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Showing 141 to 160 of 1472 Records

• 2020 (3) TMI 1333 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Permission for withdrawal of appeal - Appellant states that she may be permitted to withdraw the Appeal with liberty to the Appellant to pursue appropriate remedies in appropriate forum - HELD THAT:- The Appeal is disposed as withdrawn with liberty to the Appellant to pursue appropriate remedies available in appropriate forum.

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• 2020 (3) TMI 1332 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Permission for withdrawal of appeal - amicable settlement between parties or not - HELD THAT:- The settlement amount is agreed to be paid as provided in Para 3 of the consent terms. The consent terms, having been agreed to by the Parties, are binding on the Parties and in view of the consent terms, Respondent No. 1 is required to withdraw the application filed under Section 9 of Insolvency and Bankruptcy Code, 2016 before the Ld. Adjudicating Authority.

  It is deemed appropriate to invoke our inherent powers in terms of Rule 11 of the National Company Law Appellant Tribunal Rules and dispose of the Appeal as per the consent terms. Corporate Debtor is released from the rigour of Corporate Insolvency Resolution Process. The Adjudicating Authority is directed to close the case. The consent terms takes care of the fee of the Resolution Professional as also resolution costs and the IRP admits that all such fee and costs have been paid - appeal disposed off.

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• 2020 (3) TMI 1331 - AUTHORITY FOR ADVANCE RULING, KERALA
  

  Levy of GSply of goods & services by way of catering to students of Govt. Industrial Training Institute, Kalamassery as per the Govt. Scheme for ₹ 12.40/- per student per day - requirement of GST registration - applicability of TDS under Section 51 of the GST Act - refund of GST is eligible in the case of TDS deducted and paid - HELD THAT:- The supply made by the applicant falls under Service Classification Code - 9963 - 996337 - Other contract food services - as per the Scheme of Classification of Services notified as Annexure to Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 - As per the Explanatory Notes to the Scheme of Classification of Services this service code includes food preparation and /or supply services based on contractual arrangements with the customer, at institutional, governmental, commercial or industrial locations specified by the customer other than for transportation companies, on an ongoing basis; food service concession services, i.e. the provision of operating services by operators of eating facilities such as canteens and cafeterias.

  The exemption to catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; provided to an educational institution as per Sl. No. 66 of the Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 is not applicable to institutions other than institutions providing services by way of pre-school education and education up to higher secondary school or equivalent.

  As per the details of the academic qualifications prescribed for admission to the courses conducted by the ITI, the institute can be classified as an institution providing services by way of education up to higher secondary school or equivalent. As the exemption to catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; provided to an educational institution as per Si No. 66 of the Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 is applicable to the institutions providing services by way of education up to higher secondary school or equivalent, the catering services to the trainees in the Industrial Training Institute is eligible for exemption from GST.

  Requirement of GST registration - HELD THAT:- As per Section 22 of the CGST/SGST Act, 2017; every supplier shall be liable to be registered under this Act in the State from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees. Section 23 (1) of the CGST Act, 2017 stipulates that any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax shall not be liable to registration. In view of the provisions of Section 23 of the CGST Act, 2017, the applicant is not liable to registration if the applicant is exclusively engaged in the supply of goods / services.

  Applicability of TDS under Section 51 of the GST Act - HELD THAT:- As per Section 51 of the CGST/SGST Act, 2017 a department or establishment of the State Government shall be liable to deduct tax at the rate of two per cent from the payment made or credited to the supplier of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakh and fifty thousand rupees. As the activity of the applicant is exempted from GST the provisions of TDS is not attracted.

  Refund of GST is eligible in the case of TDS deducted and paid - HELD THAT:- The amount deducted as TDS will be credited to the Electronic Cash Ledger of the applicant on filing of TDS returns by the Deductor as the applicant is registered. Since the supply made by the applicant is exempted from GST, the applicant can claim refund of the excess balance in the Electronic Cash Ledger as per provisions of Section 54 of the CGST Act, 2017.

