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Showing 141 to 160 of 1719 Records
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2020 (1) TMI 1583
Non-disclosure of contribution made to the political parties during the year 2016-2017, in the declaration given by the Company - Section 182(3) of the Companies Act, 2013 - HELD THAT:- On close reading of Section 135 of the Act, it makes very clear that the CSR declaration has to be made as stated therein, in a prescribed form. During the course of argument, the learned counsel for the petitioners brought to the notice of this Court that the declaration has been made in a prescribed form disclosing that an amount of Rs.1,36,39,924/- has been declared as CSR amount.
By considering the material facts and circumstances, it indicates that though under the law, the declaration has to be made separately but as rightly pointed out by the learned counsel for the respondents in the reply also, it has been specifically mentioned that in the financial statement, the company has inadvertently missed the separate disclosure as per Section 182(3) of the Act. But on factual matrix, if it is taken into consideration, the said amount of Rs.15,00,000/- has been paid to Aam Adami party through cheque that too, account payee for which, the declaration has also been made - Taking into consideration of the object and spirit of law, it indicates that the main object of law is that such donations, which are going to be given in larger quantity, it will not affect the economy of the country and thereafter the amendment, which has been made also disclose the fact that the payment has to be made through cheque. In the light of letter and spirit, if it is taken into account, it is only an irregularity not an illegality. Even the amendment was given effect from 01.04.2017 therein, it is not necessary to declare the name of political party to which the amount has been paid. In that light also, there is no intentional violation of Section 182 of the Act. However, the petitioners/accused being a reputed company, they should have taken care of the said aspect while making a declaration but it is not an intentional act.
Whenever the accused has to be punished for any offence, then the intention and mens rea has to be seen. In that light, the initiation of the proceedings is not present as contemplated under law and the said proceedings if they are quashed by allowing the petition, it is going to meet the ends of justice.
Petition allowed.
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2020 (1) TMI 1582
Maintainability of petition - Dishonor of Cheque - pre-condition as contained under Section 138 N.I. Act as regards service of notice, has remained uncomplied - HELD THAT:- There are two material aspects coming out from the pleadings very clearly: one that notice dated 16.07.2018 infact was sent by registered post and, therefore, it cannot be said that notice was sent on itself, and second, it clearly comes out from the record that there is no whisper regarding effective service of notice at the end of the complainant in the complaint. The complainant has not mentioned as to when he received back envelop containing notice and whether after receiving envelop back he had made complaint or prior to that. Accordingly even if he made complaint after accepting of the notice from the post office with note 'left', he could have filed such complaint only after expiry of 15 days but it is not the case here.
Secondly if he considers that service of notice was effected then in all probability complaint should have been filed only after expiry of 15 days, and the date of service would have been clearly mentioned in the complaint. In the absence of any such mention in complaint itself, no inference of effective service and requirement of 15 days prior notice can be presumed to have been complied with.
The application under Section 482 Cr.P.C. stands granted and the proceedings are quashed.
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2020 (1) TMI 1581
Exemption u/s.80G - Denial of exemption as relevant documentary evidences provided - genuineness of charitable activities claimed to be carried out by the assessee Trust not proved - AR contended that once approval u/s.80G of the Act has been granted and it is not being withdrawn till date, there is no question of rejection of application u/s.80G - HELD THAT:- We find that vide order dated 28.03.2019, the Ld. CIT(Exemptions) had rejected the approval of exemption u/s.80G of the Act to the assessee for the reason that relevant documentary evidences were not filed stating the genuineness of charitable activities conducted by the assessee. However, we also find that vide order dated 30.03.2017, the assessee Trust has already got approval u/s.80G(5)(vi) of the Act from the Ld. CIT(Exemptions) which is still continuing.
This fact has not been denied by the Ld. DR nor any material contradicting to these facts were placed on record by the Revenue Authorities. Therefore, we are of the considered view, once approval of exemption u/s.80G(5)(vi) of the Act has been granted by the Department to the assessee Trust, it has not been withdrawn and it is still continuing. Therefore, the order dated 28.03.2019 is redundant in law as well as in facts. Appeal of assessee allowed.
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2020 (1) TMI 1580
Validity of assessment u/s 153A - As per HC assessment under section 153A of the Income Tax Act, 1961 can be made only on the basis of incriminating material found during a search - HELD THAT:- Petitioner, on instructions, issued by the Department of Revenue, Ministry of Finance vide F. No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this Special Leave Petition along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions.
