|
Advanced Search Options
Case Laws
Showing 121 to 140 of 1903 Records
-
2015 (12) TMI 1789
Scheme of amalgamation - Second Motion Petition moved under Sections 391 to 394 of the Companies Act, 1956 - HELD THAT:- Scheme allowed. Publication be carried out in the newspaper Business Standard (English) and (Hindi), returnable on 22.04.2016.
-
2015 (12) TMI 1788
Disallowance u/s. 14A read with Rule 8D(2)(iii) - CIT(A) upholding the disallowance of administrative expenses made by AO on investment in shares - whether the entire administrative expenses was incurred by the assessee for the purpose of investment in shares? - HELD THAT:- We compared the heads of accounts of the expenses of the administrative and other expenses and in comparison we find majority of expenses claimed by the assessee are more or less on same accounts, i.e., auditors remuneration, depreciation, legal and professional fees, business support fees etc.
On perusing the schedule “L” related to administrative expenses we find none of the accounts are prima facie directly identifiable as one meant for earning the exempt of income. Some of the expenses so claimed in the schedule related to other business expenses. Similar is the case with the other appeals under consideration as well.AO mechanically applied the provisions of Rule 8D(2)(iii) without examining the books of accounts of assessee and therefore, the addition is unsustainable in law. See CAPE TRADING P. LTD. VERSUS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE – 29, MUMBAI [2015 (8) TMI 211 - ITAT MUMBAI] - Decided in favour of assessee
-
2015 (12) TMI 1787
Interest paid on borrowings disallowance - HELD THAT:- This question stands concluded against the revenue as decided in earlier AY 1999-00
Treatment to sales tax incentive subsidy - revenue or capital subsidy - HELD THAT:- As the entire issue for the A.Y.2000-01 is still at large to be decided by the Assessing Officer consequent to the impugned order of the Tribunal the question as proposed does not give rise to any substantial question of law. Hence not entertained.
Transfer to Debenture Redemption Reserve to be excluded in computing book profits u/s 115JA - MAT - HELD THAT:- Issue covered against the revenue by the decision of this Court in CIT vs Raymond Ltd [2012 (4) TMI 127 - BOMBAY HIGH COURT]. In the above view, the question as proposed does not give rise to any substantial question of law
Allowability of sum paid by the Assessee Company to Himachal Pradesh State Electricity Board for setting up of Kangoo Power Sub-station - HELD THAT:- The revenue having accepted the decision of the Tribunal for assessment year 1999-00 on this issue by not having challenged the same, cannot now challenge the impugned order in the absence of any specific ground being made out justifying challenging the impugned order on this issue, when it is accepted for A.Y.1999-00. Accordingly, question G does not give rise to any substantial question of law.
Claim of expenditure in respect of temporary structures - revenue or capital expenditure - HELD THAT:- We find that both the CIT (A) as well as the Tribunal have rendered a finding of fact that the structure was constructed at the client's site and was temporary in nature. Further they have also rendered a finding that the temporary structure is necessary for the purpose of carrying out its business more efficiently and would be considered being an integral part of its profit earning process. Thus there is no advantage of enduring nature.
Expenditure incurred on construction of stadium - HELD THAT:- We find that the test of allowing such expenditure as laid down by the Supreme Court in SRI VENKATA SATYANARAYANA RICE MILL CONTRACTORS VS. CIT [1996 (10) TMI 2 - SUPREME COURT] that where the payment is out of commercial expediency and above board such expenses are to be considered to have been incurred in the course of business. Therefore allowable as an expenditure under Section 37 (1) of the Act as allowing an expenditure of commercial expediency and not whether it is compulsory or voluntary. On application of the above test, the view taken by the impugned order of the Tribunal is a possible view.
Appeal admitted on Questions nos. A, B and E.
-
2015 (12) TMI 1786
Maintainability of appeal - monetary limit - HELD THAT:- CBDT has issued Circular No.21 of 2015 dated 10.12.2015, vide which it has revised the monetary limit to ₹ 10,00,000/- for not filing the appeal before the Tribunal.
From Clause 10 of the above circular it is clear that these instructions are applicable to the pending appeals also and there is clear cut instruction to the department to withdraw or not to press the appeals filed before the ITAT wherein tax effect is less than ₹ 10,00,000/-. These instructions are operative retrospectively to the pending appeals.
CBDT Circular No.21 of 2015 dated 10.12.2015 and also the provisions of Section 268A of Income Tax Act, 1961, we are of the view that the Revenue should not have filed the instant appeal before the Tribunal - We dismiss the appeal filed by the department.