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• 2020 (3) TMI 1330 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
  

  Sanction of scheme of Amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- Considering the factual details, the profit earning capacity and other financials of the Transferor-I and Transferor-II Companies, the share exchange ratio as per the valuation given by the Auditor and the Fairness Opinion given by the Merchant Banker appears to be too high which results in undue advantage/ enrichment to the shareholders of both the Transferor Companies and to the shareholders of the ultimate holding Company RHI Magnesita. Therefore, we are of the considered view that the Scheme is devised/ designed majorly to benefit the Two shareholders of Transferor Company-I and few shareholders of Transferor Company-II which in turn the undue advantage ultimately flows to the shareholders/ holding Company, i.e. RHI Magnesita.

  The Scheme appears to benefit only a few shareholders of Transferor Company to be unfair and unreasonable and contrary to the public policy, public shareholders of the listed Company therefore, we deem it fit not to sanction/ approve the proposed Scheme of Amalgamation - The scheme cannot be sanctioned.

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• 2020 (3) TMI 1328 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
  

  Sanction of Scheme of Amalgamation - section 230-232 of Companies Act - seeking directions regarding holding and convening of various meetings - HELD THAT:- Since the Scheme is an arrangement between the Applicant Company and its shareholders in accordance with the provisions of section 230(1)(b) of the Companies Act, 2013, the meeting of the Unsecured Creditors is not required to be convened. In view of the fact that the rights of the Unsecured Creditors are not affected, the meeting of Unsecured Creditor is hereby dispensed with. This Bench hereby directs the Applicant Company to issue notice to all its Unsecured Creditors by Courier/RPAD/Speed Post/Hand Delivery or through Email with a direction that they may submit their representations, if any, to the Tribunal and copy of such representations shall simultaneously be served upon the Applicant Company.

  Application disposed off.

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• 2020 (3) TMI 1327 - ITAT DELHI
  

  Characterisation of income - interest awarded u/s 28 of the Land Acquisition Act - computation of capital gain u/s 45 - Whether interest awarded u/s 28 of Land Acquisition Act, 1894 is nothing but an accretion to the value compensation and hence it is part and parcel of compensation? - HELD THAT:- From the perusal of the order of the CIT(A), it can be seen that the CIT(A) has not given a separate finding as to why the Assessing Officer is justified in making an addition. The Assessing Officer as well as the CIT(A) have not given any finding as to the fact that the assessee has not received interest u/s 28 of the Land Acquisition Act, 1894.

  This issue has been decided by the Hon’ble Apex Court in case of Union of India Vs. Hari Singh [2017 (11) TMI 923 - SUPREME COURT]wherein it is held that on agricultural Land no tax is payable when the compensation/enhanced compensation is received by the assessee as their land were agricultural land. The compensation was received in respect of agricultural land belonging to the assessee which had been acquired by the state government. The CIT(A) has not taken cognizance of the decision of the Apex Court in case of Hari Singh (supra). The ratio of the said decision is applicable in the present case. Thus, the appeal of the assessee is allowed.

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• 2020 (3) TMI 1326 - ORISSA HIGH COURT
  

  Dismissal of appeals by ITAT for non-persecution - whether the Income Tax Appellate Tribunal has the power to dismiss the appeal for want of prosecution or not? - HELD THAT:- Article 265 of the Constitution mandates that no tax can be collected except by authority of law. Appellate proceedings are also laws in strict sense of the term, which are required to be followed before tax can legally be collected. Similarly, the provisions of law are required to be followed even if the tax payer does not participate in the proceedings. No assessing authority can refuse to assess the tax fairly and legally, merely because the tax payer is not participating in the proceeding. Hence, dismissal of appeals by ITAT for non-persecution is wholly illegal and unjustified.

  If we see this issue through the prism of the Principles of natural justice, an appellate authority is required to afford an opportunity to be heard to the appellant. It has been held in plethora of cases that “right to natural justice” is a personal right, either a person can waive it or a person may not avail it. Merely because a person is not availing his right of natural justice, it cannot be a ground of refusal to perform statutory duty of deciding appeal by the Tribunal.

  We are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing.

  In view of the above analysis, the Rules and the provisions of the Act would pave way for the Tribunal to reconsider its decision.