The special leave petition and pending applications are dismissed as withdrawn, leaving question of law open.
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2020 (1) TMI 1579
Profiteering - purchase of flat - benefit of Input Tax Credit (ITC) not passed by way of commensurate reduction in the price - Input Tax Credit - clubbing of turnover of two separate projects for the purpose of calculation of profiteering - contravention of section 171 of CGST Act - HELD THAT:- It evident from the documents placed that Project 1 and Project 2 are two separate projects in as much as these relate to two distinct RERA registrations, separate approvals issued by the NOIDA Development Authority, distinct sanction plans/ maps and completely distinct construction schedules, project 1 having been launched and initiated in the pre GST period whereas construction of project 2 started only after the receipt of mandatory approval of the relevant authority on 5.11.2018 and the statutory RERA registration in December 2017 - the contention of the DGAP that the two projects are covered under the same GST registration and have a common electronic credit ledger cannot be the ground to club the two projects. It is also pertinent to mention here that the records indicate that the Respondent has apportioned the ITC of the two projects and has thus not utilized the ITC of one project for payment of GST pertaining to other project.
The DGAP is directed to investigate afresh by treating the projects separately as has been done in the previous cases which has been quoted by the Respondent by taking merits of the two projects into account so that profiteered amount can be tenably computed. The Respondent is also directed to make available all the documents/proofs/evidences desired by the DGAP.
The assessment order clearly states that the Respondent has been collecting VAT from his customers for year 2013-14 to Jun-2017 on pro-rata basis and is also depositing the same in accordance with rules. This documentary evidence being in the form of the VAT assessment order passed by the competent authority is indisputable in its own right. Hence it needs careful consideration without following the rhetorical assertion that similar cases have been decided in the identical manner for the state of Uttar Pradesh as each such case has its own distinct facts and has to be decided upon based on whether the conditions for incorporating credit of VAT paid in the pre GST period in the computation of profiteering are fulfilled or not.
This case, including the computation of profiteering in the two projects, need to be revisited by the DGAP through a thorough investigation, keeping in view the above directions of the Authority that project 1 and project 2 are two separate projects and hence the ITC/turnover of the two cannot be clubbed for the purpose of calculation of profiteering.
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2020 (1) TMI 1578
Profiteering - purchase of Flats - allegation is that Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by him by way of commensurate reduction in the price - contravention of section 171 of CGST Act - Penalty - HELD THAT:- The Respondent has indeed benefited on account of ITC to the extent of 2.67% of his turnover during the post-GST period, i.e. from July, 2017 to December, 2018 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent since he has not passed on the above benefit to his home buyers. Further he has profiteered to the extent of Rs. 1,95,86,429/-, inclusive of GST @ as applicable, on the base profiteered amount of Rs. 1,78,84,716/-. Further, it is clear to us that the Respondent has realized additional amounts of Rs. 25,282/- each from the Applicant No. 1 and 2, inclusive of GST. The Respondent has also realized an additional amount of Rs. 1,95,35,865/- (inclusive of GST as applicable) from all the home buyers other than the Applicant No. 1 and 2. The total amount of profiteering on part of the Respondent works out to be Rs. 1,95,86,429/- ( Rs. 1,95,35,865 + Rs. 25,282/- + Rs. 25,282/- ) and the same is tabulated in Annexure- 17, 18 and 19 of the Report of the DGAP dated 19.06.2019.
On perusal of Table-D of the DGAP Report dated 19.06.2019 suggests an amount of Rs. 81,82,783/- has been claimed to have been passed on by the Respondent to his home buyers on account of ITC benefit. However, it is also clear from Table-D of the DGAP Report and claim of the Respondent of having passed on the benefit of Rs. 81,82,783/-, has not been verified at any stage by the DGAP. Further, the claim made by the Respondent during the hearings held before this Authority of having passed on another tranche of benefit of ITC to his home buyers, taking the total ITC benefit passed on to Rs. 2,18,87,807/-, also needs to be verified by the DGAP. Accordingly the DGAP is directed to further verify the total amount of ITC benefit claimed to have been passed on to his home buyers by the Respondent till date, as per the provisions of Rule 133 (4) of the above Rules and submit his Report clearly mentioning the verified amount of benefit passed on by the Respondent to his home buyers and the balance amount still to be passed on to each of the home buyers within a period of two months of this Order.