-
2015 (12) TMI 1785
Maintainability of appeal - monetary limit - tax effect involved in the appeals of the Revenue is less than ₹ 10 lac - Held that:- There is no necessity for adjourning the appeals as the tax effect involved in the appeals of the Revenue is less than ₹ 10 lac the oral request was rejected. However, by way of abundant caution liberty is granted to the Revenue that in case on receipt of the order the Assessing Officer finds that the tax effect is above ₹ 10 lac or in any other manner the Circular is not applicable, he would be at liberty to file a Miscellaneous Application pointing out these facts. We also taking note of the concerns expressed by the ld.CIT, DR and make it clear that as a result of the dismissal of the Revenue’s appeals on the ground of tax effect the said order would not act as a precedent where the tax effect is more in any subsequent or prior year where the Revenue would want to agitate the issues on similar grounds before the ITAT on merit. - Decided against revenue
-
2015 (12) TMI 1784
Disallowance on account of film preview expenses - Held that:- AO has not pointed out that the expenditure claimed by the assessee is excessive or abnormal in comparison to the normal expenditure being incurred on such exhibition of movie in the pre-release preview. The assessee produced complete details of the expenses though most or the expenses are incurred in cash, We find that keeping in view the nature of the expenses the payment in cash is inevitable for certain expenses which are on spot and for the purpose of snakes, refreshment, etc. The assessee has produced the vouchers which includes sell-made vouchers as well as the third party vouchers wherein the name of the movie is given. When the name of the movie and name of the theater is given, then the vouchers issued by the third party cannot be doubted. It is worth to be noted that the disallowance is restricted by the DRP is not based on the ground that it is excessive but for want of proper vouchers therefore, we find that the ad-hoc disallowance is not justified when the expenditure is not found to be excessive and the purpose and the occasion on which the expenditure was incurred is not disputed.
Disallowing legal expenses - disallowance made on the ground that the assessee was not able to substantiate these expenses with the help of complete evidences - Held that:- It is noted that this issue has been sent back by the Tribunal in A.Y. 2009-10 to the file of the AO with some directions. We find it appropriate to send this issue back to the file of the AO in pursuance to the order. We also direct the AO to follow the directions as given by the Tribunal in A.Y. 2009-10 as far as may be applicable on the facts of the case of this year. With these directions this issue is sent back to the file of the AO. Thus, ground no. 2 is allowed for statistical purposes.
Disallowance of expenses incurred by the assessee on foreign travelling - Held that:- It is noted by us that these expenses pertained to the foreign visit of Mr. Sanjay Gupta, director, of the company, on the ground that no evidence was submitted to establish business purpose for incurring these expenses. Before us also no such evidence has been produced and therefore, we have no option but to confirm the disallowance. Accordingly, disallowance is confirmed and Ground No. 3 is dismissed.
Disallowing incurred on Travelling, Advertising and Printing & Stationery expenses @ 5% on ad hoc basis by treating the same as personal expenditure - Held that:- We find that the assessee has submitted bills/vouchers as were maintained by it in regular course of business. If the AO was not satisfied with any particular items of expenses, he could have pointed it out to the assessee for inviting its response. In case AO was not satisfied with response of the assessee, then the same could have been considered for the disallowance. There should not be a practice of making an ad-hoc disallowance on the ground of personal expenditure, because there is no concept of personal expenditure in the case of a company. The company is a separate legal juristic person. In case any expenses are incurred on behalf of director or any other senior employees, then the same is liable to be taxed in the hands of the said person as part of perquisite/remuneration, as per law. In our considered view, disallowance had been made beyond the provision of law and therefore same is directed to be deleted. We find our support from the judgment in the case of Sayaji Iron and Engg. Co. (2001 (7) TMI 70 - GUJARAT HIGH COURT). Thus ground no. 4 is allowed.
Disallowing u/s 36(1)(iii) on proportionate interest expenditure - Held that:- We find that there being sufficient interest free own funds in possession of the assessee, no presumption should be drawn that the assessee has given the disallowance out of interest bearing funds only. Further, the amount has been invested with subsidiary of the assessee company and thus taking support from the judgment of Hon'ble Supreme Court in the case of S.A. Builders Ltd. (2006 (12) TMI 82 - SUPREME COURT) it can be said that no disallowance would be made if the amount has been advanced for the strategic business needs. The assessee has submitted copy of resolution signifying its business necessity. Taking in to account all the aforesaid facts and circumstances of the case, we find that the said disallowance is not sustainable as per law.
Disallowance u/s 14A, read with rule 8D - Held that:- We find that all these issues go to the root of the matter. These have not been properly dealt with by the DRP. The mind of the AO could also not be applied on all these issues at all. The assessee also could not get proper opportunity to explain this issue with proper evidences. There has been lot of development in the legal position with respect to all the contentions raised by the Ld. Counsel. These judgments which have been relied upon by the Ld. Counsel were not available before the AO/DRP. Therefore, for thrashing out the facts properly, and to meet ends of justice and in all fairness, we deem it appropriate to send this issue back to the file of the AO who shall decide this issue afresh. Needless to add, the AO shall offer proper opportunity to the assessee to file requisite details and documents, as per law. The AO shall take into account complete factual material and shall also consider the judgments as may be available at the time of deciding this issue afresh. With these directions, this issue is sent back to the file of the AO. This ground is allowed for statistical purposes.