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• 2020 (3) TMI 1325 - AUTHORITY FOR ADVANCE RULINGS — MUMBAI BENCH (INCOME-TAX)
  

  Income deemed to accrue or arise in India - Capital gain on sale of shares - can section 9(1)(i) at all be applied and tax charged on the transaction, in the absence of the requisite rules having been framed for the purposes of implementing section 9(1)(i) of the Income-tax Act, 1961 as on the closing date ? - withhold tax u/s 195 on acquisition of shares - HELD THAT:- In this case, the shares of STC (USA) held by the THLPV, solely as representative for the holders of securities of STC (including certain members of the applicant), have entered into an agreement and plan of merger for the transfer of its entire shareholding to STC, Harman International Industries Incorporated, the buyer. The share transaction, in this case is between two non-resident entities STC USA and STG Group involving the shares of STC. The said transaction between two foreign entities is primarily not liable for any taxation in India. However, in this shares of (STC USA) are transacted, which had a presence in India in the form of a subsidiary, M/s. Symphony Teleca Corporation India Private Limited (STCIPL). STCIPL is the wholly owned subsidiary of Global Symphony Technology Group Private Limited, Mauritius. The ultimate holding company of the Indian entity is STC(USA), whose shares are transacted.

  It is a fact that during 2012 to 2016, the word "substantially" appearing in Explanation 5 to section 9(1)(i) of the Income-tax Act was not defined in the Act and it was subject matter of scrutiny of the courts in number of cases, i. e., DIT (International Tax) v. Copal Research Ltd. [2014 (8) TMI 606 - DELHI HIGH COURT], GEA Refrigeration Technologies GmbH [2018 (1) TMI 945 - AUTHORITY FOR ADVANCE RULINGS, NEW DELHI] and Banca Sella S.P.A., In re [2016 (9) TMI 163 - AUTHORITY FOR ADVANCE RULINGS NEW DELHI] and it was uniformly held that "substantially" will mean at least 50 per cent. This position was also clarified by Explanation 6 which was brought in to the statute after recommendation of Expert Committee under Dr. Shome on this issue was accepted by Government and Circular No. 19 of 2015, dated November 11, 2015 affirmed this position.

  AR has averred that STC's Indian assets are less than 31 per cent. of its world assets, we are of the view that the capital gain arising on the transfer of the STC shares is not taxable in India under section 9(1)(i) of the Income-tax Act.

  Revenue may however, verify the computation furnished by the applicant as per rule 11B and rule 11UC. It is reiterated that the ruling is given based on the facts and figures presented before us and if sub-sequently it is found that the figures are at variance and the actual percentage exceeds 50 per cent., the ruling would not apply and the Revenue would not be bound by such ruling.

  The transfer of shares of STC by STG is not chargeable to tax in India under the provisions of section 9(1)(i) of the Income-tax Act. The buyer is not required to withhold tax u/s 195 of the Act on acquisition of shares of STC from STG.

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• 2020 (3) TMI 1324 - SUPREME COURT
  

  Reference of matter to Larger Bench - contrary opinions by two different Constitution Benches on the interpretation of Article 370 of the Constitution - Temporary provisions with respect to the State of Jammu and Kashmir - alleged contradictory views of this Court in PREM NATH KAUL VERSUS THE STATE OF JAMMU & KASHMIR [1959 (3) TMI 73 - SUPREME COURT] and SAMPAT PRAKASH VERSUS STATE OF JAMMU & KASHMIR [1969 (2) TMI 186 - SUPREME COURT] case? - Doctrine of precedents.

  HELD THAT:- The first case which needs to be looked at is the Prem Nath Kaul case which dealt with the validity of the Jammu and Kashmir Big Landed Estate (Abolition) Act, 2007. The main contention on which the Act was impugned was that the Yuvaraj did not have the constitutional authority to promulgate the said Act. One of the arguments canvassed by the Petitioner in that case related to the effect of Article 370 of the Constitution of India on the powers of the Yuvaraj. The Constitution Bench, in deciding that it would be unreasonable to hold that Article 370 could have affected, or was intended to affect, the plenary powers of the Maharaja, made certain observations relating to Article 370 of the Constitution, which the counsel before us arguing for a reference have relied upon. The observations of the Constitution Bench in the Prem Nath Kaul case regarding Article 370 therefore merit reproduction in their entirety - The learned senior Counsel submit that there exists a conflict with the dicta of another Constitution Bench of this Court in the Sampat Prakash case. In the Sampat Prakash case, this Court was seized of a matter pertaining to the detention of the Petitioner in that case under the Jammu and Kashmir Preventive Detention Act 13 of 1964. The main point canvassed before the Constitution Bench was whether the continuation of Article 35(c) of the Constitution (as applicable to the State of Jammu and Kashmir), which gave protection to any law relating to preventive detention in Jammu and Kashmir, through successive Constitution Orders passed in exercise of the powers of the President Under Article 370 of the Constitution, in 1959 and 1964, was valid. The Court held that the Constitution Orders were validly passed in exercise of the power Under Article 370 of the Constitution, which continued beyond the date of dissolution of the Constituent Assembly.

