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Case Laws
Showing 121 to 140 of 2006 Records
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2018 (4) TMI 1890
Maintainability of application - initiation of CIRP - Corporate Debtor failed to liquidate its financial debts - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The present petition has been filed in the required format through its duly authorised signatory and has complied with the mandatory requirements under the Code including issuance of a demand notice to which no reply was given. The copies of the invoices have also been annexed - On being served the Corporate Debtor put in its appearance through their advocate and made a categorical statement that they admit the outstanding liability but are unable to repay the same. The demand notice under Section 8 was also issued prior to the filing of the present petition and no dispute was raised in respect of the same.
In View Of the admitted liability Of a financial debt towards the Operational Creditor, the prayer of the Petitioner merits consideration - Petition admitted - moratorium declared.
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2018 (4) TMI 1889
Requirement for payment of pre-deposit - liability of the petitioner to tax in respect of set-top-boxes - HELD THAT:- Since the petitioner is on first appeal, he would have paid at least 12.5% of the disputed tax. But according to the petitioner an adjustment of the ITC was made, leading to a total payment of nearly 24% of the disputed tax - In matters of similar nature, this Court granted stay on condition that 25% of the disputed tax is paid.
The writ petition is disposed of granting an interim stay of collection of the balance of disputed tax, pending disposal of the first appeal, subject to the condition that the petitioner deposits 25% of the disputed tax, less the amount already paid, within a period of three weeks from the date of receipt of a copy of this order.
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2018 (4) TMI 1888
Provisional attachment order - land sold to the appellant by the Bank officials, by way of private negotiations, as against the guideline value, without properly resorting to the regular methods of bringing the property to public auction - HELD THAT:- The learned Single Judge has thoroughly appreciated the facts and circumstances of the case and declined to interfere with the impugned order of provisional attachment, however, granted liberty to the appellant to approach the adjudicating authority, who is the fact finding authority
There are no illegality or irregularity in the order passed by the learned Single Judge, warranting interference with the same, except to direct the adjudicating authority to expedite the matter and pass order on merits and in accordance with law after hearing both the parties. It is for the adjudicating authority as a fact finding authority to look into the grievance of the appellant with regard to raising of provisional attachment or whether they are genuine party are whether there is any camouflage activity.
Appeal disposed off.
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2018 (4) TMI 1887
Right to marry a person - parens patriae power - constitutional challenge on the ground of right to privacy.
As per Dipak Misra, C.J.I. and A.M. Khanwilkar, J.
HELD THAT:- t is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow - Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept.
In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony.
The investigation by the NIA in respect of any matter of criminality may continue in accordance with law - Appeal allowed.
As per Dr. D.Y. Chandrachud, J.
The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High Court was of the view that at twenty four, Hadiya "is weak and vulnerable, capable of being exploited in many ways". The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind.
Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.
This Court by its interim order had allowed the National Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an investigation. We clarify that NIA may exercise its authority in accordance with the law within the bounds of the authority conferred upon it by statute - Appeal allowed.
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2018 (4) TMI 1886
Maintainability of petition - HELD THAT:- The grievance of the petitioner can be redressed by issuing direction to respondent No.4 to take decision on the representation/appeal tendered by the petitioner on 20.2.2018 as expeditiously as possible and preferably within a period of four weeks from today and it is accordingly directed.
Petition disposed off.
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2018 (4) TMI 1885
Constitutional Validity of Section 234E - Late filing fee under Section 234E - exercise of power under Section 200A - charging of fees payable u/s 234E prior to amendment to section 200A(1)(c) of the Act vide Finance Act, 2015 w.e.f. 01.06.2015, while processing the TDS returns HELD THAT:- As decided in SRI. FATHERAJ SINGHVI AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (9) TMI 964 - KARNATAKA HIGH COURT] Amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/ returns in the present three appeals for the period prior to 01.06.20 15 was not empowered to charge fees under section 234E of the Act. Therefore, the intimations issued by the AO under section 200A of the Act in these appeals are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted - we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 - Decided in favour of assessee.
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2018 (4) TMI 1884
Royalty receipt - customer royalty programmes, provided by the assessee to its client and customers - fees for technical services amounted to royalty under Article 12 of India – US DTAA - HELD THAT:- This question is covered by the ruling of this Court in assessee’s case i.e. Director of Income Tax Vs. Sheraton International Inc.[2009 (1) TMI 27 - DELHI HIGH COURT].