Keeping in view the self-admission of the Respondent in which he has stated that he is liable to pass on the benefit of additional ITC as per the provisions of Section 171 of the Act, there is reasonable ground to believe that the Respondent is required to pass on the benefit of additional ITC to the eligible house buyers in respect of the above projects. Accordingly, the DGAP is also directed to investigate the issue of passing on the benefit of additional ITC in respect of the above three projects i.e. projects undertaken by the Respondent, in terms of Section 171 (2) of the CGST Act, 2018 read with Rule 133 (5) of the CGST Rules, 2017 and submit his Report.
Application disposed off.
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2020 (1) TMI 1577
Seeking permission to withdraw the Civil Revision Petition with liberty to avail alternative remedy before the National Company Law Appellate Tribunal (NCLAT) - HELD THAT:- Granting liberty as sought, the Civil Revision Petition is dismissed as withdrawn.
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2020 (1) TMI 1576
Jurisdiction - appellant seeks to contend that the Officer who carries out an audit should not be the Officer who passes an assessment order - HELD THAT:- In the absence of assistance from the respondent-department and taking into account the aforesaid pleas, as also the fact that in terms of the Order dated 27.09.2019, the matter is remitted back to the High Court except on the question whether the Audit Officer can also pass an assessment order or not, it is deemed appropriate to remit this issue also to the High Court.
It is stated that the matter is to be listed on 21.5.2020 in the High Court.
Appeal disposed off.
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2020 (1) TMI 1575
Assessability of interest received on compensation/enhanced compensation awarded under the Land Acquisition Act - Interest received on compensation by the assessee was under section 28 of the Land Acquisition Act, which is to be considered as part of compensation and not interest for late payments - Case of the Revenue is that the interest received by the assessee on compensation/enhanced compensation is assessable under section 56 of the Act, subject to the deduction allowable under section 57(iv) - HELD THAT:- The Hon’ble Supreme Court in its earlier decision in Ghanshyam (HUF)[2009 (7) TMI 12 - SUPREME COURT] had held that the interest received under section 28 of the Land Acquisition Act is part of compensation and the interest received under section 34 of the Land Acquisition Act is to be assessed as other interest in the hands of the recipients. The assessee before us has placed the evidence to the effect that the interest has been received under section 28 of the Land Acquisition Act. The Hon’ble Supreme Court had laid down that the ratio in Ghanshyam (HUF) case is to be applied in order to ascertain whether the interest received by the assessee under the said provision amounts to compensation or not. In view thereof, we direct the Assessing Officer to verify the claim of the assessee that interest had been received under section 28 of the Land Acquisition Act and if that be so, then the same has to be treated as compensation in the hands of the assessee and is not taxable as interest under section 56 of the Act. Accordingly, ground of appeal raised by the assessee is decided in favour of the assessee.
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2020 (1) TMI 1574
Retail package or not - allegation is that the address of the manufacturer or packer and MRP have not been marked on such packages as required under the Standards of Weights and Measures (Package Commodities) Rules, 1977 - Whether the requirement of Rule 6 is to be complied with by a manufacturer who sells his packaged goods to an industrial consumer through a stockiest? - HELD THAT:- As per Rule 6 of the Rules which prescribes the declaration to be made on every package makes it clear that one of the requirement, which a package should contain is common generic names of the commodity contained in the package, as contained in Rule 6(1)(b) - In rule 2-A, industrial consumer or the institutional consumer are purchasing the packaged commodities directly from the manufacturer. In the case of retail package, the manufacturer of goods meant for industrial use may not be able to supply the goods directly. Therefore, they may take the assistance of a stockiest. If the customers are spread over the country and if the manufacturing unit is in one part of the country and they want to concentrate on manufacturing activity, they may not have resource or ability to arrange for the sale of their product through out the country. In these circumstances, it is quite but natural that they need middle men or stockiest as distributors, through whom they would distribute their product or sell their products to an industrial or institutional user. In such an event, that packaged commodity cannot be construed as a retail package - After deleting Rule 34(a), in the very definition of ‘retail package’, the legislature while defining the meaning of ‘ultimate consumer’ to whom a retail package is meant, excluded institutional or industrial consumer. Thus, it is clear that the protection under this Act is confined only to individuals and persons who are eking out livelihood by self employment and not to institutional and industrial consumers or consumers who purchase goods in large quantities.