  First, it is worth highlighting that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. The Court in the Prem Nath Kaul case had to determine the legislative competence of the Yuvaraj, in passing a particular enactment - Second, the framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in office by virtue of the Maharaja's proclamation dated March 5, 1948, prior to the sitting of the Constituent Assembly of the State, would have to be placed before the Constituent Assembly, for its decision as provided Under Article 370(2) of the Constitution.

  This Court is of the opinion that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case. The plea of the counsel to refer the present matter to a larger Bench on this ground is therefore rejected.

  Doctrine of precedents - HELD THAT:- The Rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment. The same having an impact on the stability of the legal precedents must be applied sparingly, when there is an irreconcilable conflict between the opinions of two co-ordinate Benches. However, as indicated above there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul, accordingly, the case of Sampat Prakash is not per incuriam.

  There are no reason to refer these petitions to a larger Bench on the questions considered.

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• 2020 (3) TMI 1323 - ITAT CHENNAI
  

  Bogus LTCG - exemption u/s. 10(38) denied - certain companies listed in the Bombay Stock Exchange by a group of persons acting as a syndicate in order to provide entries of tax exempt long term capital gains to a large number of persons (beneficiaries) in lieu of unaccounted cash - HELD THAT:- As noticed that the assessee has not been given a fair opportunity to prove the genuineness but the assessment has been made based, primarily, on the evidences collected by the Revenue in the course of the investigation conducted by them on brokers / share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require readjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax authorities proper materials which would enable them to come to a conclusion. See RAMAKRISHNA DEO. [1958 (10) TMI 9 - SUPREME COURT]

  Thus, the AO must keep in mind that the onus of proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence.

  We deem it fit to remit the issues of exemption claim in this appeal back to the file of the A.O. for readjudication on the lines indicated above. Therefore, the A O shall require the assessee; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual, genuine etc.The assessee shall comply with the A.O’s requirements as per law. The Assessing Officer shall also bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc. as had been held by the Co-ordinate Bench of this Tribunal in the case of Shri Aravind Nandial Khatr [2018 (12) TMI 1652 - ITAT CHENNAI] - Assessee’s appeal is treated as partly allowed for statistical purposes.

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• 2020 (3) TMI 1322 - APPELLATE AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
  

  Classification of supply - supply of services or not - amount recovered from the employees towards car parking charges payable to Shanti niketan Properties Private Limited (building authorities) - valuation of the supply - pure agent or not - input tax credit on supply of car parking services to employees.

  Interpretation of the word 'easement' - HELD THAT:- In common parlance the word easement is defined as “a right to cross or otherwise use someone else's land for a specified purpose” - The appellant is providing right to its employee's to use parking facility on the parking space provided by the building authority and for this work they are collecting certain amount from their employee. Accordingly, the activity in question, provided by the appellant, is squarely falls under the Schedule II i.e. “Activities to be treated as Supply of Goods or supply of Service” of the CGST Act, 2017.

  Whether the service provided by the appellant would be in the nature of “pure agent”? - what Would be the value for the purpose of tax liability? - HELD THAT:- The Authority of Advance Ruling, Maharashtra, in the case of M/s. DRS Marine Services Pvt. Ltd. [2018 (12) TMI 893 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA], has observed that, “Applicant will be acting as a pure agent of RMS in as much as the entire amount received by them as Crews' Salary will be disbursed to the Crew and no amounts from the said receipt will be used by the Applicant for his own interest” - In the instant case also, it is observed that the appellant has contended that they are transferring the entire amount collected, from their employees towards parking charges, to the Building Authorities. Accordingly, the value of the services in the present case will be NIL, as the appellant is providing the same in the capacity of a Pure Agent, subject to the fulfillment of the conditions prescribed for “Pure Agent”.

