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Showing 121 to 140 of 2152 Records
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2018 (9) TMI 2036
Application for reduction of share capital - Section 66 (1) of the Companies Act, 2013 - HELD THAT:- The scheme of reduction of capital has been examined and it has been decided not to make any objection to the scheme and it is therefore prayed that this Tribunal may dispose of the application on merits and pass such order/orders as deemed fit and proper.
In this case as per the provisions of the Companies Act, 2013, notices were issued to the statutory authorities as per the procedure prescribed. However, there was no objection to the Reduction of Share Capital under reference.
The Application is allowed for reduction of the share capital of the Company.
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2018 (9) TMI 2035
Reopening of assessment u/s 147 - assessment was reopened which is based on new facts and information came to the knowledge of the Assessing Officer on the basis of the report of DIT(Inv.) as well as statement recorded by the Investigation Wing of one Shri Vijay -bogus share application money/ bogus unsecured loan/ bogus sale and purchase - HELD THAT:- In the case in hand, AO has duly examined the purchases made by the assessee and also observed that some of the purchases are not verifiable and accordingly made the addition being trading addition while passing the order U/s 143(3) of the Act - reopening after four years is not permitted just to review the earlier order passed by the Assessing Officer U/s 143(3) of the Act based on the information received from the Investigation Wing on the same issue, which was subject matter of enquiry and investigation by the Assessing Officer while passing the order U/s 143(3) of the Act.
Even otherwise the reasons recorded by the Assessing Officer are very vague which suggests that the Assessing Officer has not applied his mind and just recorded the reasons as borrowed from the report of the Investigation Wing without specifying the nature of transaction whereas the assessee had only one transaction of purchase from the said party namely M/s Kothari Impex - we hold that the reopening is not valid and the same is liable to be quashed. Accordingly, the Assessing Officer has framed reassessment without jurisdiction and therefore, the reassessment order is not valid and the same is set aside. - Decided in favour of assessee.
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2018 (9) TMI 2034
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - pendency of proceedings against the corporate debtor before different forum - HELD THAT:- It is well settled that pendency of proceedings against the corporate debtor cannot be an impediment or bar to initiate Corporate Insolvency Resolution Process against the Corporate Debtor under the provisions of Section 7 of the Code. There has been no court injunction restraining the applicant bank to initiate action under the provisions of the Code. Simply pendency of proceedings cannot be a ground to deny admission of an application under Section 7 of the Code, once the application is complete and there has been commission of default - Insolvency and Bankruptcy Code, 2016 being a complete Code and subsequent Union Law, will prevail over other later laws like the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Money Laundering Act and SARFESI Act, 2002. As per Section 238, the provisions of the Code are to be given effect to notwithstanding anything contrary contained in any other later laws or any instrument having effect under such law.
Thus, the objection in this regard will not sustain as initiation and pendency of proceedings in different forums is no bar for initiation of Corporate Insolvency Resolution Process under Section 7 of the Code in view of the overriding effect given to the provisions of Section 238 of the Code.
It is pertinent to note that in financial transactions, adjustments and compromise are to be left to the parties to settle the matter in their best interest or exigencies of the business. However, in the absence of any binding compromise agreement/ debt restructuring approval, it is beyond the powers of the adjudicating authority to extend time indefinitely or to defer the prayer of applicant financial creditor for admission of the petition filed under Section 7 of the Code - The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application. As per Section 7 (1) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors.
It is seen that the applicant has placed various documents in relation to the disbursement of the loan to the respondent company. The materials on record and the loan documents clearly depict that that the loan was sanctioned and the loan agreements were properly executed. Respondent company utilised and enjoyed the loan facility. The applicant bank has filed various documents pertaining to creation of charge over the assets of the respondent company in respect of various loans taken from consortium banks - the applicant 'financial creditor' has placed on record voluminous and overwhelming evidence in support of the claim as well as to prove the default.
In the case on hand, it is seen that respondent corporate debtor has committed default in repayment of the outstanding financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. Accordingly, it is seen that the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP - the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt.
Application admitted - moratorium declared.
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2018 (9) TMI 2033
Lack of territorial jurisdiction - HELD THAT:- Considering the fact that the issue pertains to action taken by the Registrar of Companies, Kanpur and under identical situation with regard to action taken by Registrar of Companies, Mumbai on account of lack of territorial jurisdiction, we had refused to interfere into the matter earlier.
Petition dismissed.