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2018 (4) TMI 1883
Validity of reopening of assessment u/s 147 - eligibility of reasons to believe - AO received information from DIT Investigation, Varanasi that the assessee’s company has received bogus entries - assessee argued that reopening based on non-existing facts as Assessee has been able to explain that the income which was believed to have escaped assessment was explainable - whether Tribunal was justified in holding that the proceedings for reassessment under Section 148/147 were initiated by the ld. Assessing Officer on non-existing facts because ultimately the Assessee has been able to explain that the income which was believed to have escaped assessment was explainable but some other additions were made under the assessment order” ? - HELD THAT:- As tribunal being the last fact finding authority has not given any cogent reason for reversing the finding recorded by CIT(A) in para no.5.3. Solely on that ground, we set aside the order of the tribunal and remit the matter back to the tribunal. It is made clear that we are not commenting on any of the judgments relied by the assessee.
The tribunal will reconsider the judgments keeping in mind, the judgment of Supreme Court, High Court as well as judgment of the tribunal itself. We are not answering the issue and the matter is remitted back as stated above. It will be open for the tribunal to decide the issue in accordance with law.
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2018 (4) TMI 1882
Disallowance of payment on account of EDO Charges - allowable expenditure u/s 37 or penal in nature as interest has been charged by concerned authority for delay - AO has disallowed the same considering it penal in nature - HELD THAT:- License the agreement allows assessee to make payments in installments subject to making an additional payment at 12% per annum on the unpaid portion of the amount - in case of any delay in payment of instalments in the manner agreed upon, as on due date, additional interest of 3% per annum would be chargeable, which assumes the nature of penalty.
CIT (A) allowed interest paid by assessee as per the agreement at 12% as a part of business expenditure however disallowed interest paid over and above 12%, as additional payment of 3% is not covered in the normal course of the payment by assessee. It was held that the additional interest of 3% is penal in nature for failure to make payment of installment on time. No infirmity in such observation of Ld. CIT (A) - Decided against revenue.
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2018 (4) TMI 1881
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Petitioner filed Certificate issued by IDBI Bank as required under Section 9(3)(c) of the Code and also filed Affidavit stating that no dispute has been raised by the Corporate Debtor - The Counsel for the Corporate Debtor appeared for the two hearings on 13.03.2018 and 19.03.2018, failed to appear on 03.04.2018, 05.04.2018, 13.04.2018 and 17.04.2018. Since the date of default was wrongly mentioned in the Petition the Counsel for the Petitioner was directed to rectify the defect in the Form 5 and serve a copy on the Corporate Debtor. Accordingly, the Petitioner complied with the direction and filed proof of service, however on 17.04.2018 also there was no representation on the side of the Corporate Debtor.
This Bench having satisfied with the Application filed by the operational creditor which is in compliance of provisions of section B & 9 of the Insolvency and Bankruptcy Code admits this Application declaring Moratorium.
Petition allowed.
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2018 (4) TMI 1880
Disallowance U/s.14A r.w.r.8D - HELD THAT:- Section 14A of the Act only specifies that no deduction shall be allowable in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It does not specify with respect to expenditure incurred on taxable income. Therefore in the case where assessee incurs revenue expenditure towards Investments, the income from which is taxable, the provisions of Section 14A of the Acted does not apply. Hence the Investments made by the assessee, wherein the income derived is taxable provisions of Section 14A of the Act are not applicable.
The decision rendered by the Delhi Benches of the Tribunal in the case ACIT & ANR v/s. Vireet Investment PVT.LTD. & ANR [2017 (6) TMI 1124 - ITAT DELHI] also fortify our view wherein it was held that “As per Rule 8D(2)(iii), only those investments were to be considered for computing average value of investment which yielded exempt income during year under consideration.” Accordingly we hereby direct the Ld.AO to compute the disallowance U/s.14A r.w.r., 8D(2)(iii) of the Rules only on the investment which yield exempt income.
Disallowance of interest expenditure u/s.36(1)(iii) - HELD THAT:- When the assessee has own interest free funds such as share capital and reserves & surplus, it should be presumed that the interest free loan was extended from such funds. The decision relied by the Ld.AR is applicable to the facts of the case present before us. The decisions relied by the Ld.DR are not identical to the facts of the case because all those cases was related to diversion of interest bearing funds. Therefore following the ratio of the decision relied by the Ld.AR, we hereby direct the Ld.AO to delete the addition made by the Ld.AO by holding that the assessee had advanced interest free loan from non-interest bearing funds.Appeal of the assessee is allowed.