  Input tax credit against supply of car parking services to employees - HELD THAT:- Though the activity undertaken by the appellant is a supply of service, in terms of Section 7(1) of the CGST Act 2017, however the value of the service would be nil, as the appellant is acting in the capacity of Pure agent for their employees, subject to the fulfillment of conditions. Accordingly the question becomes redundant.

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• 2020 (3) TMI 1321 - DELHI HIGH COURT
  

  Non-payment of interest on the gross amount - adjustment of ITC lying to the credit of the Petitioner - HELD THAT:- Reply be filed before the next date of hearing. Till the next date, no coercive action shall be taken against the Petitioner for non-payment of interest on the gross amount, provided the interest on the net amount payable after adjustment of ITC lying to the credit of the Petitioner is made.

  Let notice be issued to the other respondents returnable on 22.04.2020.

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• 2020 (3) TMI 1320 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
  

  Compromise and arrangements - Seeking directions regarding dispensing with holding of any meetings of unsecured creditors and meeting of shareholders for the approval of the scheme - seeking approval of scheme A submitted by M/s. Seshasayee Paper and Board Ltd., or scheme B submitted by M/s. Sun Paper Mill Ltd., in the interest of the justice - HELD THAT:- In a transaction of a reasonable magnitude as in the present instance, the quantum of payment offered by the respective proponents in their respective schemes to the different stake holders are almost on an even keel save some differences here and there. The financial capability and wherewithal to execute the respective schemes if either one is chosen, is also exhibited by both the scheme proponents as evident from the earlier paragraphs. Both the scheme proponents also belong to the industry as to the one being carried by the company in liquidation. Thus a piquant situation arises.

  In a transaction of a reasonable magnitude as in the present instance, the quantum of payment offered by the respective proponents in their respective schemes to the different stake holders are almost on an even keel save some differences here and there. The financial capability and wherewithal to execute the respective schemes if either one is chosen, is also exhibited by both the scheme proponents as evident from the earlier paragraphs. Both the scheme proponents also belong to the industry as to the one being carried by the company in liquidation. Thus a piquant situation arises.

  Thus armed with the wisdom gleaned from the precedents as cited above as well as a somewhat elaborate discussion which necessitates this Tribunal to address a problem which has been put in its lap for which a dynamic solution is required to be found without being too analytical and at the same time without losing track in any way the objectives of the Code for which it was framed including for the resolution of insolvency and re- organisation which includes within its ambit revival and restructuring within a speedier time frame for maximization of value of its assets of the company in liquidation.

  Let the scheme approved based on the voting method be placed before this Tribunal for its sanction within a period of 60 days from the date of this order.

  Application disposed off.

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• 2020 (3) TMI 1319 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Maintainability of appeal under section 60(1) of IBC - money advanced constituted a ‘financial debt’ - application under Section 7 of the Insolvency and Bankruptcy Code, 2016 not dealt with - HELD THAT:- It emerges from the record that the application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“I&B Code” for short) has not been dealt with at the stage of admission and no order has been passed either admitting or rejecting the application.

  Mere finding on an Interlocutory Application that the debt claimed by the Creditor constituted a ‘financial debt’ would not ipso facto justify admission or rejection of the application as learned Adjudicating Authority is required to consider the debt along with default and unless there is a finding in respect of default and an order of admission is passed, ‘Corporate Insolvency Resolution Process’ does not commence. Viewed in this perspective, it is futile to contend that the appeal in terms of Section 60(1) shall be maintainable.

  Appeal dismissed.

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• 2020 (3) TMI 1318 - SUPREME COURT
  

  Entitlement to pension on completion of 15 years of service as per the State Bank of India Voluntary Retirement Scheme - whether, under the scheme as approved and adopted by the Central Board of SBI, the pension is admissible to the employees on completion of 15 years of permanent service?

  HELD THAT:- It is apparent that once the Central Board of Directors accepted the memorandum for making payment of pension, in case it was not accepting the proposal in the memorandum, it ought to have said clearly that it was not ready to accept the proposals of the Government and the IBA and rejects the same. Once it approved the proposals referred to in the memorandum, which were on the basis of IBA's letter and Government of India's decision it was bound to implement it in true letter and spirit. By accepting the same, binding obligation was created upon the SBI to make payment of pension on completion of 15 years of service. It cannot invalidate its own decision by relying on fact it failed to amend the rule, whereas other Banks did it later on with retrospective effect. They cannot invalidate otherwise valid decision by virtue of exclusive superior power to amend or not to amend the Rule and act unfairly and make the entire contract unreasonable based on misrepresentation.