Notional interest on the amount routed by the assessee company through its Dubai subsidiary for the purpose of its business - Held that:- This issue is entirely dependent upon the A.Y.2009-10 which has been disposed by the Tribunal. We have gone through the order of the Tribunal and find that the disallowance was made in the assessment year2009-10 on loan given to the same party. In this year, no fresh loan has been given rather amount of loan has been reduced on account of part payments received back from the said party. It is noted from the order of the DRP that opening balance due from the said party at the beginning of the year was ₹ 106.52 crores which was reduced to ₹ 73.96 crores at the end of the year. It is further noted that Hon'ble Tribunal in A.Y. 2009-10, after making detailed discussion held that the addition was illegal and therefore the same was deleted
-
2015 (12) TMI 1783
Nature of receipt - incentive/subsidy received from the Central & State government - to be treated as revenue receipt or capital receipt - Held that:- The schemes launched was for setting up of new industries in the district of Kutch for the purpose of new employment opportunities and to make industrial and economic environment live. Thus, the scheme of incentives provided by the respective Governments was setting-up of a new unit and not for running of the business more profitably.
As said in PONNI SUGARS & CHEMICALS LTD. [2008 (9) TMI 14 - SUPREME COURT] the form and the source of subsidy are immaterial and what is material is whether the subsidy is for setting up for a industrial unit or running it for profitability. Similarly, the Central Excise exemption was given in the public interest for setting up of a new industrial unit in the Kutch District. Accordingly on the facts of the present case, we conclude that the incentive given by the State Government and the Central Government is nothing but capital receipts, because applying the “purpose test” the incentive / subsidy was given only for setting up of new industrial unit and economic development and generation of new employment opportunities in the Kutch District and not for running the industry for augmenting the profit on day-to-day business. Thus, We hold that the amount of incentive received by the assessee cannot be taxed as revenue receipt as it is purely on capital account.
Other plea raised by the AO in the order passed u/s 143(3) r.w.s. 153A, we agree with the contention of the Ld. Counsel that, none of the plant and machinery installed by the assessee for setting up of a new industrial unit has been funded by the Government subsidy. The subsidy here in this case is not specifically intended to subsidies the cost of capital or plant & machinery. The incentive in the form of subsidy by the government here in this case cannot be considered as payment directly or indirectly to meet any portion of the actual cost and hence it does not fall within the purview of Explanation 10 to section 43(1). Thus, this alternative plea as raised by Ld. AO is rejected - Decided n favour of assessee
Claim of prior period expenses - Held that:- Whole issue relating to prior period expenses is set aside to the file of the AO to be decided afresh after giving due opportunity to represent its case.
Disallowance u/s 14A - Held that:- We agree in principle with the Ld. Counsel that in case, assessee has own surplus fund which are in far excess of investment made, then no disallowance of interest should be made and this view stands covered by the decision of Hon’ble Bombay High Court in the case of HDFC bank Ltd.[2014 (8) TMI 119 - BOMBAY HIGH COURT]. Accordingly, the AO is directed to verify this contention and grant relief so far as interest disallowance is concerned. Further, the AO is also directed to apply the principles laid down by Delhi High Court in the case Chem Invest [2015 (9) TMI 238 - DELHI HIGH COURT] inasmuch as if there is no exempt income then, no disallowance should be made. - Appeal allowed for statistical purposes.
-
2015 (12) TMI 1782
Refusal to register the assignment of life insurance policies in favor of the First Respondent - Declaration sought that the insurance policies issued by the Appellant are freely tradable and assignable in accordance with the provisions of the Insurance Act, 1938 - whether insurance policies are freely tradable and assignable? - Section 38 of the Insurance Act.
Held that:- On transfer or assignment of a policy and on the requisite procedure being complied with, the assignee alone has an absolute interest in the policy. The insurer was bound by the provisions of Section 38 to accept such a transfer or endorsement - The only limitations placed on transferring a policy were in terms of the procedure laid out in Section 38, and subject to the terms of policy itself. The Section left no scope for the insurer to dispute the right to transfer or assign the policy. Section 38 was thus clearly mandatory and substantive. The erstwhile Section 39(4) also deserves reproduction in this vein, as it further indicated the mandatory character of Section 38.
The Appellant has argued that Section 38 could result in scenarios where it was bound to accept fraudulent policies since it had not been bestowed with discretionary powers - Held that:- There is no content in this contention, for the reason that in cases of fraud, the assignment could be challenged on that ground even after being recorded.
