter back to the file of learned NFAC for it’s afresh appropriate adjudication preferably within three effective opportunities of hearing subject to the rider that it is the assessee’s sole risk and responsibility to prove the case in consequential proceedings. Ordered accordingly.
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2024 (5) TMI 1461
Withdrawal of valid authorisation of the representative who has filed this petition in the name of the Company - objection is withdrawn as the respondent-Union of India does not wish to raise that objection regarding authorisation - HELD THAT:- An appropriate case is made out that present petition has been filed with valid authorisation.
No case for passing of any interim order is made out - List the matter for hearing after Summer Vacations, 2024.
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2024 (5) TMI 1460
Reopening of assessment - funds which were essentially meant to carry out activities in relation to a trust "Legal Initiative for Forest and Environment" were diverted to the account of the petitioner and that no professional services were either rendered or details thereof furnished - HELD THAT:- We find no justification to entertain the challenge at this stage bearing in mind the conclusions which stand incorporated in the order passed under Section 148A(d) and which have been extracted hereinabove.
Quite apart from the issue of Section 68 which may arise, we are concerned with the allegation of diversion of income. We also bear in mind that at the stage of initiation of action for reassessment, the writ court would only consider whether the AO had duly applied its mind with respect to aspects pertaining to escapement of income.
As is evident on a consideration of the conclusions tentatively arrived at by that authority and which constitutes its prima facie opinion, it cannot be said that the authority has failed to bear in consideration the principles that govern the commencement of action under Section 148 or that the opinion formed is wholly untenable or perverse.
Writ petitions shall consequently stand dismissed.
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2024 (5) TMI 1459
Deduction u/s 80P(2)(d) - addition of interest income earned on FDs with cooperative banks and nationalised banks holding that the said interest does not qualify for deduction u/s 80P(2)(d) - HELD THAT:- The Co-ordinate Bench of the Tribunal in the case of The Ugar Sugar Works Kamgar & Dr. Shirgaokar Shaikshanik Trust Nokar Co-op Credit Society . [2021 (11) TMI 1117 - ITAT PANAJI] held in favour of the appellant society held that even the interest income earned by cooperative society on deposits made out of surplus funds with cooperative banks as well as schedule bank qualifies for deduction both under the provisions of section 80P(2)(a)(i) and section 80P(2)(d) of the Act, therefore, the reasoning given by the lower authorities on this issue cannot be accepted.
Thus, we direct the AO to allow deduction u/s 80P(2)(a)(i) and 80P(2)(d) in respect of interest income earned from cooperative bank/scheduled bank. The grounds of appeal filed by the assessee stands allowed.
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2024 (5) TMI 1458
Respondents-Revenue undertakes to file vakalatnama within two weeks from today. Reply to be filed and copy served by 11th June 2024. Rejoinder, if any, to be filed and copy served by 21st June 2024.
Stand over to 1st July 2024. Until 31st July 2024, there shall be ad-interim in terms of prayer clause (e), which reads as under:
“(e) Pending the hearing and final disposal of the writ petition, for an order restraining the Respondents, its officers, sub-ordinates, agents from relying upon and/or taking any steps in furtherance or in connection with Impugned Assessment Order, Impugned Demand Notice and Impugned Penalty Notice for A. Y. 2019-20;”
The impugned assessment order and demand notice are dated 18th April 2024 and the penalty notice is dated 19th April 2024.
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2024 (5) TMI 1457
Denial of exemption u/s. 80G(5) - territorial jurisdiction of ITAT bench(es) at Pune - HELD THAT:- This tribunal’s office noting dated 12.03.2024 had sought to ascertain the issue of territorial jurisdiction of ITAT bench(es) at Pune. CIT-DR at this stage took us to the said noting wherein it is evident that the learned coordinate bench at Mumbai has already dealt with the assessee’s appeal dealing with the issue of sec. 12AB registration and remanded the same back to the CIT(E).
Faced with the situation, learned counsel sought to withdraw the assessee’s instant appeal in light of the tribunal’s Standing Order no. 1/1987 dated 17.07.1987 notifying the territorial jurisdiction of various benches in tribunal; as the assessee is assessed at Thane, not within the jurisdiction of ITAT, Pune bench(es), with liberty to be instituted afresh before the appropriate bench at Mumbai. The Revenue is fair enough in not objecting the assessee’s foregoing plea of withdrawal of appeal.