  It is apparent from the eligibility Clause of the VRS scheme that eligibility is provided for the employees having 15 years of pensionable service and they will be entitled for benefits as provided in the scheme. The eligibility clause, when read with clauses providing the benefit, i.e., clauses 5 and 6 of the scheme, leaves no room for any doubt and makes it clear that employees with 15 years of service were treated as eligible to claim the benefit of the scheme floated by SBI. It was not the provision in the VRS scheme that incumbents having completed 20 years of service would be entitled for pensionary benefits. The scheme was carved out specially for attracting the employees by providing pension and other benefits to eligible persons like ex gratia, gratuity, pension and leave encashment. Deprivation of pension would make them ineligible for the benefits and would run repugnant to the eligibility clause.

  The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme.

  The employees who completed 15 years of service or more as on cut-off date were entitled to proportionate pension under SBI VRS to be computed as per SBI Pension Fund Rules. Let the benefits be extended to all such similar employees retired under VRS on completion of 15 years of service without requiring them to rush to the court - Appeal disposed off.

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• 2020 (3) TMI 1317 - KERALA HIGH COURT
  

  Interpretation of statute - Sub Entry 27 of Entry 36 of the IIIrd Schedule - Classification of goods - Ayurvedic Baby Soap - Ayurvedic Tooth Paste - Ayurvedic Mouth Wash - Baby gift pack and - Ayurvedic Baby Powder - eligibility for concessional rate of tax in terms of the newly introduced Clause 27 under Entry No. 36 of the IIIrd Schedule to the KVAT Act, 2003 - HELD THAT:- The 'Authority for Clarification' has found against the assessee on the ground that the products in question do not have therapeutic or prophylactic use and therefore they are not 'medicaments'. It is further stated that Soap, Tooth Paste and Mouth Wash are toilet articles and Baby Powder is more of a toilet article than a cosmetic. In the case of Gift Pack, it is found that the major items in the pack are taxable at 14.5% and that the pack therefore attracts tax at the same rate.

  Tooth paste and tooth powder - HELD THAT:- Apex Court in SARIN CHEMICAL LABORATORY VERSUS COMMISSIONER OF SALES TAX, UP. [1970 (8) TMI 64 - SUPREME COURT] held that Tooth Paste and Tooth Powder are toilet articles and will not be Cosmetics in common parlance. In the above view of the matter, contention raised by the petitioners with regard to Tooth Paste which is one of the products, for which clarification is sought for has to fail.

  Baby soap - HELD THAT:- Rule 23 of the Rules of Interpretation specifically excludes Soaps from the purview of Entry 36. In view of the fact that Soaps stand specifically excluded under Rule 23, we are not called upon to decide the question whether Baby Soap is a toilet article in common parlance or not. The clarification given in Annexure-IV order with regard to Soap also is therefore perfectly sustainable.

  Mouth Wash - Gift Packs - Ayurvedic Baby Powder - HELD THAT:- The issue with regard to the exigibility of tax at concessional rates under Sub Entry 27 of Entry 36 of the IIIrd Schedule with regard to Baby Powder, Baby Gift Pack and Mouth Wash are issues which require a reconsideration and a reasoned order at the hands of the clarificatory authority.

  The findings contained in Annexure A4 order of clarification with regard to Baby Soap and Tooth Paste as contained in the impugned order - With respect to other products the matter is remanded to the 'Authority for Clarification' for reconsideration and a reasoned order on the exigibility of tax to three other products, i.e., Baby Powder, Mouth Wash and Baby Gift Pack.

  Appeal allowed by way of remand.