In the present case, respondent No.1 is a manufacturer of industrial product. On the packet, it is expressly stated that it is meant for industrial use. The product which is manufactured by them is high end industrial welding products, such as electrodes, brazing rods, powders and fluxes. Respondent No.2 is their selling agent and selling these products through a network of stockiest spread all over India, 90% of the sales are generated through the involvement of core team of sales/service engineers of respondent No.2 who are trained in specialized Eutectic Castolin Welding Process - The learned single Judge after considering the entire material on record has rightly held that the impugned notices issued by appellant No.2 are one without authority, illegal and contrary to the express provision contained in the enactment, cannot be sustained and rightly quashed the notices.
Appeal dismissed.
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2020 (1) TMI 1573
Revision u/s 263 by CIT - claim of deduction under Section 80IA - HELD THAT:- It is evident from the records that though the appellant has raised the issue of jurisdiction of the Commissioner, under Section 263 to initiate suo motu revision especially when an appeal against Assessment Order has been filed and heard and order has been passed by the Appellate Commissioner and though the Tribunal went into the merits of the case, it has not decided about the jurisdiction. The jurisdiction point is an important point to decide the matter and therefore, the order passed by the Tribunal is set aside and the matter is remanded to the Tribunal to decide about the jurisdiction. The above substantial questions of law are answered accordingly.
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2020 (1) TMI 1572
Revision u/s 263 by CIT - claim of deduction under Section 80IA - HELD THAT:- It is evident from the records that though the appellant has raised the issue of jurisdiction of the Commissioner, under Section 263 to initiate suo motu revision especially when an appeal against Assessment Order has been filed and heard and order has been passed by the Appellate Commissioner and though the Tribunal went into the merits of the case, it has not decided about the jurisdiction. The jurisdiction point is an important point to decide the matter and therefore, the order passed by the Tribunal is set aside and the matter is remanded to the Tribunal to decide about the jurisdiction. The above substantial questions of law are answered accordingly.
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2020 (1) TMI 1571
Filing of proposed settlement terms/ plan disclosing all material particulars with regard to completion of the project - HELD THAT:- Copy of the proposed settlement terms/ plan shall be provided in advance to the Resolution Professional.
It is made clear that in the event of Appellant failing to provide settlement terms/ plan within 15 days, we may consider withdrawing the interim directions and resume Corporate Insolvency Resolution Process.
Post the case ‘for orders’ on 17th February, 2020.
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2020 (1) TMI 1570
Seeking liquidation of Corporate Debtor - Section 33 of I&B Code - HELD THAT:- In view of the averments made in the Progress Report particularly in the Fourth/Final Report filed by the RP, it is deemed fit and proper in these circumstances to pass an order of Liquidation of the Corporate Debtor under Section 33(2) of the Code, particularly for the reason that there is no resolution applicant forth-coming to take over or submit its Resolution Plan.
The Corporate Debtor has been ordered to be liquidated - Application allowed.
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2020 (1) TMI 1569
Abatement of appeals - appellant died pending the appeal - the sentence of imprisonment has become unworkable or not - whether in the facts of the present case, the accused who was sentenced for imprisonment as well as for fine, the High Court committed an error in not abating the appeal in toto? - HELD THAT:- This Court in Bondada Gajapathi Rao Vs. State of Andhra Pradesh, [1964 (3) TMI 90 - SUPREME COURT] had occasion to consider Section 431 Cr.P.C. A special leave petition was filed in this Court, the accused died during pendency of special leave petition. This Court again reiterated the principle on which hearing of a proceeding may be continued after the death of an accused.
The appeal filed by accused Ramesan in the High Court was not to abate on death of the accused. The High Court rightly did not direct for abatement of appeal and proceeded to consider the appeal on merits. The appeal before the High Court being against sentence of fine was required to be heard against the sentence of fine despite death of accused-appellant.
The view of the High Court is upheld that appeal filed by the accused was not to abate and was required to be heard and decided on merits but there is one aspect of hearing of the appeal before the High Court, which need to be noted - From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. The High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.
The ends of justice be served in reviving the Criminal Appeal before the High Court to give an opportunity to the legal heirs of the accused to make their submissions against the sentence of fine - appeal allowed in part.
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2020 (1) TMI 1568
Disallowance u/s 14A in computing the Book Profits u/sec 115JB - HELD THAT:- Though the Revenue has raised the objections, we found the Special Bench decision in the case of ACIT Vs. Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] is superior and Tribunal was correct in accepting the view, and granted the relief to the assessee. Hence we found no merits in the Misc. Petition filed by the Revenue and the Misc. Petition is dismissed.