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2018 (4) TMI 1879
TDS u/s 195 - PE in India - commission paid to non-resident agents towards machines sold in India applying provisions of sec. 9(1)(i) - HELD THAT:- As decided in own case for the assessment year 2009- 10 once we come to the conclusion that the income embedded in these payments did not have any tax implications in India, no fault can be found in not deducting tax at source from these payments or, for that purpose, even not approaching the Assessing Officer for order under section 195. In our considered view, the assessee, for the detailed reasons set our above, did not have tax withholding liability from these payments. As held by Hon’ble Supreme Court in the case of GE India Technology Centre Pvt Ltd [2010 (9) TMI 7 - SUPREME COURT] payer is bound to withhold tax from the foreign remittance only if the sum paid is assessable to tax in India. The assessee cannot, therefore, be faulted for not approaching the Assessing Officer under section 195 either. As regards the withdrawal of the CBDT circular holding that the commission payments to non resident agents are not taxable in India, nothing really turns on the circular, as de hors the aforesaid circular, we have adjudicated upon the taxability of the commission agent’s income in India in terms of the provisions of the Income Tax Act as also the relevant tax treaty provisions.
Unaccounted income - no disclosure of sale of machines - assessee has responded that these machines were in transit for shipment as on 31st March, 2011 and machines were actually shipped in next year with bill of lading date ranging from 5th April, 2011 to 9th April, 2011 therefore, these machines were treated as part of closing stock - HELD THAT:- As decided in the case of assessee itself for the assessment year 2004-05 to A.Y.2010-11 Section 26 of the Act provides that unless otherwise agreed, the goods remain at the seller risk. In case of FOB contracts the goods are delivered free on board the ship once the seller has placed the goods safely on board at his cost and thereby handed over the possession of the goods to the ship in transfer of the Bill of Landing or other document, the responsibility of the seller ceases on the delivery of the goods to the buyer is complete. After considering the above facts and legal findings we considered that sale was executed under FOB as per which the risk was transferred from the seller to the buyer when the goods put on ship or rail. In view of above, we are not inclined with the decision of the Ld. CIT(A) and we are of the view that when the sale was executed under FOB, CIF terms as per which the risk was transferred from the seller to the buyer when the goods put on ship or rail. Therefore, the appeal of the assessee is allowed on this issue
Disallowance of depreciation - as per AO claim of depreciation on non-compete fees is not justified because the payment of non-compete fees did not merely facilitate conduct of business as it would be a capital expenditure by merely because of capital expenditure it would not be necessary that it is eligible for depreciation - HELD THAT:- Non-compete fee paid by the assessee to Mr. Patel is a capital expenditure and the assessee has acquired an intangible right which is depreciable and depreciation claimed is allowable under section 32(1)(ii) of the Act. Therefore, we do not find any reason to interfere in the decision of the Ld. CIT(A). Accordingly, the appeal of the revenue is dismissed.
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2018 (4) TMI 1878
Dishonor of Cheque - evidentiary value of additional documents produced - HELD THAT:- The Appellate Court is having ample power for receiving the additional evidence subject to the condition that the Court should came to the conclusion that the additional evidence is necessary. With regard to the additional documents now submitted by the respondent, the learned Additional District Judge hold that the particulars of those documents are already mentioned in the reply notice sent by the respondent. Moreover, it was mentioned in the order, as the documents which are enclosed in the petitions are all relates to the year of 1997-1999. Further, it was identified by the learned Additional District Judge that the 11th document enclosed in the petition is a document certified by the competent court after seeing the original.
Now, on going through the defense taken by the respondent in the Criminal Appeal is the alleged cheque pertaining to the Criminal Appeal is not handed over to the petitioner by the respondent directly. The said cheque goes to the hands of the petitioner only through one V.Madeswaran. The said defense was already mentioned in the reply notice sent to the revision petitioner - the particulars available with the additional documents are related with the defense taken by the respondent whereby taking the view of the learned Additional District Judge that those documents are necessary for disposing the Criminal Appeal does not warrant any interference.
This Court came to the conclusion that the impugned order passed by the learned Additional District Judge, Nammakal is only within the legal frame work - Criminal Revisions are dismissed.
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2018 (4) TMI 1877
Approval of scheme of amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair, reasonable and is not contrary to public interest - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition is made absolute in terms of prayer as provided therein and fixed Appointed date as 1st April, 2017.
The scheme is approved - application allowed.
