Advanced Search Options
Case Laws
Showing 141 to 160 of 1115 Records
-
2020 (11) TMI 975 - SC ORDER
Imposition of Anti-dumping duty - enhancement of assessable value - change in classification of imported goods - trapezoidal roof profiles - HELD THAT:- Application for correction in the cause title stands allowed.
The cause title be amended accordingly.
-
2020 (11) TMI 974 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Permission for withdrawal of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of default or not - HELD THAT:- The Adjudicating Authority has, overlooked the mandate of law while deciding the maintainability of application on the basis of the objection raised by the Corporate Debtor.
The appeal is accordingly dismissed as withdrawn.
-
2020 (11) TMI 973 - SUPREME COURT
Claim of the appellant not being reflected under the heading ‘Claims of Operational Creditors’ in the Information Memorandum prepared by the Resolution Professional - HELD THAT:- It is not in dispute that the claim of the appellant is still pending adjudication before the Arbitrator and it has been, therefore, rightly described in the memorandum as other creditor claims (claims under adjudication) - The purpose of memorandum is only to provide relevant information regarding the financial position of the company in question. It is not about deciding the claim or disregarding the claim amount, if it exists in law.
Suffice it to observe that the claim of the appellant has been taken note of in the information memorandum and does not get extinguished as such; but it will be subject to adjudication by the Arbitrator. Since it is part of the memorandum, it is obvious that the resolution applicant would take the same into account while submitting his proposal, due notice whereof will be taken by the committee of creditors as well, and dealt with appropriately in the final resolution plan - In the event, the appellant has any grievance about the nature or manner of provision made in the final resolution plan qua its claim; and if aggrieved with the final resolution plan, may take recourse to appropriate remedy as per law.
Appeal disposed off.
-
2020 (11) TMI 972 - ITAT BANGALORE
Rectification of mistake - Allowability of weighted deduction u/s 35(2AB) - correct date of approval of the prescribed authority - HELD THAT:- The question with regard to the allowability of the assessee to claim deduction u/s 35(2AB) for AY 2011-12 needs to be re-adjudicated as there is a mistake apparent on the face of the record in terms of noticing the correct date of approval of the prescribed authority u/s 35(2AB). The decision of the Tribunal for AY 2010- 11 rejecting the appeal of the assessee for allowing deduction u/s. 35(2AB) of the Act will not be affected in any manner. However, the findings in AY 2010-11 regarding date of application for grant of approval and date of approval will be adjudicated afresh while adjudicating the issue of deduction u/s. 35(2AB) of the Act for AY 2011-12 without being influenced in any manner whatsoever by the findings in AY 2010-11.
-
2020 (11) TMI 971 - SC ORDER
Permission for withdrawal of petition - Grant of Bail - Money Laundering - siphoning of funds - proceeds of crime - money circulation scheme - HELD THAT:- Prayer is allowed.
The special leave petition is dismissed as withdrawn with the liberty aforesaid.
-
2020 (11) TMI 970 - MADRAS HIGH COURT
Maintainability of petition - Petitioner did not prefer any appeal before the TNSTAT, but has instead filed petition challenging the order passed by the Joint Commissioner beyond the maximum limitation period of 120 days - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
The Writ Petition challenging the order of the Joint Commissioner has not been filed within the maximum limitation period of 120 days from the date of receipt of copy of that order. The Petitioner has not shown any infirmity in the Garnishee Order No. TIN: 33510640011 dated 07.10.2015 issued by the Deputy Commissioner to Standard Chartered Bank for the recovery of the tax liability determined against the Petitioner - Petition dismissed.
-
2020 (11) TMI 969 - ALLAHABAD HIGH COURT
Reference of matter to Mediation Centre - As per the report of Mediation Centre dated 04.12.2019, mediation has failed, after which, matter was listed on 03.09.2020 - Counsel is standing here and requesting for adjournment without the file and is not aware of the earlier orders as well as brief facts of the case - HELD THAT:- Learned counsel for opposite party no. 2 has pointed out that on earlier occasions also just to linger on the matter, a request has been made on behalf of the applicant to pass over the case - In such a situation, though the case is passed over but the interim order granted earlier on 28.06.2019 stands vacated.
List this matter on 25th November, 2020.
