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Showing 141 to 160 of 1328 Records
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2014 (4) TMI 1190
Scheme of amalgamation - Held that:- In view of the approval accorded by the shareholders of the Petitioner Companies, the Report filed by the Official Liquidator, Affidavit filed by the Regional Director and the Replies of the Petitioner Companies to the Reports of the Official Liquidator and the Regional Director, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391-394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.
The certified copy of the formal order sanctioning the Scheme be filed with the Registrar of Companies, NCT of Delhi and Haryana within 90 days from the sanction of the scheme. It is observed that the scheme provides that the same will be effective only on the requisite approvals from the DoT. If the approvals from the DoT are not be obtained within the specified period the same would result in the scheme not being effective. The petitioner shall take expeditious steps to obtain the approvals within the specified period of 90 days as specified above. And, the DoT shall take the necessary decision within 45 days of the petitioner complying with all necessary formalities.
The sanction order of this Court shall be binding on the shareholders and creditors of the Petitioner Companies. The Scheme has already been sanctioned by the High Court at Calcutta and High Court at Madras by orders dated 22 March 2013 and 05 June 2013 respectively. Upon the Scheme becoming effective, the Petitioner/Transferor Company No.1 and the Petitioner/Transferor Company No.2 shall stand dissolved without the process of winding up.
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2014 (4) TMI 1189
Reopening of assessment - Carry forward of unabsorbed depreciation beyond a period of eight years - Held that:- Carry forward of unabsorbed depreciation can be set off beyond the period of eight subsequent years without any set time limit. Reopening of assessment, as could be noticed from the reasons recorded particularly emphasized that the unabsorbed depreciation had been carried forward by the petitioner beyond a period of eight years resulting into the income escaping the assessment and therefore, AO at the time of issuance of the notice of reopening in absence of any judicial pronouncement on the subject may have assumed jurisdiction, when the issue is now well settled by way of judicial decisions, as discussed hereinabove, allowing continuation of such proceedings would not sub serve any purpose and therefore, by way of this writ jurisdiction, interference as requested for needs to be made quashing and notice of reassesssment and all subsequent proceedings.
The petition is allowed quashing the impugned notice and the proceedings, if any, undertaken by the respondents - Decided in favour of assessee.
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2014 (4) TMI 1188
Disallowance u/s 14A - Held That:- The disallowance of expenditure is always in relation to the claim of expenditure and it cannot be more than the claim itself. Considering the order of Delhi Benches of the Tribunal in case of Gillette Group India Pvt. Ltd. Vs ACIT, we are of the opinion that the matter should be remanded to the files of the AO to examine the expenses debited to the P&L Account and exclude the unconnected expenses for the purpose of quantifying the disallowance u/s 14A of the Act. AO shall adjudicate the issue afresh in accordance with the set principle of the law after affording a reasonable opportunity of being heard to the assessee. - Decided in favor of assessee.
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2014 (4) TMI 1187
Validity of SCN - reassessment proceedings - Rate of entry tax - leaf springs for motor vehicles - whether tax to be levied at 1% or 1.5%? - Held that: - Only show cause notice has been issued to the petitioner. The petitioner is at liberty to file detailed reply before the authority and he can raise all the contentions before the authority. Show cause notice is within the jurisdiction of the authority - in accordance with Section 21 (1) (a) of the Act of 2002, the authority has a power to initiate re-assessment proceedings, if an assessee is under assessed - the authority initiated the proceedings of re-assessment because the petitioner was under assessed.
No case is made out for quashment of SCN and re-assessment proceedings - petition dismissed.
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2014 (4) TMI 1186
Recovery of the amount due and payable by the service provider - the decision in the case of Rajat Pharmachem Ltd. Versus Union of India [2013 (12) TMI 1639 - GUJARAT HIGH COURT] contested, where it was held that it cannot be said that the impugned demand is illegal and/or arbitrary and/or without jurisdiction and authority under the law - Held that: - the decision in the above case upheld - appeal dismissed.
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2014 (4) TMI 1185
Scheme of Amalgamation - requirement of convening the meetings - Held that:- In view of the written consents/NOC obtained and averments made in the Application, the requirement of convening meetings of Equity Shareholders and Un-secured Creditors of the Applicant Transferor Company and Equity Shareholders and Preference Shareholders of the Transferee Company is dispensed with. The Applicant Transferor Company does not have any Secured Creditors.