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• 2020 (3) TMI 1316 - DELHI HIGH COURT
  

  Suit instituted by an authorised person or not - suit disclose any cause of action or not - suit is barred by limitation or not - entitlement to a decree of declaration - entitlement to a decree of mandatory injunction - entitlement to a decree of cancellation - entitlement to a decree of permanent injunctions - entitlement to a decree for damages - entitlement to interest, if so, at what rate and for what period - HELD THAT:- It may be stated that though the suit has been pending before this Court for over three years and issues have also been framed therein and the parties relegated to evidence but the same is not a ground to put the said suit to trial, if otherwise it was found to be not maintainable. A perusal of the order sheets shows that the question of maintainability of the suit has never been gone into at any earlier point of time. Once doubts as to the maintainability of the suit have arisen, the suit cannot be permitted to pedantically proceed to trial, taking up resources of this Court which can be better utilized for other deserving cases which cannot be adjudicated without trial. Even otherwise, it is the settled law that framing of issues is not a bar to an application under Order XII Rule 6 of the CPC for decreeing the suit forthwith without any new material coming before the Court and allowed on the same record on which issues were framed.

  Whether the suit on the pleas in the plaint and the documents aforesaid ought to have been entertained in the first place? - HELD THAT:- The legislature in its wisdom, while providing for creation of a juristic entity such as a company, incorporated provisions in the company law, of remedies available to the shareholders of a company in the event of oppression and mismanagement. The same was in consonance with the principles that the law having providing for management of affairs of a company by its Board of Directors or as laid down in the Articles of Association of a company, individual shareholders should not be permitted to interfere in the affairs and business of the company by filing civil suits against the company.

  Once the Legislature in its wisdom has deemed it appropriate that less than the prescribed number of shareholders or shareholders holding less than the prescribed number of shares should not be permitted to initiate legal proceedings with respect to management and affairs of the company, it would be travesty of the statute to hold that less than the prescribed number of shareholders or shareholders having less than the prescribed shares, though not entitled to approach the NCLT, can interfere with the management of affairs of the company by approaching the Civil Court. The Legislature having prescribed the minimum for exercising such a right, it has to be held that less than the said minimum have no right to interfere in the management - Mention in this regard may also be made of the proviso to Section 244 of the Companies Act, 2013, which though prescribing the minimum number of shares below which NCLT cannot be approached, empowers the NCLT to waive the said qualification. 35. The counsels for the plaintiff have thus been unable to lift the doubt which had arisen during the hearing on 11th July, 2019 as to the maintainability of the suit.

  The suit is dismissed with costs of ₹ 1 lacs each payable by the plaintiff to each of the two defendants.

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• 2020 (3) TMI 1315 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Memorandum of understanding - 9Seeking withdrawal of application filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) - appellant states that the settlement has been arrived at with the consent of other directors and the corporate debtor will honour all the cheques issued and will ensure that the payments due to the IRP are also promptly made - HELD THAT:- The appellant and respondent No. 1 admit the contents of the memorandum of understanding and the same are taken on record. The parties would be bound by the contents of this memorandum of understanding.

  Keeping in view paragraph 79 of the judgment in the matter of SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT], exercising powers under rule 11 of the National Company Law Appellate Tribunal Rules, 2016, we accept the memorandum of understanding and we allow the appeal and set aside the impugned order dated February 26, 2020. Respondent No. 1, original operational creditor is permitted to withdraw the application which was filed under section 9 of the IBC.

  The actions taken by the IRP/RP in consequence of the impugned order are quashed and set aside - The corporate debtor is released from the rigour of law and is allowed to function independently through its board of directors - The IRP/RP will hand back the records and management of the affairs of corporate debtor, to the board of directors.

  Appeal allowed.

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• 2020 (3) TMI 1314 - DISTRICT & SESSIONS COURT GURUGRAM
  

  Seeking grant of Bail - Territorial Jurisdiction - HELD THAT:-This court at this stage without referring to the contents of the application and reply is of view that it has came out on record that this court does not have territorial jurisdiction to try this case, being admitted between both the parties as all the firms prosecuted in this ease have not sought any ITC within revenue district Gurugram. All the firms are registered in Delhi the court of Delhi or any other court are competent to try this case. Bur certainly not the courts of Gurugram are competent to try this case. Both the patties have also intimated this court that they also wish to pursue their effective remedy before Hon’ble High Court and Hon'ble Supreme Court of India for transfer of this case.

  Keeping in view the that the accused is in jail since 07.10.2019, this court does not find it appropriate to keep the accused in jail any longer. Secondly accused Gulshan Dhingra is an old age person of more than 55 years of age and having medical history of Diabetes and Blood Pressure. Moreover there is a outbreak of Corona (Covid 19) and old persons are more prone of this virus, hence, bail application of accused Gulshan Dhingra stands allowed and accused is admitted to bail subject furnishing his bail bonds in the sum of ₹ 2 Lakhs with one surety in the like amount.