The Parliament intended to allow all previous assignments and transfers provided that they complied with the requirements laid out in Section 38. In the face of this clear legislative intent, no other interpretation of Section 38 is possible. It is accordingly not incumbent to discuss whether insurance policies partake of the nature of social security, or whether the transfer of such policies tantamount to wagering contracts.
It is not appropriate to import the principles of public policy, which are always imprecise, difficult to define, and akin to an unruly horse, into contractual matters. The contra proferentem rule is extremely relevant inasmuch as it is the Appellant who has drafted the insurance policy and was therefore well-positioned to include clauses making it specifically impermissible to assign policies. In the absence of any such covenant, the Appellant cannot be heard to say that such transfers or assignments violate public policy.
Appeal dismissed - decided against appellant.
-
2015 (12) TMI 1781
TPA - comparable selection - ‘M/s. Man Diesel India Limited’, as comparable company - Held that:- The undisputed facts on record are that the aforesaid company was having RPT transactions which appear to be well above the accepted limits. Requisite documents evidencing these facts are already held on record. But, these facts were not examined by the lower authorities. In view of the judgments relied upon by the Ld. Counsel, we find that since this issue goes to the root of the matter, the assessee should be given opportunity to raise a legal plea even at this stage before the Tribunal. In all fairness and to meet ends of justice, we find it appropriate to send this issue back to the file of AO/TPO for a fresh decision with respect to the said company.
The assessee shall put forth all requisite material before the AO/ TPO in support of its claim, for which proper opportunity should be provided. With these directions, we send this issue back to the file of the AO/TPO. Thus, additional ground is treated to be allowed for statistical purposes.
-
2015 (12) TMI 1780
Depreciation on investments on government securities "held to maturity" - whether such securities were held as a investments and not as 'stock-in-trade'? - Held that:- Appearing for the parties agree that the point in issue is covered by the decision of this Court in KARNATAKA VIKAS GRAMEEN BANK [2015 (12) TMI 1420 - KARNATAKA HIGH COURT] as held assessee was following the method of accounting namely, "at cost or market value, whichever is lower". It is not in dispute that this practice was accepted by the Revenue throughout - notwithstanding the preparation of the balance sheet and describing the security under a particular nomenclature in compliance with the directions/instructions issued by the RBI, the assessee would be lawfully entitled to submit the tax returns on the real taxable income in accordance with the method of accounting consistently and regularly adopted.- Decided in favour of assessee.
-
2015 (12) TMI 1779
TPA - whether the internal comparables should be adopted over external comparables for the purposes of computing ALP, in respect of transaction pertaining to export of goods - TNMM has been accepted by both the parties as MAM - Held that:- Internal comparables are to be preferred to external comparables. There is no dispute that the assessee has internal comparables. Geographical differences are not relevant when FOB price is considered.
Set aside the matter to the TPO with a direction to consider the sale in respect of export to AE’s at FOB value. Even otherwise, except for export to Germany, there are no geographical variations. The ld.TPO is directed to apply internal comparables, at FOB value, as in his view, this value is the comparable value. The assessee is directed to furnish the audited financials of the segmental accounts - Restore the issue to the files of the TPO/AO, for fresh adjudication of the ALP, as per the directions given herein - Decided in favour of assessee for statistical purposes.
-
2015 (12) TMI 1778
Continuation of Order passed - no stay order obtained - benefit of exemption - Held that:- Though Special Leave Petition was filed, the respondents have not obtained any stay order and, as such, the order in question still operates - all the industries set up pursuant to the policy of 1997 and 2007 shall continue to enjoy the benefits of full exemption as per the policy and the notifications - petition disposed off.
-
2015 (12) TMI 1777
Maintainability of appeal - tax effect - Held that:- On hearing the Ld. Departmental Representative, we find that the tax effect in these cases is less than ₹ 10 lakhs. The CBDT in its Circular No.21/2015 dated 10.12.2015 instructed its officers to withdraw all the appeals pending before the ITAT where the tax effect is less than ₹ 10 lakhs. This Tribunal is of the considered opinion that this Circular of CBDT is binding on the officers of the Department. Therefore, the Revenue cannot proceed further in these appeals. Accordingly, these appeals stand dismissed. - Decided against revenue.
-
2015 (12) TMI 1776
Anti-Competitive Activity - cord blood banking - umbilical cord stem cell banking services - It is the case of the appellant that Cryo-Save based in Bangalore and Babycell based in Lonavala were prepared to pay higher amount per case, it chose Cryobanks because of better technology - Smt. Manju Jain entered into an agreement with LifeCell to obtain its umbilical cord stem cell banking services - appellant having an arrangement with Cryobanks and LifeCell cannot be permitted to provide its services to the hospital whee Smt. Manju Jain visited - alleged abuse of dominant position - contravention of Section 3(1) of Competition Act, 2002.
Whether the finding recorded by the majority of the Commission that the appellant is guilty of acting in violation of Section 3(1) of the Act is legally sustainable?