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2018 (9) TMI 2032
Lack of Territorial Jurisdiction - HELD THAT:- Considering the fact that the issue pertains to action taken by the Registrar of Companies, Kanpur and under identical situation with regard to action taken by Registrar of Companies, Mumbai on account of lack of territorial jurisdiction, we had refused to interfere into the matter earlier.
Petition dismissed.
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2018 (9) TMI 2031
Issuance of warrant against Mr Hinduja - HELD THAT:- Ms Joshi are given leave to amend the Execution Application and also if necessary the Chamber Summons, without need of reverification, to join as Respondents the director/s of the 3rd Respondent, which is a corporate guarantor, and the other director/s of Respondent No. 1 in their capacity as directors. Ms Joshi states that necessary amendment will be carried out within two weeks from today.
List the matter on 24th September 2018.
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2018 (9) TMI 2030
Dishonor of Cheque - limitation for filing of complaint - cheque not signed by applicant - allegation against the applicants that they were looking after and responsible for day today affairs of the company or not - whether present applicants have already resigned from the post of directors before issuance of the cheques or its presentation in the concerned bank? - HELD THAT:- When the complaint was presented before the trial court, it was returned to the complainant for its presentation in the proper court as per the law laid down by the Hon'ble Supreme Court in case of Dashrat Rathod Vs. State of Maharashtra [2014 (8) TMI 417 - SUPREME COURT]. Thus from the record, it appears that in view of the law laid down by the Apex Court, in the aforesaid case, the complaint was returned to the complainant for presentation to the proper Court. Further record shows that the complaint was then presented before the Court at Coimbatore again due to the change in law. It was returned to the complainant for presentation in the proper Court and therefore, for a second time the complaint was presented before the Judicial Magistrate First Class at Gangapur. Hence, there was no fault on the part of all complainant. The return of the complaint by two Courts was due to change in the law from time to time, in such situation, it cannot be said that the complaint is not before limitation.
It is duty of the Magistrate before summoning the accused under Section 138 of the Negotiable Instruments Act, Magistrate is expected to examine the nature of the allegations made in the complaint and the evidence both orally and documentary in support thereof and than to proceed further with proper application of mind to the legal principles on the issue. It is necessary for the courts to ensure strict compliance to the statutory requirement as well as settle principles of law before making a person vicariously liable, therefore, simply because a person is a director of a defaulter company does not make him liable under the Act for the offence committed by the company under Section 141 of the Negotiable Instrument's Act. There must be specific averments against direct showing as to how and in what manner the directors was responsible for the conduct and business of the company.
The present applicants have already resigned from the posts of directors. Secondly there are no specific and sufficient allegation against the applicants that they were looking after and responsible for day today affairs of the company. Thus application is allowed and the relief is granted in terms of prayer clause B.
Application disposed off.
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2018 (9) TMI 2029
TP Adjustment - comparable selection - Motilal Oswal Private Equity Advisors Pvt. Limited - HELD THAT:- As the financial statements that the only business income, besides interest and sundry income, derived by it was by way of “investment management fees” only. In the director’s report also, the details of funds collected by it for making investments are mentioned. Both these aspects make it clear that M/s Motilal Oswal Private Equity Advisors P Ltd is engaged only in investment activities for its clients in relevant year also. Hence the Coordinate Benches, in the case of Temasek Holdings Advisors India Pvt. Ltd. [2017 (8) TMI 1490 - ITAT MUMBAI] and Wells Fargo Real Estate Advisors Pvt. Ltd. [2018 (1) TMI 931 - ITAT MUMBAI] have held that the above said company cannot be considered to be a comparable for an investment advisory company. Following the above said decisions, we hold that M/s Motilal Oswal Private Equity Advisors Pvt. Limited cannot be taken as comparable in the hands of the assessee company.
IDC (India) Limited company was considered by the co-ordinate bench in the case of Temasec Holdings Advisors (I) P Ltd , [2017 (8) TMI 1490 - ITAT MUMBAI]and it has been held to be a good comparable, as M/s IDC (India) Limited was also engaged in advisory and consultancy and services.
M/s ICRA online Ltd is also mostly engaged in investment advisor services only. Accordingly it was held that it is good comparable for comparability analysis purposes. Following the order passed by the Tribunal, we direct the Assessing Officer to include M/s ICRA online Ltd as comparable company.
Appeal filed by the assessee with regard to above said three comparables is allowed.