  Endorsement of compliance be made on order sheet by the concerned Ahlmad within 7 days. Now, to come up on 27.03.2020, the date already fixed.

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• 2020 (3) TMI 1313 - AUTHORITY FOR ADVANCE RULINGS — MUMBAI BENCH (INCOME-TAX)
  

  Income accrues or arises in India - contention of the assessee is that the sum would not be taxable since the shares of AIS do not derive their value substantially from asset located in India - share in a company incorporated outside India shall be deemed to be situated in India if the share or interest derives, directly or indirectly, its value "substantially" from the assets located in India - As the shares of AIS directly and indirectly derive less that 50 per cent. of their value from assets located in India, whether the income arising to the persons specified in Annexure III from the trans fer of shares in AIS to the applicant would be subject to tax in India ? - whether foreign companies cannot be assessed to tax under section 115JB of the Act? - whether Explanation 6 and Explanation 7 inserted by the Finance Act, 2015 to section 9(1)(i) of the Income-tax Act are retrospective or prospective in nature? - As the shares of AIS directly and indirectly derive less that 50 per cent. of their value from assets located in India, whether the income arising to the persons specified in Annexure III from the trans for of shares in AIS to the applicant would be subject to tax in India ? - HELD THAT:- In agreement with the view of learned authorised representative that Explanation 6 is clarificatory in nature and would apply retrospectively. Similarly, Explanation 7 inserted to address the genuine concerns of small shareholders would also apply retrospectively to give meaning in true sense and to render indirect transfer provisions contained in Explanation 5 to section 9(1)(i) of the Income-tax Act workable.

  AR has indicated that as per the valuation report obtained from the independent valuer the value of shares of AIS derived directly or indirectly from assets located in India is 26.38 per cent., i. e., less than 50 per cent. In view thereof the income from transfer of shares in the hands of transferors is not subject to tax in India.

  Applicants and Seowyan Investments are based in Cayman Islands with whom India does not have comprehensive DTAA. Also, in the case of Pacific Ace Development Limited, a resident of Hong Kong with whom the comprehensive DTAA came into force in respect of income derived in India with effect from April 1, 2019. AR had asserted that during the financial year 2013-14 both the foreign companies are not required to seek registration under the Companies Act, 2013, Companies Act, 1956 or any other law for the time being in force relating to companies in India.

  In view of the said averments by learned authorised representative and also considering the provisions of section 115JB of the Income-tax Act, the conditions laid down in section 115JB are satisfied and there is no applicability of section 115 to the above referred foreign companies. Consequently, there is no liability, the buyer applicant is not required to withhold taxes in respect to the payment made to transferor of shares.

  Revenue had questioned the valuation methodology, the Revenue may verify the computation furnished by the applicant as per rule 11UB and rule 11UC. It is reiterated that the ruling is given on matter of principle, i. e., retrospective/prospective application of Explanations 6 and 7 and based on the figures presented before us by learned authorised representative. If subsequently it is found that the figures are at variance and the actual percentage exceeds 50 per cent., the ruling would not apply and the Revenue would not be bound by such ruling. If it is found that the actual percentage is more than 50 per cent. then the Revenue may also ascertain the shareholding of each of the seller applicants at any time in 12 months preceding the date of transfer and/or the right of management or control in relation to AIS and thereafter if need be ascertain the income reasonably attributable to non-resident transferors in terms of Explanation 7(a) and 7(b) to section 9(1)(i) of the Income-tax Act. Further, if it is discovered later on that the conditions laid down in 115JB are not satisfied the transferor foreign companies would be subject to section 115JB.

  Ruling :-

  - Questions Nos. I and II - Explanations 6 and 7 to section 9(1)(i) of the Income-tax Act are clarificatory in nature and would apply retrospectively and therefore the incomes from transfer of shares in the hands of transferors are not subject to tax in India.

  - Questions Nos. III to V - Does not arise in view of reply to I and II above

  - Question No. VI - Section 115JB is not applicable to Seowyan Investments and Pacific Ace Development Limited.

  - Questions No. VII - There is no liability under section 195 of the Income-tax Act of the Moody's Analytics Knowledge Services (Jersey) Limited to withhold taxes in respect to the payment made to transferor of shares.

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