Whether the penalty of ₹ 3,81,58,303/- imposed by the Commission by taking into consideration total turnover of the appellant for last three financial years is legally justified?
Held that:- A plain reading of Section 3 makes it clear that sub-section (1) thereof can be invoked only if the agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services causes or is likely to cause an appreciable adverse effect on competition within India. Sub-section (2) of Section 3 is declaratory in nature. It provides that any agreement entered into in contravention of the provisions of Section 3(1) shall be void. Sub-section (3) contains a presumption of an appreciable adverse effect on competition if the agreement has any of the effects/consequences enumerated in clauses (a) to (d). Sub-section (4) lays down that any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provisions of services including those specified in clauses (a) to (e) shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.
While recording a finding that the appellant is guilty of violation of Section 3, the Jt. DG and the Commission completely overlooked that the agreement entered into between the appellant and Cryobanks did not, in any manner, restrict the choice of the service provider in the relevant market i.e. market for stem cell banking. By virtue of the agreement, the appellant could provide stem cell banking services to the patients who wanted to avail such services only through Cryobanks but the latter was free to enrol any patient(s) for such services to be availed in any other hospitals, maternity homes etc. - The Jt. DG and the Commission confused the basic issue by presuming that the stem cell banking service was an integral part of the maternity services provided by the appellant hospital and this confusion has resulted in miscarriage of justice in as much as the appellant has been found to be guilty of violating Section 3(1) of the Act without any evidence that the refusal of the appellant to allow LifeCell to provide stem cell banking services to Smt. Manju Jain had appreciable adverse effect on competition.
Section 3 speaks of anti-competitive agreement and Section 4 deals with abuse of dominant position. A finding that the particular agreement is anti-competitive or any enterprise or group of enterprises are guilty of abuse of dominant position can be recorded only with reference to the particular goods, product or service. An enterprise may be engaged in manufacture, production, supply, distribution, etc. of multiple products. Another enterprise like the appellant may be engaged in providing multi-dimensional services. Such enterprise may be found guilty either of entering into anticompetitive agreement with reference to particular product/goods or services or may be held guilty of abuse of dominant position in respect of such product/goods or services, but the finding of violation of Sections 3 and/or 4 of the Act recorded by the competent authority i.e. the Commission cannot be made applicable to agreements entered into between the enterprise and another person in respect of other products, goods or services qua there is no allegation of anti-competitive agreements or abuse of dominant position and the turnover of other products and services cannot be clubbed with the one qua which a finding of violation of the provisions of the Act is recorded.
The appellant has been providing multiple healthcare services, maternity service being one of them and stem cell banking which is being provided by a third party (Cryobanks), can at best be considered as a small part of the maternity services provided to those who are desirous of availing such services. Therefore, even if the finding of the majority of the Commission that the agreement entered into between the appellant and Cryobanks is violative of Section 3(1) of the Act is to be upheld, the turnover of the appellant with reference to stem cell banking services only could be taken into consideration for the purpose of imposing penalty and not the turnover with reference to other services or income derived from other sources.
Appeal allowed.
-
2015 (12) TMI 1775
Denial of Information sought - indiscretion disclosure of information - information sought for by the respondents from the petitioner-Bank have been denied mainly on the ground that such information is exempted from disclosure under Section 8(1)(a)(d) and (e) of the RTI Act - RTI Act, 2005.
Whether all the information sought for under the Right to Information Act, 2005 can be denied by the Reserve Bank of India and other Banks to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship with other Bank on the one hand and the public interest on the other?
Held that:- The Right to Information Act, 2005 is a general provision which cannot override specific provisions relating to confidentiality in earlier legislation in accordance with the principle that where there are general words in a later statute it cannot be held that the earlier statutes are repealed altered or discarded - The Preamble of the RTI Act, 2005 itself recognizes the fact that since the revealing of certain information is likely to conflict with other public interests like “the preservation of confidentiality of sensitive information”, there is a need to harmonise these conflicting interests. It is submitted that certain exemptions were carved out in the RTI Act to harmonise these conflicting interests.
In the instant case, the RBI does not place itself in a fiduciary relationship with the Financial institutions (though, in word it puts itself to be in that position) because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust. In this case neither the RBI nor the Banks act in the interest of each other. By attaching an additional “fiduciary” label to the statutory duty, the Regulatory authorities have intentionally or unintentionally created an in terrorem effect - RBI is a statutory body set up by the RBI Act as India’s Central Bank. It is a statutory regulatory authority to oversee the functioning of the banks and the country’s banking sector. Under Section 35A of the Banking Regulation Act, RBI has been given powers to issue any direction to the banks in ublic interest, in the interest of banking policy and to secure proper management of a banking company. It has several other far-reaching statutory powers.