-
2020 (11) TMI 968 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - impugned order of admission of application under Section 7 of I&B Code passed in ex-parte - HELD THAT:- No notice was served upon the Corporate Debtor and even the impugned order does not speak of notice being issued by the Adjudicating Authority. However, since the order is an ex-parte, we deem it appropriate to allow learned counsel for the Appellants to withdraw the appeal with liberty to agitate the matter before the Adjudicating Authority. The appeal is disposed of as withdrawn giving liberty to Appellant to raise the issue before the Adjudicating Authority in regard to notice not being served on the Corporate Debtor and the impugned order being passed in ex-parte without according opportunity to the Corporate Debtor of being heard. Appellants will be at liberty to demonstrate that no notice was served upon the Corporate Debtor before the impugned order came to be passed.
-
2020 (11) TMI 967 - CESTAT MUMBAI
Application for early hearing - goods are live consignment - HELD THAT:- Learned Authorised Representative has no objection.
The application is allowed.
-
2020 (11) TMI 966 - SUPREME COURT
Seeking to terminate a contract of service with the Appellant - seeking to blacklist the Appellant from participating in any future tenders of the Corporation for a period of 5 years - HELD THAT:- This Court in Gorkha Security Services v. Government (NCT of Delhi) and Ors. [2014 (8) TMI 1081 - SUPREME COURT] has described blacklisting as being equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held that It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts.
In the present case, the factum of service of the show cause notice dated 10.04.2018 by the Corporation upon the Appellant is not in dispute. Rather, what Shri Banerji has argued on behalf of the Appellant is that the contents of the said show cause notice were not such that the Appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation - Gorkha Security Services is a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing/contemplating such an action in the show-cause notice.
A clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.
The action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the "Instruction to Bidders", which were part of the Corporation's Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the Appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders Section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the Appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the Appellant the impression that the action of blacklisting was being proposed. This is especially true since the Appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only Clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice - mere existence of a Clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporation's notice is completely silent about blacklisting and as such, it could not have led the Appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the Appellant could have filed a suitable reply for the same. Therefore, the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting.
The blacklisting order passed by the Corporation is contrary to the principles of natural justice - Having regard to the peculiar facts and circumstances of the present case, it is deemed appropriate not to remit the matter to the Corporation for fresh consideration - appeal allowed.
-
2020 (11) TMI 965 - SUPREME COURT
Grant of Bail - Illegal arrest and wrongful detained by the Station House Officer (SHO) at Alibaug Police Station in the district of Raigad in Maharashtra in relation to a First Information Report registered on 5 May 2018 Under Sections 306 and 34 of the Indian Penal Code, 1860 in spite of an earlier closure report which was accepted by the Magistrate - HELD THAT:- While considering an application for the grant of bail Under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:
(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the Accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the Accused at the trial or the likelihood of the Accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the Accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations.
Human liberty is a precious constitutional value, which is undoubtedly subject to Regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure "or prevent abuse of the process of any Court or otherwise to secure the ends of justice". Decisions of this Court require the High Courts, in exercising the jurisdiction entrusted to them Under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the Accused taking recourse to artifices and strategies - The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the Appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the Appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the Appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the Rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.
The remedy of bail is the "solemn expression of the humaneness of the justice system"14. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic Rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
This Court had directed the release of all the three Appellants on bail pending the disposal of the proceedings before the High Court. The following operative directions were issued on 11 November 2020:
The High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Nitesh Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of ₹ 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses - The concerned jail authorities and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith.
-
2020 (11) TMI 964 - SC ORDER
Maintainability of review petition - HELD THAT:- Review Petition is rejected as it is always open to the petitioner to file a review petition before the National Company Law Appellate Tribunal, if it is otherwise permissible in law.
-
2020 (11) TMI 963 - KARNATAKA HIGH COURT
Deduction u/s 10A - assessee's activity of human resources services are IT enabled services - As per revenue the assessee was only making available the data base of qualified IT personnel - HELD THAT:- The assessee admittedly is involved in providing human resource services and from the perusal of the order passed by the Assessing Officer, it is evident that if the nature of activity of the assessee is maintenance of computerized database with regard to various types of qualified Information Technology personnel available in India and the company provides the customers with information to potential candidates, which would meet the requirements on the customers.