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2020 (1) TMI 1567
Direction to respondents to grant applicants pro-forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits - HELD THAT:- The petitioners would try to assert that while the petitioners were still working as Commissioners of Income Tax, a Government Order came to be passed on 31.05.2013, wherein a decision which was taken by the 1st respondent-Government is to increase the strength of Chief Commissioner of Income Tax from 116 to 300 thereby taking a decision to increase additional 184 posts. When the said decision was taken, the applicants were still in service and they were in consideration zone, however meeting of the ACC was not scheduled till 30.01.2015. In fact, list of the Officers who were under consideration zone for the panel year 2013-14 was prepared vide office order dated 30.01.2015 in No.18/25/2014-EO(SM.II). The same would indicate the name of all the petitioners and D.B. Manival Raju.
In the subsequent proceedings initiated by the petitioners, the Tribunal has ignored to look into its own earlier order; also the reasoning assigned by the Tribunal to consider the prayer of D.B. Manival Raju for notional promotion and consequential benefits is ignored, while considering the petitioners’ applications. It clearly discloses that there is no parity in the order passed by the Tribunal while considering the prayer of petitioners which is similar to the prayer of D.B. Manival Raju, in earlier application.
This Court is of the considered opinion that the order dated 07.02.2018 in O.A.Nos.621-623/2016 is required to be quashed - petition allowed.
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2020 (1) TMI 1566
Disallowance of Contribution to Environment Relief Fund Liability u/s 43B - HELD THAT:- No material has been placed by Revenue to demonstrate that the order of Tribunal in assessee’s own case for A.Y. 2006-07 [2019 (1) TMI 1332 - ITAT PUNE] has been set aside / stayed by higher Judicial Forum. Revenue has also not pointed out any distinguishing feature in the facts of the present case and in the case of assessee’s own case in A.Y. 2006-07. We therefore, relying on the decision of the Tribunal in assessee’s own case in A.Y. 2006-07 for similar reasons hold that the disallowance made by the AO u/s 43B of the Act is uncalled for and therefore direct its deletion. Thus, the ground of the assessee is allowed.
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2020 (1) TMI 1565
Rectification of mistake - Revision u/s 263 - revision proceedings on issue of "inadequate enquiries w.r.t share capital raised" by the assessee company - Pursuant to search proceedings and centralization of records, the assessee company was subjected to detailed scrutiny for the relevant assessment year by jurisdictional Assessing Officer (Central Circle) who after making detailed enquiries and verification passed order u/s 153A and this relevant fact was not considered by the Hon'ble Bench , hence this Misc. Application filed - HELD THAT:- Tribunal has restored an ex-parte order passed by the ld. Commissioner of Income Tax, Kolkata-III, Kolkata u/s 263 of the Income Tax Act, 1961 dated 28.03.2013, on the grounds of violation of principles of natural justice to the file of the ld. CIT, Kolkata-III for fresh adjudication in accordance with law. The pleading of the ld. Counsel for the assessee that, such a restoration of the proceedings to the file of the Commissioner of Income Tax, Kolkata-III, Kolkata would not be proper and legal, for the reason that the proceedings had got barred by limitation was rejected by the Tribunal.
In this Miscellaneous Application the assessee submits that adequate enquiries with regard to rising of share capital were conducted subsequently by the assessing authorities, in a post search assessment proceedings which culminated into assessment order u/s 153A r.w.s. 143(3) of the Act for the very same assessment year was passed on 23.03.2015 and hence the order passed u/s 263 of the Act by the Commissioner of Income Tax, Kolkata-III, Kolkata is bad in law, has to be rejected for the reason that, there is no mistake apparent on record in the impugned order of the Tribunal dated 01.10.2019. Whether adequate enquiries were conducted in the subsequent proceedings u/s 153A r.w.s. 143(3) of the Act or not, was not a subject matter before us. The Commissioner of Income Tax, Kolkata-III, Kolkata may consider these arguments before passing the order u/s 263 dated 28.03.2013. Hence this Miscellaneous Application is rejected as devoid of merit.
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2020 (1) TMI 1564
Seeking Liquidation of Corporate Debtor - Section 33(1) and 33(2) of the code - HELD THAT:- The provisions of Section 33(l)(a)(i) make it amply clear that if no Resolution Plan is received within the statutory timeline stipulated under Section 12 of the IBC 2016, it is mandatory for this Tribunal to Order Liquidation of the Corporate Debtor.
The Application is allowed, ordering Liquidation of the Corporate Debtor.
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