RBI is supposed to uphold public interest and not the interest of individual banks. RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximize the benefit of any public sector or private sector bank, and thus there is no relationship of ‘trust’ between them. RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks. It is duty bound to comply with the provisions of the RTI Act and disclose the information sought by the respondents herein - The baseless and unsubstantiated argument of the RBI that the disclosure would hurt the economic interest of the country is totally misconceived. In the impugned order, the CIC has given several reasons to state why the disclosure of the information sought by the respondents would hugely serve public interest, and non-disclosure would be significantly detrimental to public interest and not in the economic interest of India. RBI’s argument that if people, who are sovereign, are made aware of the irregularities being committed by the banks then the country’s economic security would be endangered, is not only absurd but is equally misconceived and baseless.
The exemption contained in Section 8(1)(e) applies to exceptional cases and only with regard to certain pieces of information, for which disclosure is unwarranted or undesirable. If information is available with a regulatory agency not in fiduciary relationship, there is no reason to withhold the disclosure of the same. However, where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship.
In the present case, we have to weigh between the public interest and fiduciary relationship (which is being shared between the RBI and the Banks). Since, RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? To what extent the public should be allowed to get information?
The Legislature’s intent was to make available to the general public such information which had been obtained by the public authorities from the private body. Had it been the case where only information related to public authorities was to be provided, the Legislature would not have included the word “private body”. As in this case, the RBI is liable to provide information regarding inspection report and other documents to the general public - Even if we were to consider that RBI and the Financial Institutions shared a “Fiduciary Relationship”, Section 2(f) would still make the information shared between them to be accessible by the public. The facts reveal that Banks are trying to cover up their underhand actions, they are even more liable to be subjected to public scrutiny.
We have surmised that many Financial Institutions have resorted to such acts which are neither clean nor transparent. The RBI in association with them has been trying to cover up their acts from public scrutiny. It is the responsibility of the RBI to take rigid action against those Banks which have been practicing disreputable business practices - From the past we have also come across financial institutions which have tried to defraud the public. These acts are neither in the best interests of the Country nor in the interests of citizens. To our surprise, the RBI as a Watch Dog should have been more dedicated towards disclosing information to the general public under the Right to Information Act.
Economic interest of a nation in most common parlance are the goals which a nation wants to attain to fulfil its national objectives. It is the part of our national interest, meaning thereby national interest can’t be seen with the spectacles(glasses) devoid of economic interest.
Thus, the Central Information Commissioner has passed the impugned orders giving valid reasons and the said orders, therefore, need no interference by this Court - case dismissed.
-
2015 (12) TMI 1774
CENVAT Credit - outward goods transportation agency service - Held that:- This issue is covered by the judgment of Division Bench of this Court in case of Commissioner of Central Excise & Customs v. Parth Poly Wooven Pvt. Ltd. [2011 (4) TMI 975 - GUJARAT HIGH COURT], where it was held that By no stretch of imagination can it be stated that outward transportation service would not be a service used by the manufacturer for clearance of final products from the place of removal - credit allowed - appeal dismissed - decided against Revenue.
-
2015 (12) TMI 1773
Anti-competitive Activities - bid rigging - Cartel - contract for supply of feed valves by Respondent No. 2 - suppression of material facts - it was alleged that the appellants have indulged in bid- rigging/collusive bidding and thereby contravened the provisions of Section 3(1) read Section 3(3)(a) and 3(3)(d) of the Act - penalty imposed on average turnover - case of appellant is that findings recorded by the DG and the Commission on the issues of formation of cartel and bid rigging/ collusive bidding is perverse.
Held that:- The cartel is an association of producers who by agreement among themselves attempt to control production, sale and prices of the product to obtain a monopoly in any particular industry or commodity. Analysing the object of formation of a cartel in other words, it amounts to an unfair trade practice which is not in the public interest. The intention to acquire monopoly power can be spelt out from formation of such a cartel by some of the producers. However, the determination whether such agreement unreasonably restrains the trade depends on the nature of the agreement and on the surrounding circumstances that give rise to an inference that the parties intended to restrain the trade and monopolise the same.
The observation made by the Commission that the appellants had adopted a strategy which involved supplementary/complementary bidding by EL and FTRTIL is based on pure conjectures and is liable to be rejected because before making this observation, the Commission did not give any opportunity to the two appellants to have their say. Similarly, the observation made by the Commission that the Tender Committee committed an illegality in overlooking the bids of EL and FTRTIL is ex facie erroneous. Once the competent authority had laid down particular conditions required to be fulfilled by the tenderer and the two of the three tenderers failed to comply with the same, the Tender Committee and Respondent No. 2 cannot be said to have committed any illegality by not acting upon their tenders. The Tender Committee could have recommended for fresh tendering and Respondent No. 2 could have accepted that recommendation but their failure to do so cannot lead to an inference that they have acted with ulterior motive or that the Tender Committee ought to have waived the defects/deficiencies and allowed the two appellants i.e. EL and FTRTIL to participate in the bid or called them for negotiations.