This assessee’s appeal is dismissed as withdrawn.
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2024 (5) TMI 1456
Denial of Foreign Tax Credit (FTC) - assessee did not file form No. 67 within the stipulated time of filing the return of income u/s 139(1) - HELD THAT:- We find the Hyderabad Bench of Tribunal in the case of Baburao Atluri [2022 (12) TMI 525 - ITAT HYDERABAD] has allowed the FTC despite delay in filing the FTC certificate in form No. 67 by observing that assessee in the instant case has filed FTC certificate in Form No.67 with delay of only ‘14’ days, therefore following the decision in the case of M/s. 42 Hertz Software India Pvt.Ltd.[2022 (3) TMI 834 - ITAT BANGALORE] we direct the AO to allow the FTC after due verification
In this case since the certificate was not examined by the Assessing Officer, therefore, considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it proper to restore the issue to the file of Assessing Officer with the direction to verify the form No. 67 and allow consequential FTC. We hold and direct accordingly. The grounds raised by the Revenue are accordingly allowed for statistical purposes.
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2024 (5) TMI 1455
Acquisition of property of respondent no. 1 in exercise of powers under Section 352 of the Kolkata Municipal Corporation Act, 1980 - power of compulsory acquisition of immovable property under Section 352 - Constitutional right to property under Article 300A - HELD THAT:- Section 352 does not provide for any procedure whatsoever, the contention that it contemplates the power of acquisition is rejected. Section 352 is only intended to enable the Municipal Commissioner to decide whether a land is to be acquired for public purpose. The power of acquisition is in fact vested with the State under Section 537 and it will exercise it, in its own discretion, whenever the Municipal Commissioner makes an application to that effect - the decision of the High Court agreed upon that Section 363 is not a provision for compensation for compulsory acquisition. In this context, we have also held that a valid power of acquisition coupled with the provision for fair compensation by itself would not complete and exhaust the power and process of acquisition. Prescription of the necessary procedures, before depriving a person of his property is an integral part of the ‘authority of law’, under Article 300A and, Section 352 of the Act contemplates no procedure whatsoever.
The High Court was fully justified in allowing the writ petition and rejecting the case of the appellant-Corporation acquiring land under Section 352 of the Act. The impugned judgment does not brook interference on any count.
Appeal dismissed.
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2024 (5) TMI 1454
Long term capital loss generated from sale of shares - large scale manipulations on the stock market platform done by some unscrupulous entry operators to provide some pre-arranged long term capital gain and short term capital loss/trading loss by price rigging in some shares in a syndicate manner - HELD THAT:- Undisputed fact as gathered from the records before us are that during the year the assessee sold a flat measuring 1682 sft. at Chandra Mahal, 15, Burdwan Road, Kolkata for a consideration of Rs.1,85,00,000/- and earned capital gain on such transfer which was purchased for Rs.15,30,058/- on 11.04.1992 resulting in the LTCG of Rs.1,50,45,540/- after making allowance of index cost of acquisition of Rs.34,54,460/-.
During the year, the assessee has also sold equity shares of two companies viz. M/s. Tuni Textiles Ltd. and M/s. Blue Circle Services Limited on which the assessee had incurred loss of Rs.1,87,25,176/-. The above STCG was set off against LTCG realized from the sale of flat as stated supra. We have also perused the decision referred before us in the case of Nalanda Builders Pvt. Ltd. [2024 (2) TMI 330 - ITAT KOLKATA] wherein the issue of sale of two stocks namely, M/s. Tuni Textiles Ltd. and M/s. Blue Circle Services Limited was involved and the losses suffered on the sale of above shares was adjusted against the LTCG accrued from sale of fixed asset i.e flat.
We have perused the above decision carefully and observed that the facts are quite similar and also that the decision in the case of Gateway Financial Services Ltd. [2023 (7) TMI 743 - ITAT KOLKATA] has been followed by the Coordinate Bench. We also note that the decision in the case of Nalanda Builders Pvt. Ltd. [2024 (2) TMI 330 - ITAT KOLKATA] as relied upon by the Ld. AR has considered the decision of Gateway Financial Services Ltd [2023 (7) TMI 743 - ITAT KOLKATA] which has distinguished the decision of the Hon’ble High Court in the case of Swati Bajaj [2022 (6) TMI 670 - CALCUTTA HIGH COURT].