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2018 (4) TMI 1876
Stay of the proceedings disabling the DIN numbers - Direction to 1st respondent to reactivate Or restore the DIN numbers of the petitioners herein - HELD THAT:- In the considered view of this Court, restoration of the DIN numbers of the Directors concerned is necessary not only for submission of annual returns and financial statements of the subject company, but also for discharging their functions as Director in the other Companies and, therefore, restoration of the DIN numbers of the Directors concerned is essential. Moreover, the petitioners also intend to follow the procedure before they take appropriate steps for closure of their company of which they are the Directors by following the procedure established by law as such a course, according to them, would meet the ends of justice.
There shall be stay of the proceedings disabling the DIN of the present petitioners. There shall be a further direction to the 1st respondent to restore the DIN numbers of the petitioners pending disposal of this writ petition, so as to enable them to submit annual returns and financial statements of the subject Company of which they are the Directors and avail the benefits of COD Scheme - Post after four weeks in Adjourned Motion List, for counter and hearing.
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2018 (4) TMI 1875
Exemption u/s 11 - Contravention of Section 13(1)(d) - Dividend income - Tax at margin rate u/s 164 - trust received gift of TISCO Ltd. shares which were subsequently written off - Whether tax at margin rate u/s 164(2) is to be levied on the income earned from non-exempt asset - whether holding of ineligible assets is sufficient to attract the provisions of Section 13(1)(d)(iii)? - HELD THAT:- Delay condoned. Leave granted.
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2018 (4) TMI 1874
Stay of demand - petitioner to pay 20% of the disputed tax - HELD THAT:- Commissioner of Income Tax (Appeals) as well as before the ITAT, the petitioner has succeeded for the assessment years 2010-11 and 2012-13, and it is the Revenue, which is on Appeal. Therefore, balance of convenience is entirely in favour of the assessee/petitioner, which is also the Government of India undertaking sponsored by the Ministry of Commerce and Industry. Thus, the impugned order, directing the petitioner to pay 20% of the disputed tax is not sustainable in law.
For the above reasons, the Writ Petition is allowed, the impugned order is set aside. There will be an order of stay of collection of the tax pertaining to the assessment year 2015-16 till the disposal of the Appeal. The learned counsel appearing for the petitioner submitted that before the matter could be taken up, the third respondent has already taken a demand draft from the petitioner's bankers for a sum.
The petitioner is granted liberty to submit a representation to the respondents 2 and 3 for repatriation of the said amount of ₹ 36,00,000/- to the bank account of the petitioner. If such representation is made, the respondents 2 and 3 shall consider the same, bearing in mind the observation made by the second respondent, in the earlier order, dated 31.10.2017 as well as the observation made in the order, dated 01.12.2017, while granting stay of the entire demand. Such decision should be taken within a period of two weeks from the date on which the representation is made.
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2018 (4) TMI 1873
Reassessment of order - period of limitation for reassessment - VAT liabilities against the petitioner for FY 2011-2012 - subsection [1] of Section 35 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- In any case, when the audit assessment was carried out, Section 34 [8A] could not have been resorted to. There are number of other infirmities in the assessment order also.
Notice to the respondents, returnable on 22nd June 2018. Impugned order is stayed.
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2018 (4) TMI 1872
Ex-parte order - HELD THAT:- We are of the view that in the facts of the present case, the assessee remained unrepresented for no fault of its own. Accepting the explanation offered by the assessee for remaining unrepresented on the date of hearing as bonafide and true, the impugned order is recalled exercising the powers vested by proviso to Rule 24 of the ITAT Rules 1963, the impugned ex-parte order is recalled. Support is drawn from the decision in the case of CIT Vs Ansal Housing Construction Ltd. [2004 (5) TMI 22 - DELHI HIGH COURT]
Accordingly, the appeals are restored back to original position and the Registry is directed to fix the appeals on 05.06.2018 for which date no notice of hearing is to be issued to the parties as the date was announced on the date of hearing itself.
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2018 (4) TMI 1871
Depreciation on photo-copy machines - @ 15% or 60% - HELD THAT:- We find that the assessee has separately shown photo-copiers and has claimed depreciation @ 15% only. This can be seen from the schedule of fixed assets and depreciation exhibited.
The impugned assets on which the dispute arose are multifaceted printers having dimensional functions but at the same time, the impugned assets are printers and are part and parcel of the computer system.
The Hon’ble High Court of Delhi in the case of BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] has held that computer accessories and peripherals such as printers, scanners and server, etc., form an integral part of computer system and, hence, they are entitled to depreciation at higher rate of 60%. Thus we direct the A.O. to allow depreciation @ 60%. - Decided in favour of assessee.
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9911796707