The variation in the quantum of price quoted by the appellants is also evident from the statement furnished by the learned counsel for Respondent No. 2. Therefore, it must be held that both the DG and the Commission committed grave error by relying upon the so-called past conduct of the appellants in quoting identical price as a plus-factor for arriving at a conclusion that they had formed a cartel.
The findings and conclusions recorded by the DG and the Commission that the appellants are guilty of cartel formation and bid-rigging are legally unsustainable - also, the penalty imposed by the Commission is based on erroneous interpretation of Section 27(b) and is liable to be set aside.
The impugned order is set aside and the penalty imposed on the appellants by the Commission is quashed - Appeal allowed.
-
2015 (12) TMI 1772
Powers of liquidator - title to the paintings - Held that:- As subject property are very valuable and here is a person who claims the paintings belong to her whereas according to the Liquidator it belongs to/appears to belong to the company (in liquidation). It is necessary for the ends of justice that the practice and procedure of the court and provisions of the Code of Civil Procedure are applied. This would also be beneficial to Sheetal Mafatlal who will get an opportunity to prove that the paintings rightfully belong to her and not the company (in liquidation).
Sheetal Mafatlal to file an affidavit in evidence together with compilation of documents to prove that the 44 paintings lawfully/legally belong to her, that she is entitled thereto and she has title to those paintings and serve a copy thereof upon the Official Liquidator not later than 11th January, 2016. Ofcourse, the Official Liquidator will be entitled to cross examine and file further evidence as well to prove otherwise.
As the paintings are of high value and the petition has been pending since 1996, it is necessary that the issue of title to the paintings is decided quickly. It is made clear that no further time will be granted to Sheetal Mafatlal to file her evidence and compilation of documents.
As regards prayer clauses – (b), (c) and (d) in the Official Liquidator's Report, to the extent it relates to the paintings, the Official Liquidator may file further report after the issue of title to the paintings claimed by Sheetal Mafatlal is determined. As regards the other articles contained in prayer clauses - (c) and (d), the Official Liquidator may list those articles and file further reports as necessary.
As regards prayer clause – (a) in the Official Liquidator's Report, the ex-directors of the company (in liquidation) are directed to file within four weeks, the Statements of Affairs to the extent not submitted, as required under section 454 of the Companies Act, 1956 and handover the books of account/record of the company (in liquidation) to the Official Liquidator to enable the Liquidator to further in winding up proceedings.
Mr. Atulya Mafatlal, an ex-director of the company is directed to (a) file an affidavit in order to indicate his stand, with the necessary material, as to (i) original ownership of paintings; (ii) Fixed Asset Inventory; (iii) explain as to how the statutory auditor could have examined all records such as cash book, bank book, sale register, purchaser register, expense vouchers, sales invoice, purchase invoice, general ledger, stock register, minute book and list of fixed assets (containing location of fixed assets) if the account of records were lost in the floods of 26th July, 2005 and (b) produce the records mentioned in para 4(iii) that were perused by the Statutory Auditors for preparing Balance Sheets for the period between 11th January, 2006 to 31st March, 2007.
This affidavit to be filed and copy served on the Official Liquidator on or before 5th January, 2016. The Official Liquidator's representative is directed to take inventory and/or inspection and/or physical possession of the records from the factory premises at Bhiwandi, if not done already.
-
2015 (12) TMI 1771
Recovery of tax dues - income tax demand of ₹ 1468.64 crores - attachment of stock stocks of beer, foreign liquor (FL), and Indian made foreign liquor (foreign liquor), lying in the various godowns of APBCL. - Companies, which manufacture and supply beer, foreign liquor and Indian made foreign liquor to APBCL, invoked the jurisdiction of this court, under article 226 of the Constitution of India, contending that the stocks lying in the godowns of APBCL (which were attached by the Income-tax Department) belonged to them ; and any delay in the sale of the attached stock of beer would result in wastage of the entire stock. - The sale of the attached property (beer, foreign liquor and Indian made foreign liquor), in terms of the interim orders passed by this court, yielded ₹ 489.07 crores.
Under the guise of deducting manufacturing expenses, and incidental expenses for delivery, almost the entire sale proceeds of ₹ 489.07 crores has been handed over by APBCL to the petitioners and the Government of A.P, leaving a paltry sum of ₹ 3.44 lakhs (rupees three lakhs forty-four thousand only) as the balance remaining in the separate account being maintained in terms of the interim orders passed by the Division Bench. - These acts of subterfuge has rendered the attachment order, passed by the Tax Recovery Officer, redundant for, even if the writ petitions were to be dismissed later, the Income-tax Department would be left only with ₹ 3.44 lakhs
Whether an interlocutory order, which travels beyond even the main relief sought for in these writ petitions and, in effect, results in the writ petitions being allowed, without even a counter-affidavit being filed by the respondent-Income-tax Department, can be passed at the stage of admission of the writ petitions?