Role of the company is to create an electronic database of qualified personnel and transmit data through electronic means to the client. The Commissioner of Income Tax (Appeals) has also found that the assessee is in the business of supply of manpower from India to its Foreign clients after their recruitment in India. Thus, irrespective of the fact whether or not the assessee provides training to its employees or to the employees who are recruited by its clients, since, the assessee is engaged in providing human resource services, its case is squarely covered by Notification dated 26.09.2000. Therefore, the assessee is entitled to the benefit of deduction under Section 10A - Decided in favour of the assessee
-
2020 (11) TMI 962 - ITAT MUMBAI
Denial of exemption u/s 11 - audit report in Form no.10B of the Act was filed belatedly - HELD THAT:- In Circular no.10./2019, the CBDT has clarified that for the assessment year 2016–17 and 2017–18, in all cases where the audit report for the year under consideration has been obtained before filing of the return of income and has been furnished subsequent to filing of return of income, but before the date specified under section 139 such delayed filing should be condoned.
In the facts of the present case, the claim of the assessee that it has obtained the audit report prior to the date of filing of return of income and has filed audit report before the due date of return of income under section 139(1) has not been controverted by DR. Commissioner (Appeals) has also upheld the disallowance of exemption by simply stating that it is not a rectifiable mistake under section 154 of the Act. When the assessee has complied with the statutory provisions in terms of the CBDT Circular, the delay if any, in filing the audit report should have been condoned. We delete the disallowance made and allow assessee’s claim of exemption under section 11 - Grounds raised by the assessee are allowed.
-
2020 (11) TMI 961 - SC ORDER
Applicability of Interim relief in other cases - HELD THAT:- The view expressed in the impugned judgment is kept in abeyance and it cannot be followed in other cases till the issue is finally answered/decided by this Court.
List this matter after two weeks.
-
2020 (11) TMI 960 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Application for Replacement of Resolution Professional - HELD THAT:- Mr. Nikhil, Learned Counsel for the Ex-Directors mentions and confirms that the Resolution Professional is not following the procedure of law and in the appeal filed by the Ex-Management which is pending before the Hon'ble National Company Law Appellate Tribunal, the issue of behaviour of Resolution Professional is also being agitated. The minutes though not in the form of Resolution but records at various places about the disapproval of RP's behaviour & actions by the CoC and dire-need to replace RP is placed on record. The e-mail sent by the majority CoC Member i.e. Power Department, Government of Sikkim has already intimated about this removal and lack of authority to RP. Considering the documents placed and submissions made before us, we allow the application, thereby Mr. Diwan Chand Arya present Resolutiion Professional is be and hereby replaced by Mr. Debrath Rana. Consent Form 'AA' is also annexed with the application.
List on 16-12-2020.
-
2020 (11) TMI 959 - ITAT PUNE
Non granting registration u/s 12AA - CIT-A denied the registration primarily on the ground that the object of the trust prima-facie appears to be religious in nature and there was no dissolution clause in the instrument creating the trust - HELD THAT:- The reasoning of the ld. Commissioner of Income Tax (Exemptions) that in the absence of dissolution clause the appellant trust does not entitle for registration u/s 12AA of the Act is also required to be adjudged in view of the decision in the cases of (i) DCIT vs. Vanchhara Thirthadhipati Chintamani Paraswaprwabhu [2015 (5) TMI 5 - GUJARAT HIGH COURT] AND TAPAGACHHA SANGH MOTA [2015 (5) TMI 87 - GUJARAT HIGH COURT]
Provisions of section 13(1)(b) of the Act had carved out exception to the exemption available u/s 11 and 12 of the Act. One of those exception is that the exemption u/s 11 and 12 would not be available in case any income of trust or institution is created or established for the benefit of any particular religious, community or caste.
Hon’ble Supreme Court in the case of CIT vs. Dawoodi Bohra Jamat [2014 (3) TMI 652 - SUPREME COURT] after exhaustively referring to the earlier precedent, held that where the objects of a trust are both charitable and religious, the trust shall be eligible for registration u/s 12AA.
The section only requires to be established that such charitable purpose is not for the benefit of a particular religious community or caste. That is to say, it needs to be examined whether such religious-charitable activity carried on by the trust only benefits a certain particular religious community or class or serves across the communities and for society at large. In the present case, ld. Commissioner of Income Tax (Exemptions) had obviously not embarked upon enquiry into this aspect. Appeal of the assessee stands allowed for statistical purposes.
-
2020 (11) TMI 958 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in the business of development and technical maintenance work in certain intellectual property and knowhow related to certain products and systems thus companies functionally dissimilar with that of assessee need to be deselected .