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2018 (9) TMI 2028
Approval of Resolution Plan - Section 31 (1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The resolution plan submitted by the Resolution Applicant Ingen Capital which was recommended by the CoC pursuant to the meeting held on 04.06.2018 and voting concluded on 21.06.2018 stands approved - The Resolution professional in consultation with COC will ensure that the Resolution Plan complies with section 30(2)(e) of the IBC, 2016 especially regarding compliance with FDI norms and provisions of FEMA and the regulations made there under.
The Resolution applicants are directed to adhere to the provisions of Section 53 of the IBC 2016 duly following the procedure for "water fall" in relation to the amounts brought in by the Resolution Applicants - Application disposed off.
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2018 (9) TMI 2027
Correction of mistake in GST Registration certificate - permission to petitioner to file its returns as per provision of Uttarakhand GST Act, 2017 and also permit the petitioner to submit FORM GST TRAN-01, through common portal - HELD THAT:- List this case on 10.10.2018 in the daily cause list.
The prayer of the petitioner that as interim orders have been passed by other Hon’ble High Courts in such matters, such an interim relief should also be granted in the present case as well. The respondents shall state in their counter affidavit whether they can provisionally entertain the GST TRAN-1 and other returns of the petitioner by way of opening portal or manually so that returns be filed meanwhile by the petitioner.
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2018 (9) TMI 2026
Maintainability of appeal - challenged on the ground of time limitation - Confiscation of goods - misdeclaration - undervaluation - actual owner of goods - HELD THAT:- The appeals are dismissed on the ground of delay, leaving the question of law open.
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2018 (9) TMI 2025
Receipt of compensation of compensation under the Abolition Act and H.P. Ceiling on Land Holdings Act, 1972 - whether after the abolition of Jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the late Jagirdar or his legal representatives could have claimed the compensation on the land acquisition being made particularly when land has vested in the State of Himachal Pradesh, the land was not under the personal cultivation, and particularly when they have received the compensation under the Abolition Act, apart from that had also received the compensation under the provisions of H.P. Ceiling on Land Holdings Act, 1972?
Whether land has vested in State under the Abolition Act, and effect of acceptance of compensation under the said Act? - HELD THAT:- The intent of the Abolition Act is that the agrarian reforms by Abolition of Big Landed Estates have to be given the full effect. Once land has vested in the State, it was not open to Rajinder Singh on the basis of continuation of wrong entries in revenue records, to claim any right, title or interest much less compensation under the Ceiling Act as well as under the provisions of the LA Act. Thus, the entire land on the condition being satisfied with the landed holdings of a landowner the annual land revenue of which is ₹ 125 or more, land vested in the State and not excess part over and above the land to which the said land revenue is ascribed, with the saving of personally cultivated land.
Effect of the proceedings under the Ceiling Act? - HELD THAT:- The fact is conclusively established that land in question had been declared as surplus and compensation under the Ceiling Act had also been received, even though the land had already vested in the State under the Abolition Act. Once the disputed land had been admittedly declared surplus in Ceiling Act vide order dated 30.6.1980, there was no question of payment of compensation to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raised in the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his L.Rs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into - once land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case.
Effect of withdrawal of Civil Suit No. 15/1970 in appeal - HELD THAT:- The Respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wholly impermissible and illegal and tantamount to scam committed by fraudsters. The cases were withdrawn one after the other just to perpetuate the fraud on the legal system by raising the inconsistent pleas and taking unfair and undue advantage of the wrong continuation of entries in the revenue papers.
Whether the question of right, title or interest of Late Rajinder Singh or his successors to obtain compensation can be considered in the proceedings Under Sections 18 and 30 of the LA Act? Particularly, on the basis of the principle "fraud vitiates"? - HELD THAT:- The question in the instant case is as to whether an incumbent can be permitted to play blatant fraud time and again and court has to be silent spectator under the guise of label of the various legal proceedings at different stages by taking different untenable stands whether compensation can be claimed several times as done in the instant case and its effect. Before the land acquisition had been commenced in 1987, the land more than 1000 bighas had been declared a surplus in ceiling case and compensation collected, which indeed disputed land at Jhakari, it would be a perpetuating fraud in case such a person is permitted to claim compensation for same very land. Fraud vitiates the solemn proceedings; such plea can be set up even in collateral proceedings. The label on the petition is not much material and this Court has already permitted the plea of fraud to be raised. Moreover, Appeal arising out of 72 awards is still pending in the High Court in which Reference Court has declined compensation on the aforesaid ground.
