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Showing 121 to 140 of 1255 Records
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2015 (5) TMI 1144
Availability of effective alternative remedy - case of petitioner is that as the order of assessment has been passed during the pendency of the writ petition and the notice (Annex. 4) issued by the respondents is absolutely without jurisdiction, which has led to passing of the assessment order, the petitioner is entitled to question the assessment order in the present writ petition - Held that: - Once a order of assessment has been passed by the respondents in the above circumstances, the plea raised by learned counsel for the respondents that as now the petitioner has effective alternative remedy by way of appeal before the Commissioner (Appeals), wherein besides the assessment order it is open for the petitioner to question the legality and validity of notice under Section 147/148 of the Act, the petitioner needs to approach the appellate authority under the provisions of the Act, assumes significance.
Hon'ble Supreme Court in the case of Chhabil Dass Agarwal [2013 (8) TMI 458 - SUPREME COURT], has laid down that the application/petition filed by the petitioner cannot be entertained on account of availability of effective alternative remedy - In view of the fact that post amendment the petitioner would be seeking to question the notice under Section 148 as well as assessment order, it cannot be said that the judgment in the case of Chhabil Dass Agarwal is not applicable to the facts of the present case - the application seeking amendment in the writ petition, the second stay application and the writ petition filed by the petitioner are dismissed.
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2015 (5) TMI 1143
Availability of effective alternative remedy - case of petitioner is that as the order of assessment has been passed during the pendency of the writ petition and the notice (Annex. 4) issued by the respondents is absolutely without jurisdiction, which has led to passing of the assessment order, the petitioner is entitled to question the assessment order in the present writ petition - Held that: - Once a order of assessment has been passed by the respondents in the above circumstances, the plea raised by learned counsel for the respondents that as now the petitioner has effective alternative remedy by way of appeal before the Commissioner (Appeals), wherein besides the assessment order it is open for the petitioner to question the legality and validity of notice under Section 147/148 of the Act, the petitioner needs to approach the appellate authority under the provisions of the Act, assumes significance.
Hon'ble Supreme Court in the case of Chhabil Dass Agarwal [2013 (8) TMI 458 - SUPREME COURT], has laid down that the application/petition filed by the petitioner cannot be entertained on account of availability of effective alternative remedy - In view of the fact that post amendment the petitioner would be seeking to question the notice under Section 148 as well as assessment order, it cannot be said that the judgment in the case of Chhabil Dass Agarwal is not applicable to the facts of the present case - the application seeking amendment in the writ petition, the second stay application and the writ petition filed by the petitioner are dismissed.
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2015 (5) TMI 1142
Arbitration Agreement - refund of an amount representing 5% of the value of the contract which was deducted by the third respondent - Held that: - granting the relief which is sought in these proceedings, would virtually amount to a money decree. Since there is an arbitration agreement between the parties, the petitioner will have to invoke the terms of the agreement - we decline to entertain the petition and relegate the petitioner to invoke the terms of the arbitration agreement - petition dismissed.
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2015 (5) TMI 1141
Oppression and mismanagement - Held that:- As regards deletion of clause 31(a), 32 and 39(b) of the Articles of Association as being harsh, burdensome and oppressive to the Petitioners suffice it to say that these articles were amended with the consent of the Petitioners. The question whether the invocation or use of powers contained in these clauses of the Articles of Association was harsh, burdensome and oppressive to the Petitioner shall be considered at the time of final adjudication of the Petition.
Therefore, in exercise of the powers conferred upon me under section 402 of the companies Act 1956, I order that final adjudication of this company Petition shall be deferred till:
(a) Adjudication by the Enforcement Directorate on the validity of the acquisition by and cancellation of 3,32,440 shares held by P-1 in the company, and
(b) Adjudication on the prayer for withdrawal of reliefs claimed in sub-para (b), (c), (d) and (e) of para 32 in O.S. 139 of 2012 by the High Court of Madras.
No sooner an order is passed by the Directorate of Enforcement on the validity of the acquisition of shares by AJP pursuant to amalgamation and cancellation of 3,32,440 equity shares held by P-1 in R-1 company and an order is passed by the High Court of Madras (seeking withdrawal of reliefs) at prayer (b), (c), (d) and (e) in para 32 of O.S. No. 139/2012 and a copy of such orders are placed on record, the Company Petition shall be placed before this Board for final adjudication.