Secondary and higher education cess is deductible as business expenditure under section 37 (1) -Additional ground raised by assessee - HELD THAT:- Nothing is discernible from the record to establish that assessee has raised the claim by way of revised return before Ld.AO. However we are of considered opinion that this is an allowable expenditure and has of assessee’s. Accordingly we remand this issue back to Ld.AO to consider the claim of assessee in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee. Accordingly this ground raised by assessee stands allowed for statistical purposes.
-
2020 (11) TMI 957 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking payment of his fee by IRP and staying of his replacement - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the instant case, the sole Financial Creditor (Indian Bank) has voted to replace the Resolution Professional under Section 22 of the ‘I&B Code’ which means the replacement is sought with 100% voting shares while the requisite vote is 66%. It is well settled that the commercial wisdom of the Committee of Creditors which covers matters including the replacement of the Resolution Professional does not fall within the limited scope of judicial review and is not justiciable.
Fees of IRP - HELD THAT:- The Adjudicating Authority has rightly observed that under Regulation 33(3) of the IBBI, fee has been fixed by the Committee of Creditors at ₹ 50,000/- which does not brook interference - In view of the same, we are not inclined to interfere with the impugned order which does not suffer from any legal infirmity.
Appeal dismissed.
-
2020 (11) TMI 956 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA
Classification of services - Online Information and Database Retrieval Services - Type-3 test administrative solution offered by the Respondent Company to its clients in India - minimum human intervention - levy of integrated tax on the supply of said services to non-taxable online recipients in India - lower Authority had held that the Type-3 test does not qualify for classification as OIDAR service - HELD THAT:- There is no dispute on the fact that there is an element of human intervention involved in the process of scoring the essay responses in the Type-3 test. What needs to be decided is whether the extent of human intervention is ‘minimum’ or not. Since there are no guidelines in Indian laws regarding the concept of minimum human intervention in electronically provided services, we refer to the European Commission VAT Committee Working Paper No 896 wherein the notion of ‘minimal human intervention’ was discussed in the context of determining whether or not a service can be said to fall within the definition of electronically supplied services. The European VAT Committee had agreed that for the assessment of the notion of ‘minimal human intervention’, it is the involvement on the side of the supplier which is relevant and not that on the side of the customer.
We have already detailed the entire process involved in conducting the Type-3 test and it is seen that scoring by a human scorer is just one of the processes involved in a computer-based test. One of the major benefits of a computer based test is the facility of obtaining immediate grading. While grading of multiple-choice questions is done instantaneously using an algorithm, grading of essays involves the use of AES (Automated Essay Scoring) which is a specialized computer program to assign grades to essays. The Respondent has an entity in the United States which has developed an AES for reliable scoring of essay responses in a computer-based test. How does one know that the automatic scoring system works well enough to give scores consistent with consensus scores from human scorers? Any method of assessment must be judged on validity, fairness and reliability. An AES would be considered valid if it measures the trait that it purports to measure and it would be considered reliable if its outcome is repeatable. Before computers entered the picture, essays were typically given scores by two trained human raters. If the scores differed by more than one point, a more experienced third rater would settle the disagreement. In this system, reliability was measured by the degree of agreement among the human raters. The same principle applies to measuring a computer program’s performance in scoring essays.
The focus here is on a computer-based test where the intent is to also assess the performance of the candidate using an automated system. The reliability of the AES is validated by the near agreement to the score given by the human scorer. For this reason, we hold that the involvement of the human element in the assessment of essay responses is well within the realm of ‘minimum human intervention’. Further, even from the perspective of the candidate, the human involvement is minimum in the entire process of the Type-3 computer-based test starting from the manner of registering for the test, the actual test-process and the outcome of the test, as all stages are automated.
The Respondent accepts the electronic request for a rescore of the essay and returns the result to the candidate electronically. The candidate who is the service receiver has received a fully digitally provided service. When the Type-3 computer-based test is viewed as a whole, the scoring done by the human scorer is to be regarded as being within the realm of minimum human intervention. As such the ingredient of ‘minimum human intervention’ required to classify the service as OIDAR is also satisfied.
The decision of the lower Authority that the Type-3 test is not an OIDAR service, cannot be accepted - service provided for the Type-3 test is classifiable as an OIDAR service.
............
|