In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings Under Section 18/30 of the LA Act.
Whether the Respondents who are claiming on the basis of patta/transfer made by Rajinder Singh, are bona fide transferees and entitled to compensation? - HELD THAT:- In case regular first appeal is pending in the High Court as against the order of reference court against the Respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not propose to give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way.
The compensation that has been withdrawn by Late Rajinder Singh or his L.Rs. in the case of land acquisition, in original proceedings or Under Section 28-A shall be refunded along with interest at the rate of 12 percent per annum within 3 months from today to the Appellants/State - Appeal allowed.
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2018 (9) TMI 2024
Completion and commissioning of the project including commissioning of the 3(three) Power Generating Units - It is the contention of the petitioners that since the project was commissioned in July, 1996, the defect liability period for M/s SPML in the project expired after 18(eighteen) months i.e., in January, 1998 as per terms of the contract and after expiry of the said defect liability period. i.e., the warranty period - HELD THAT:- In the instant petition, it is noticed that the charge-sheet is submitted against the accused persons namely, 1. Sri S. K. Sethi, Managing Director, M/s SPML, Kolkata 2. Sri Anil Sethi, Director, M/s SPML, Kokata, 3. Sri Pulok Deb, the then Chief Engineer(Power), Itanagar, 4. Sri Tomi Ete, the then Superintending Engineer (Civil), Itanagar, 5. Sri K. Kumaravel, Director of M/s Beacon Neyrpic, Chennai, 6. Sri S. R. Krishnan, Director of M/s Kartik Steels, Chennai and 7. Dr. J.D. Sharma, Director AHEC, Roorke, Uttaranchal. The aforesaid list of the accused persons mentioned in the charge-sheet shows that not only the persons connected to the affairs of the M/s SPML Infra ltd., but other connected company executives and engineers of the Govt. of Arunachal Pradesh are roped into the alleged act of criminal conspiracy amongst themselves in the supply of sub-standard runner turbines and receiving the substandard runner turbines which were not in conformity with the specified standard as it has come to light, after thorough investigation into the FIR. Therefore, it is not the case concerning the petitioners or their company namely, M/s SPML Infra ltd. only, but the other responsible persons concerned thereto, for which it is not factually possible to segregate only the petitioners’ case.
This Court is of the considered opinion that it is pre-mature at the present stage of the case to say conclusively as to whether there was any fraudulent, dishonest and deceitful intention or act on the part of the petitioners acting on behalf of the company M/s SMPL Infra ltd., within the meaning of Sections 415/418/420 of the IPC in the backdrop of facts alleged, where departmental engineers and turbine manufacturing company were also allegedly involved in criminal conspiracy for wrongful gain and thereby causing wrongful loss to the Govt. of Arunachal Pradesh and further, when contractual disputes are still subject of adjudication in two arbitral proceedings. When the allegations of criminal conspiracy and cheating are made against the petitioners in their individual capacity, although they are officials of M/s SMPL Infra ltd., at the present stage of the proceeding, this Court is restrained from considering their defence version.
Petition dismissed.
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2018 (9) TMI 2023
Validity of Bail granted - participation in Conspiracy to murder the deceased - powerful person who can possibly tamper the evidence - offences punishable Under Sections 302 and 120B of the Indian Penal Code, read with Sections 25(1)(B) and 27 of the Arms Act, as also Under Sections 3 and 4 of the Explosive Substances Act - HELD THAT:- The High Court proceeded to grant bail to the Respondent on the ground that there is no prima facie material against the Respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration; the material on record does not indicate any motive on the part of the Respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the Respondent at this stage, inasmuch as they are admissible only to the extent that they lead to recoveries Under Section 27 of the Indian Evidence Act.
Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the Respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the Respondent had given death threats to the deceased - A recovery of weapon has been made pursuant to the statement made by the co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the Respondent has been acquitted. Since the Respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the Respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses.
Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the Respondent's absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community.
The impugned judgment of the High Court granting an order of bail in favour of the Respondent herein is liable to be set aside - Respondent Mahimananda Mishra, S/o Late Rabindranath Mishra, R/o Odia Bazar, P.S. Dargha Bazar, District Cuttack (Orissa), be taken into custody forthwith - Appeal allowed - decided in favor of Revenue.