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2015 (5) TMI 1140
Capital gain chargeable to tax u/s 45 - sale of land - land sold by the assessee could be said to be “Capital Asset” - Held that:- The Hon’ble Third member has agreed with the view taken by the Hon’ble Accountant Member that the land sold by the assessee was not an agricultural land. Accordingly, as per the majority view, the above said issue is decided in favour of the revenue.
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2015 (5) TMI 1139
Income from sale of shares - capital gain or business income - Held that:- According to the figures placed in the chart the assessee in earlier year has dealt in number of scrips i.e. 11 and in respect of A.Y 2008-09 the scrips dealt in are 16. There is not much difference in the position of sale and purchase of shares except higher value of the shares”, the period of holding is also substantial and main income has been earned by the assessee in two scrips only. All these positions have been described in the chart , which have been reproduced in the above part of this order.
AO has not brought out any substantial difference in the facts between the case for the year under consideration and for assessment year 2007-08. The assessee is an old person and is regularly making investment in the shares and the number of scrips dealt is also not high. We do not find any differential fact for the year under consideration as compared to the immediate preceding assessment year for which similar activity has been held to be assessable under the head capital gain. There is also no substantial difference in the activities carried out by the assessee in individual capacity vis-à-vis in the capacity of HUF. The assessee did not utilize the borrowed funds for making investment as the entire investment is made out of own capital of the assessee. Keeping in view all these facts, which have been accepted by Ld. CIT(A) by detailed discussion in the case of HUF and also in view of facts of the present case and position depicted in the charts, we are of the opinion that Ld. CIT(A) did not commit any error concluding that such income of the assessee was assessable under the head “capital gain" - Decided against revenue
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2015 (5) TMI 1138
TPA - selection of comparable criteria - Held that:- The Assessee, is a subsidiary of Cypress Semiconductor Technology Ltd., Cayman Island and is engaged in providing software development and testing services to its associated enterprises (AEs) as a captive service provider in the areas of integrated circuits for memory, interface and data communication applications, thus companies functionally dissimilar with that of assessee need to be added to final list of comparability.
Disallowance of deduction claimed u/s.10A of the Act in respect of profits of the Assessee’s Bangalore unit - Held that:- Bangalore unit was not formed by reconstruction of an existing unit or the business of the new unit had not commenced prior to registration with the STPI and therefore deduction u/s.10A of the Act ought not to have been denied on the profits of the Bangalore unit. The deduction claimed by the Assessee is directed to be allowed. The relevant grounds of appeal of the Assessee are allowed.
Computation of 10A claim - Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges and insurance charges incurred be excluded both from export turnover and total turnover, as has been prayed for by the assessee in the alternative. In view of the acceptance of the alternative prayer, we are of the view that no adjudication is required on the ground whether the aforesaid sums are required to be excluded from the export turnover.
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2015 (5) TMI 1137
Reference to a historically respected personality - Poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer - whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible - Concept of obscenity
Held that:- When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge under Section 292 IPC cannot be flawed.
Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2.10.1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of certain employees, he tendered unconditional apology in the next issue of the ‘Bulletin’. Once he has tendered the unconditional apology even before the inception of the proceedings and almost more than two decades have passed, we are inclined to quash the charge framed against him as well as the printer. We are disposed to quash the charge against the printer, as it is submitted that he had printed as desired by the publisher. Hence, they stand discharged. However, we repeat at the cost of repetition that we have not expressed any opinion as to the act on the part of the author of the poem, who is co-accused in the case, and facing trial before the Magistrate in respect of the offence punishable under Section 292 IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged.