Held that:- Power to grant ad interim ex parte orders should be exercised with great circumspection - Ordinarily ad interim orders, which have the effect of granting the main relief itself, should not be passed - Interim orders should not be passed for the mere asking.
Are the parameters for grant of, and in continuing, the interim orders, fulfilled in the present cases? - Held that:- Courts have to strike a balance between two extreme positions, on the one hand whether the writ petition would itself become infructuous if interim order is refused, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that, in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed - Before an interim order is passed, the court must consider the question as regards existence of a prima facie case, balance of convenience, and whether the Writ petitioners would suffer irreparable injury, if the interim relief sought for is refused.
Has a prima facie case been made out in the present batch of writ petitions? - Held that:- As the writ petitions have already been admitted, it must, necessarily, be presumed that the petitioners have made out a prima facie case. The fact, however, remains that a strong prima facie case, of a standard much higher than just a prima facie case, must be made out for an interim order to be passed, which would amount to granting the final relief in the writ petition. We are afraid that the petitioners have not made out a strong prima facie case for the grant of such relief.
Does the balance of convenience lie in favour of the petitioners, and would they suffer irreparable injury if the interim orders are vacated? - Held that:- Considerations of balance of convenience, and irreparable injury, forcefully tilting the balance totally in favour of the petitioners, would alone justify granting a final relief by way of an interim order. While the balance of convenience may be in favour of retaining the sale proceeds in a separate account, and the amount therein to be paid to the person held entitled thereto on the writ petitions being finally heard and decided, it is certainly not in favour of the petitioners being paid the entire sale proceeds even without an adjudication of their claim that they continue to retain title over the goods even after its delivery to APBCL - As the petitioners could have been paid these amounts later also, there were no compelling circumstances, for APBCL not to retain the sale proceeds in a separate bank account, otherwise than on account of the interim orders passed by this court earlier. The interim orders, to the extent it permitted the manufacturing expenses and incidental expenses for delivery, to be adjusted from the sale proceeds must be, and is hereby, vacated.
As a substantial part of the sale proceeds have already been paid by APBCL to the petitioners and the Government of Andhra Pradesh, what orders can this court pass consequent upon the interim orders, passed earlier, being vacated in part ? An order of stay, granted pending disposal of a writ petition or other proceeding, comes to an end with the dismissal of the substantive proceeding. It is the duty of the court, in such a case, to put the parties in the same position they would have been but for the interim order of the court, applying the doctrine of restitution. The jurisdiction to make restitution is inherent in every court, and should be exercised whenever justice of the case demands.
The petitioners herein and the Government of Andhra Pradesh shall forthwith and, in any event, on or before January 20, 2016, redeposit the amounts received by them from APBCL on the sale of the stocks (beer, foreign liquor and Indian made foreign liquor) attached by the Income-tax Department. Such redeposit would ensure that the entire sale proceeds (i.e., ₹ 489.07 crores less the TDS of ₹ 4.81 crores) remain in the separate account directed to be maintained by this court. The interests of the petitioners, the Income-tax Department, and the Government of Andhra Pradesh would be secured thereby as, after the writ petitions are finally heard and decided, these amounts can be paid to those entitled thereto. - The amount lying in the separate account, after redeposit of the amounts as directed hereinabove, shall be invested by the APBCL in short- term cumulative fixed deposits, and proof thereof shall be furnished to the Income-tax Department latest by January 26, 2016. The amounts invested in fixed deposits shall be subject to the result of the writ petition.
Petition disposed off.
-
2015 (12) TMI 1770
Assessment of income from the sale of 18 flats - selection of assessment year - “transfer” in terms of Section 2(47) - Held that:- Tribunal was justified in holding that the income from the sale of 18 flats to M/s Audi Constructions Pvt. Ltd., is not assessable in the year 2008-2009 as on the basis of the facts on record, the learned Tribunal found that the assessee had not delivered the possession of the flats to M/s Audi Constructions Pvt. Ltd. in the subject year. Tribunal also found that it is not the case of the appellant that the agreements executed by assessee are bogus or fictitious upon appreciating the evidence on record and as such, there is no substantial question of law which can arise in the above appeals as this Court in the present appeals cannot reappreciate the evidence on record.
Tribunal also refused the contention of the appellant upon appreciating the evidence on record to come to the conclusion that the provisions of Section 2(47) have not been satisfied. Substantial questions of law proposed by the appellant as such would require re-appreciation of evidence which exercise cannot be done in the above appeals under Section 260A of the Income Tax Act as the learned counsel appearing for the appellant as pointed out herein above has failed to show that there is any perversity in such findings or that any material evidence has been discarded or that the learned Tribunal has come to such conclusion by misreading the evidence on record.
............
|
9911796707