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2018 (9) TMI 2022
Reopening of assessment u/s 147 - AO proceeded to initiate reassessment proceeding on the main premise and allegation and that the assessee has not filed return of income for AY 2007-08 - HELD THAT:- As from the copy of return and in absence of any other adverse material or evidence, we are satisfied that the assessee filed return of income for AY 2007-08 and the AO proceeded to initiate reassessment proceeding on the wrong premise that the assessee had never filed return of income for the relevant period.
Respectfully following ratio of the decision of Hon’ble Jurisdictional High Court in the case of Sunrise Education Trust [2018 (2) TMI 1471 - GUJARAT HIGH COURT] we hold that the entire reasoning recorded by the AO for initiation of reassessment proceedings and issuance of notice u/s. 148 of the Act was on the wrong premise that the assessee had never filed the return and in fact, it was filed. Therefore, we are inclined to hold that the initiation of reassessment proceedings u/s. 147 of the Act and notice u/s. 148 of the Act and all subsequent proceedings and orders have been issued, conducted and passed without having valid jurisdiction therefore, the same are bad in law and hence, we quash the same. - Decided in favour of assessee.
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2018 (9) TMI 2021
Admit following substantial questions of law are framed.
“Whether the Income Tax Appellate Tribunal was right in holding that the interest income on special funds where the same has been taxed in the hands of the Society should not be taxed in the hands of the respondent-assessee?
“Whether the Income Tax Appellate Tribunal was right in deleting addition made by the Assessing Officer by applying Rule 8D(2)(ii) of the Income Tax Rules, 1962?”
No substantial question of law on the third aspect which relates to the provisions for retirement benefit of employees in view of the findings of the Commissioner of Income Tax (Appeals) which has been affirmed by the Income Tax Appellate Tribunal that the said provisions were based on acturial valuation and in accordance with AS15.
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2018 (9) TMI 2020
Revision u/s 263 - PCIT was not convinced with the above explanation of the assessee and referring to Computation of FMV as per the assessee, FMV as on 31.03.2012 of Omega Properties Pvt. Ltd. and Dakshina Properties Pvt. Ltd. and computation of FMV of shares as done by the DCIT-4(1)(1), Mumbai, found that there was considerable variation in valuation of shares as done by the AO as per the proposal and as submitted by the assessee in the course of proceedings before him. The assessment order passed does not reveal that a detailed examination of acquisition of assets and applicability of section 56(viia) and Rule 11UA was undertaken in acquisition of shares of Suprasad Investments & Trading Co. Pvt. Ltd. - HELD THAT:- We find that the assessee had not acquired any shares in Geetanjali Trading & Investment Pvt. Ltd. during the impugned assessment year and therefore, the question of furnishing details of the said shares does not arise. It is stated in Note No. 8(3) of the Balance Sheet that “during the period following investments of Asian Paints Ltd. have been transferred from the holding company at cost”. The assessee had received 52,86,062 equity shares of Asian Paints Ltd. from its holding company i.e. Geetanjali Trading & Investment Pvt. Ltd. and since the said holding company holds 100% shares of the assessee-company, the said transfer is exempt u/s 47(iv) of the Act. Further, section 56(2)(viia) does not apply to shares of a quoted company (Asian Paints Ltd.) received by the assessee. Therefore, the question of valuation of these shares at market price does not arise.
We find that the assessee had submitted computation of value per share under Rule 11UA of M/s Suprasad Investment & Trading Co. Pvt. Ltd. along with balance sheet as on 31.03.2012 vide letter dated 28.01.2016. It is evident from the official seal dated 28.01.2016 of the office of Asstt./Dy. CIT-8(2)(1) Mumbai, indicating the receipt.
Rule 11UA as in force in AY 2013-14 does not provide to replace fair value of quoted shares to book value and therefore, the value derived by the DCIT 4(1)(1) cannot be substituted to the value as derived under Rule 11UA.
Rule 11UA, during the relevant period, provides for valuation of unquoted equity shares by adopting the amount as per ‘book value’.
In Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME COURT], the Hon’ble Supreme Court has held that the Commissioner has to be satisfied with the twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the revenue. If one of the conditions is absent-if the order of the AO is erroneous but is not prejudicial to the revenue or if it is not erroneous but is prejudicial to the revenue-recourse cannot be held to section 263(1) of the Act.