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2015 (5) TMI 1136
Extension of stay - whether delay in hearing being not attributable to the assessee? - Held that:- This Tribunal in its order dated 31.10.2014 granted stay of recovery to the assessee for the balance remaining amount of total demand of ₹ 129,42,20,422. The assessee had already paid ₹ 60 crores out of the said demand. The stay was granted subjected to condition that assessee should pay a further sum of ₹ 9,42,20,422 before 30.11.2014. The stay was granted by the Tribunal considering the merits of the case, balance of convenience and financial position of the assessee. The assessee had complied with the conditions set out in the stay by effecting further payment of ₹ 10 lakhs on 25.11.2014. The case has been posted for hearing on 8.7.2015. We are satisfied that there is no delay attributable to the assessee. We therefore grant a further stay for a period of six months w.e.f. 1.5.2015, or till the disposal of the appeal, whichever is earlier.
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2015 (5) TMI 1135
Offence punishable u/s 15 the NDPS Act - sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ₹ 1 lakh each and, in default of payment of fine, to suffer rigorous imprisonment for a further period of one year - Held that:- At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence.
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2015 (5) TMI 1134
Arbitral award challenged - ground on which the award was set aside by the learned Judge was that Clause 7 of the Protocol Agreement entered into between the parties and which gave the right of first refusal to the Appellant to purchase the shareholding of the Respondent, was contrary to section 111A of the Companies Act, 1956 - whether it impinges on the free transferability of shares of a public company as contemplated under section 111A of the Companies Act? - Held that:- Clause 7 of the Protocol Agreement inter alia provides that if either party desires to part with or transfer its shareholding or any part thereof in the equity share capital of MSL, such party shall give first option to the other party for the purchase of such shares at the agreed price, or in the absence of such agreement, decided upon by arbitration. The party desiring to part with or transfer its shareholding or any part thereof, is required to give written notice to the other party specifying its intention to do so and the rates at which it is willing to transfer/part with the same. Once this is done, clause 7 envisages 3 scenarios. (1) If the other party within 30 days of receipt of such notice agrees to such proposal, the party giving the notice is bound to sell such shares at the rate specified in the notice. (2) If the other party is willing to purchase the shares but considers the rate proposed in the notice as too high or unacceptable, it would communicate its intention to purchase the shares within 30 days from receipt of the notice and the question of rate is to be referred to arbitration. (3) If the other party, on receiving the notice to purchase the shares, fails to accept the said proposal within 30 days of its receipt, the party giving the notice is free to sell the shares to any other person, but only at a rate not less than the rate specified in such notice.
The concept of free transferability would mean that a shareholder has the freedom to transfer his shares on terms defined by him, provided the terms are consistent with the Articles of Association as well as the Companies Act and Rules and other governing laws. The fact that the shares of a public company can be subscribed to by the public, unlike in the case of a private company, does not in any way whittle down the right of a shareholder of a public company to arrive at a consensual agreement/arrangement (either by way of sale, pledge, pre-emption etc.) with a third party or another shareholder, which is otherwise in conformity with the Articles of Association, the Companies Act and Rules, and any other governing laws.
Whilst taking this view, we are supported by a judgment of the Division Bench of this Court in the case of Messer Holdings Ltd. [2010 (9) TMI 213 - HIGH COURT OF BOMBAY]
If the parties are free to enter into a consensual arrangement which does not infract free transferability as contemplated under section 111A, we see no reason to hold that merely because the price of the shares is to be determined by the process of arbitration, the same would to be in violation of section 111A. The fact that the price of the shares is to be determined by the process of arbitration is also a term of the very same consensual arrangement which is not violative of the provisions of section 111A(2). We, therefore, find no substance in this argument.
Notwithstanding the fact that the Protocol Agreement was incorporated in the Articles of Association of MSL, the same would not change the nature of that agreement namely being a consensual agreement/arrangement entered into between the parties determining the manner in which each party is allowed to dispose of its particular shareholding. At the highest and assuming everything in favour of the Respondent, it could be only be held that such a clause would not bind the company. However, it would certainly bind the parties to the Protocol Agreement. We, therefore, find no substance in this argument.
Merely because Clause 7 of the Protocol Agreement was incorporated in the Articles of MSL, would not invalidate the same. We are also persuaded to take this view because we find that in today's global reality, joint ventures are extremely common and clauses similar to Clause 7 of the Protocol Agreement may become necessary to ensure that a joint promoter of a company does not sell his shareholding to a competitor who then possibly could get control of his rival. In this view of the matter and looking to the totality of the facts and circumstances of the case, we are clearly of the view that Clause 7 of the Protocol Agreement does not in any way impinge upon the principle of free transferability of shares as contemplated under section 111A of the Companies Act, 1956.