We set aside the order of CIT(A) and direct the AO to allow the loss incurred on sale of shares and allow the set off of the same against the LTCG earned by the assessee. Resultantly, the appeal of the assessee is allowed.
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2024 (5) TMI 1453
Validity of notice being issued by the JAO - applicability of provisions of Section 151A - HELD THAT:- Notice u/s 148 was issued by the JAO and not FAO and hence, is in violation of Section 151A - As held by this Court in Hexaware Technologies Limited (2024 (5) TMI 302 - BOMBAY HIGH COURT) this notice will be invalid. Mr. Singh agrees.
Therefore, the notice issued u/s 148 of the Act is hereby quashed and set aside. In case any re-assessment order is passed, the same also will stand quashed. So also, consequential demand notices or penalty notices will also stand quashed and set aside. Petition disposed accordingly.
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2024 (5) TMI 1452
Delayed Employees' contribution to PF and ESI - amount not deposited within the due date prescribed under the PF and ESI Acts in terms of Explanation-1 to section 36(1)(va) - HELD THAT:- The issue involved in the present appeal is with respect to addition made under Section 36(1)(va) of the Act on account of delay in deposit of employees’ contribution to PF and ESI, for the impugned year under consideration which has now been settled / clarified in the case of Checkmate Services (P.) Ltd. [2022 (10) TMI 617 - SUPREME COURT] Accordingly, we see no reason why the issue be kept pending and litigation be prolonged on this issue any further. Decided against assessee.
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2024 (5) TMI 1451
Scope of review jurisdiction - error apparent on the face of the record - suppression of material fact in relating to the involvement of the respondents in the criminal cases by itself would incur the disqualification to be appointed to the post of constable and RSI - HELD THAT:- In PARSION DEVI AND OTHERS VERSUS SUMITRI DEVI AND OTHERS [1997 (10) TMI 369 - SUPREME COURT] the Hon’ble Apex Court observed that an error that is not self-evident and the one that has to be detected by the process of reasoning cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review.
In LILY THOMAS, ETC. VERSUS UNION OF INDIA & ORS. [2000 (5) TMI 1045 - SUPREME COURT] the Hon’ble Apex Court held that the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
In ARIBAM TULESHWAR SHARMA VERSUS ARIBAM PISHAK SHARMA [1979 (1) TMI 228 - SUPREME COURT], the Hon’ble Apex Court observed that there is nothing in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But there are definitive limits to the exercise of the power of review. It may be exercised where some mistake or error apparent on the face of the record is found. It may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits.
In KAMLESH VERMA VERSUS MAYAWATI & ORS. [2013 (8) TMI 912 - SUPREME COURT] after discussing various decisions on the scope of review jurisdiction, the Hon’ble Apex Court summarized the principles for exercise of the review jurisdiction, also laying down when the review would be maintainable and when not.
With respect to the scope of review it has repeatedly been held that in the exercise of review jurisdiction, neither the Court can sit in appeal nor it is open for review petitioner to reagitate and reargue the questions which had already been addressed and decided by the writ Court. It is not permissible to allow the review petition to be re-heard and decide as an appeal in disguise. The present review petitions are an effort in the nature of second commencement of re-hearing of writ petitions which is impermissible.
The judgments under review do not suffer from any apparent error of law - All the Review Petitions are dismissed.
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2024 (5) TMI 1450
Dismissal of an application of recall of an order - manipulation of books of account and siphoning of funds - fabrication of valuation report - HELD THAT:- The Ld. NCLT had rightly observed there was nothing on record to suggest Respondent No.7 was a necessary and proper party or was required to be summoned as a Respondent only for confirmation of his valuation report, when such valuation report in fact was never denied by the Respondents except it was required to be verified by the Statutory Auditors.
The orders dated 11.01.2024 and dt. 22.02.2024 does not warrant any interference by this Tribunal. There is no merit in the appeal - appeal dismissed.
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9911796707