The factual scenario depicted hereinabove is to be examined on the anvil of the above enunciation of law. As stated earlier, Rule UA as in force in the impugned assessment year, does not provide and require to replace fair value of quoted shares to book value and therefore, the value derived by the DCIT-4(1)(1) cannot be substituted to the value as derived under Rule 11UA.
Rule 11UA provides for valuation of unquoted equity shares by adopting the amount as per ‘book value’.
In view of the above reasons, we set aside the order u/s 263 passed by the PCIT. - Decided in favour of assessee.
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2018 (9) TMI 2019
Permission for withdrawal of application - Rejection of proposal of deemed extension of Mining Lease - HELD THAT:- The petition is disposed of as withdrawn with liberty to the petitioner to take recourse to appropriate remedies in accordance with law.
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2018 (9) TMI 2018
Settlement Commission Order -The High Court, by a court order, has stated that since the petitioner approached the Settlement Commission, nothing further remains to be decided - HELD THAT:- We disagree.
According to the petitioner, jurisdictional questions are being raised by him in the writ petition, which, therefore, needs to be disposed of on merits. It will be open to the respondents to take all pleas available in law including the fact that no jurisdictional question arises.
The stay, that has been granted to the Settlement Commission’s proceedings, will continue till the High Court dispose of the writ petition.
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2018 (9) TMI 2017
Oppression and mismanagement - Seeking to appoint an independent auditor to audit the accounts of the Company from the date of incorporation till date - seeking to direct the Respondent No. I to convene and hold a board meeting to consider the passing of the accounts so audited - seeking to grant injunction restraining the Respondent No. 2 from making transfer of funds except with the consent of the Petitioners and other board members - seeking to restore the rightful position and the authority of the Petitioners to direct and control the operations of the Respondent No. I company - seeking to investigate and assess the sums of money of Respondent No. I Company misappropriated by any person and direct person guilty of such misappropriation to restore the funds to the Respondent No. I company - seeking to direct the 1 st Respondent Company to pay the salary of the petitioners promptly each month.
HELD THAT:- It is a fact that the petitioners shareholders. wanted funds for the development of the company for which purpose roped the R2 into the company and while doing so both the parties have entered into the SPA and SSSA. Further the SSSA is also incorporated in the AOA - It is also a fact that the R I and R2 herein are the promoter directors and they are still continuing as directors of the Company. They are very much aware that SPA and SSSA contains clause with regard to appointment of other directors by the investor and it is also a fact that what binds on the Company would also binds its board of directors and shareholders. Clause 9 of SSSA and Clause 7.1 of amended AOA deal with use of money, borrowings and funding and clause 10.17 and clause 8.18 of the amended AOA deal with decision of the board. The clause 10.20 of the SSSA deals with the undertaking given by the petitioners. It is also a fact that the company convened all the board meetings and general meetings and the petitioners are party to the decisions taken in such meetings. The petitioners have not made any allegations that the Company has not convened any meetings. It is also an admitted fact that the Clause 19.4 and 19.5 of SSSA and Clause 17.4 and 17.5 of the amended AOA deal with the provisions of infusing funds and it also bars the RI and R2 (the main petitioners in CP) to obstruct or create any impediment to such further subscription by the investor.
The petitioners in the main petition sought for appointment of an auditor to audit the accounts of the Company from its incorporation, direct the respondents to convene the board meeting to consider the passing Of the accounts so audited, grant injunction restraining the R2 from making transfer of funds except with the consent of the petitioners and other board members and restore the rightful position and authority of the petitioner to the direct control of the operations of the applicant company. It is a fact that the board meetings and general meetings have been convened by the Company as per the provisions of the Act and the petitioners are party to all such decisions taken in the said meetings. The infusing of funds and allotment of shares are also covered in the SSSA. The other directors who are not party to the agreement are not third parties and they are the directors appointed by the investor (R2 in the main petition) as per the clause of SSSA. Being aware about the consequences of the SPA and SSSA and, the petitioners having entered into such SPA and SSSA, it is not proper for them to make allegations against R2 in the main petition.
It is clear that the dispute between the parties arises only out of SPA and SSSA and, therefore, in the circumstances it is felt that the issues raised have to be referred to Arbitration in terms of the Arbitration Clause contained in the said agreements. Regarding the managerial decisions which can be raised in a Petition under Section 241/242 of the Act, it is held that the Petitioners were a party to all the decisions and cannot raise the issues by way of a Petition under Section 241/242 of the Companies Act, 2013.
Application allowed.
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9911796707