Thus the order of the learned Single Judge is unsustainable, insofar as it set aside the impugned award on the ground that the effect of Clause 7 of the Protocol Agreement was to impose a restriction on the free transferability of shares as contemplated under section 111A of the Companies Act
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2015 (5) TMI 1133
Scheme of Amalgamation - dispensation of the meeting of Equity shareholders and creditors for sanctioning of the Scheme - Held that:- Prayer for dispensation of their meeting is accepted. Since, there is no Secured Creditor of the Petitioner Company/Transferee Company no meeting is required. However, to obtain consents to the Scheme of Amalgamation, deem it appropriate to issue direction to hold the meeting of the Unsecured Creditors who falls in category B & C of the Annexure P-13.
The meeting shall be conducted strictly in accordance with law and after due notification/notice to all concerned including public in the "Indian Express (English)" & "Jansatta (Hindi)" both Delhi/NCR Edition and also in the Official Gazette of Government of Haryana and the same shall be published at least 21 days before the date of proposed meeting. Individual notice be sent to the Un-Secured Creditor of the Petitioner Company through Ordinary Post/Speed Post/ Registered Post.
The Scheme be put up in the meeting of the Un-Secured Creditors/Petitioner Transferee Company shall be approved/decided by minimum 75% in value and majority in number of the Unsecured Creditors present and voting either in person or through proxy.
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2015 (5) TMI 1132
Scheme of Amalgamation - Transferor Company seeks dispensation of the meetings of its Equity Shareholders, Secured and Unsecured Creditors and the Petitioner Company No.2- Transferee Company seeks dispensation of the meeting of Secured and Usecured Creditors - Held that:- Convening of meetings of the Equity Shareholders, Secured and Unsecured Creditors of the Transferor Company and Secured Creditors of the Transferee Company are ordered to be dispensed with. As no consents of the Equity Shareholders & Unsecured Creditors of the Transferee Company has been obtained and in order to seek their approval to the Scheme of Amalgamation, it is hereby ordered that meetings of the Equity shareholders and Unsecured Creditors of the Transferee Company as scheduled.
The meetings shall be conducted in accordance with law and after due notice to all concerned inlcuding public in the newspapers namely “Financial Express” (English) and “Jansatta” (Hindi) both Delhi/ NCR Edition and in the official Gazette of Government of Haryana.
Notice of the meetings shall be published at least 21 days before the date of the proposed meetings.
On the basis of prayer made by learned counsel for the petitioner, permission is granted to publish a common notice for both the aforesaid meetings. Individual notice be also sent to the Equity Shareholders and Unsecured Creditors of the Petitioner- Transferee Company by ordinary post.
The prayer of the Transferee Company to comply with provisions of Clause 5.16 of the SEBI Circular referred above is accepted.
The Scheme be put up in the meetings of the Equiry Shareholders and Unsecured Creditors, shall be approved/decided by minimum 75% in value and majority in number of the Equity shareholders and Unsecured Creditors present and voting either in person or thorugh proxy.
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2015 (5) TMI 1131
Issues involved:
Challenge to notices dated 9th May, 2012 based on previous orders and challenges to those orders.
Analysis:
The petitioner sought to quash four notices dated 9th May, 2012 issued to various parties, claiming they were based on a show cause notice from July 2011. The show cause notice was adjudicated by the Additional Commissioner, leading to subsequent challenges and orders. The Commissioner (Appeals) initially demanded a significant amount, later reduced by CESTAT to &8377; 8.36 lakhs. The matter was then remanded for fresh decision. A subsequent order by the Additional Commissioner reduced the liability to &8377; 16,24,671, which the petitioner had already paid. The respondents argued that the order from October 2014 was challenged, and thus, the May 2012 notices should not be quashed.
The High Court considered the sequence of events, noting that the original show cause notice demanded &8377; 49,90,780. The subsequent orders by the Commissioner (Appeals) and CESTAT led to a reduced liability of &8377; 16,24,671. The court found that the May 2012 notices were based on now-quashed orders and, therefore, unsustainable. Despite challenges to the October 2014 order, the court held that the purpose of the May 2012 notices was no longer valid. Consequently, the court allowed the writ petition, quashing the May 2012 notices and allowing the respondents to issue a fresh notice for tax recovery.
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2015 (5) TMI 1130
Scheme of Amalgamation - Since, all the shareholders and Unsecured Creditors have given their consent, therefore, the holding of the meetings of the aforementioned shareholders and unsecured creditors of the petitioner No.1/5th Transferor Company and petitioner No.2/6th Transferor Company are, hereby, dispensed with.
Since there is no secured creditors of both the companies aforementioned, no meeting of the secured creditors is thus required.
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2015 (5) TMI 1129
TPA - selection criteria for comparable - Held that:- ITES rendered by the Assessee include customer services, stores help desk, Financial services, one stop processes, pension service, property services and online advertising services. IT services include software development, quality deployment, testing and support services, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Computing deduction u/s.10A - exclusion of telecommunication charges and insurance expenses of and expenses incurred in foreign current from the export turnover - Held that:- Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges and insurance charges incurred be excluded both from export turnover and total turnover, as has been prayed for by the assessee in the alternative.
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2015 (5) TMI 1128
CENVAT credit - input services - Overseas Commission Agent - post removal services - decision in the case of COMMISSIONER OF CENTRAL EXCISE, LUDHIANA Versus AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT], contested - Held that: - The matter is covered against the appellant by the judgment of the Division Bench of this Court dated 20-7-2011 in the case of Commissioner of Central Excise, Ludhiana v. Ambika Overseas [2010 (9) TMI 240 - CESTAT, NEW DELHI] - Counsel for the appellant stated that the revenue did not challenge that judgment as low revenue was involved - appeal dismissed - decided against Revenue.
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2015 (5) TMI 1127
CENVAT credit - returned defective goods - Rule 16 (1) of Central Excise Rules 2002 - Held that: - upon receipt of the goods, the same have been duly reflected/ entered in the Daily Stock Account i.e. RG-1 Register maintained by the appellant. The entries have been made in the said register on the basis of the original invoices, in the cover of which the goods were initially removed from the factory - it is erroneous to assume that the goods were not identifiable and relatable to the duty paid documents and also it is not proper to conclude that no records have been maintained for return of defective goods.
CENVAT credit taken by the appellant on such duty paid defective goods received in the factory for carrying out the processes under Rule 16(1) of the rules are eligible for cenvat credit - appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1126
Maintainability of appeal - pre-deposit - Held that: - Registry has issued a defect memo indicating that appellant has not paid the mandated payment of 7.5% of the Customs duty to hear and dispose the appeal - Appellant was granted 8 weeks time on 23/2/2015 to make compliance, which remains uncomplied - appeal dismissed being not maintainable.
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2015 (5) TMI 1125
Determining the capital gain derived from the sale of land - interest on borrowed funds used for acquiring shares capitalization - whether the interest paid by the assessee on loans taken for acquiring the shares in the past can be allowed as a deduction u/s 48 as cost of acquisition while computing capital gain on sale of such shares? - Held that:- Notably, it is not disputed by the Revenue that the interest costs in question were incurred on the funds utilized for acquisition of shares in the past. In fact, as per the Statement of Facts filed before the CIT(A), the assessee had tabulated the amount of interest capitalized along with the cost of shares, which were purchased in the past. The assessee had also asserted before the CIT(A) without rebuttal, that the interest cost so incurred in the past was not claimed as a deduction against any other income. Be that as it may, in so far as the factual position is concerned, there is no denial by the Revenue that monies borrowed have been utilized for acquisition of shares in question.
Therefore, having regard to the factual findings of the CIT(A), in our view, the legal position as propounded by the Hon’ble Madras High Court in the case of Trishul Investments Ltd (2007 (7) TMI 252 - MADRAS HIGH COURT ) supports the plea of the assessee that interest paid for acquisition of the shares would partake the character of cost of shares and, therefore, assessee had rightly capitalized the interest along with the cost of acquisition for the purpose of computing capital gains. The conclusion of the CIT(A) thus deserves to be affirmed. Appeal of the Revenue is dismissed.
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