In the present case, the Transferor Company is a wholly owned subsidiary of the Transferee Company. No new shares are proposed to be issued on amalgamation. The Transferor and Transferee Companies are not proposing any arrangement with shareholders and creditors. The present Scheme of Amalgamation will not affect rights of shareholders and creditors of the Transferor and Transferee Companies. In view of the above, the requirement of convening the meetings of the Secured and Un-secured Creditors of the Transferee Company is also dispensed with.
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2014 (4) TMI 1184
Sale of land - nature of land - whether it was a sale of agriculture land simplicitor or it was an adventure in the nature of trade? - whether the land was sold out of compulsion or out of free will? - Held that:- Judicial Member rightly observed that the land was actually cultivated throughout the period of holding by the assessee, which is evident from the fact that the agricultural income was offered for rate purpose and accepted by the Revenue. It is, therefore, difficult to appreciate the observation of the learned Accountant Member that the assessee did not take any active step to get returns from the land. The learned Accountant Member has given emphasis to the fact that the assessee sold the land within a short span out of free will.
In my considered opinion whether the land was sold out of compulsion or out of free will, will not alter the character of the transaction. Every assessee would like to make profit on a transaction, given an opportunity. In the instant case the assessee purchased the land with standing crops but ultimately sold the land tempted by the offer made by the Vedic Village Developers Pvt. Ltd. but mere sale of land on a profit cannot be a factor to conclude that the intention of the assessee was to carry on an adventure in the nature of trade. In other words, the subsequent making of profit cannot be a decisive factor. Thus, taking a holistic view of the matter, it is of the view that the learned Judicial Member had correctly come to the conclusion that the transaction was not an adventure in the nature of trade. The learned Judicial Member rightly observed that the impugned land will not fall within the purview of capital asset, being the land situated beyond the prescribed municipal limits and thus the sale proceeds thereof are not assessable to tax. For the above reasons question No. 1 is answered accordingly.
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2014 (4) TMI 1183
Enforcement of security interest - enhancement of credit limit - Held that:- Firstly, Devi Ispat had an alternate remedy to make a representation to the Bank under the provisions of Section 13(3A) of the Act and there was no reason to by-pass the statutory mechanism.
Secondly, Devi Ispat did in fact make a representation to the Bank under Section 13(3A) of the SARFAESI Act and that representation was rejected on 2nd April 2013 during the pendency of the intra court appeal. The statutory remedy having been availed of by Devi Ispat, nothing really survived in the dispute raised.
Thirdly, we now find from the written submissions submitted by the Bank that it has taken possession of the secured assets of Devi Ispat on 25th May 2013 and 27th May 2013 under the provisions of Section 13(4) of the SARFAESI Act and a possession notice has also published in the newspapers on 31st May 2013.
On the facts on record and the statutory remedy having been availed of, we see no reason to interfere with the impugned order passed by the Calcutta High Court. However, it is left open to Devi Ispat to take such appropriate steps as may be considered necessary for safeguarding its interests.
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2014 (4) TMI 1182
Rejection of Settlement Commission Application - Section 127B of the Customs Act - requirement that the application must be accompanied by a Bill of Entry or Shipping Bill in respect of which a show cause notice has been issued to the applicant - Held that: - A facial reading of the proviso (a) to Section 127B informs the Court that the applicant has to necessarily file either the Bill of Entry or the Shipping Bill in respect of the export or import of the goods (which are the subject matter of the application), with regard to which a show cause notice has been issued to him by the appropriate officer.
The proviso spelling-out no less than six conditions have to be seen as part of the entire scheme. It is not sufficient for any applicant be he an importer, exporter or other person, to merely file an application, he has to perforce file the Bill of Entry or Shipping Bill in respect of which show cause notice has been issued; likewise, the applicant has to deposit the amount accepted by him along with interest [proviso (b) and (c)]. Furthermore, the Settlement Commission has no jurisdiction in respect of cases that are pending in the Tribunal or any Court, and applications in relation to goods covered by Section 123 of the Customs Act or in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act has been committed, are not entertainable.
Upon an overall analysis of Section 127B, this Court is of the opinion that there is no merit in the petitioners’ contention that the expression ’and’ in proviso (a) has to be read disjunctively as ‘or’. The entire scheme of the provisos (a), (b) and (c) of Section 127B(1) and further provisos militate against such an interpretation. In these circumstances, the Court is satisfied that no interference with the order of the Settlement Commission is called for - petition dismissed - decided against petitioner.
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2014 (4) TMI 1181
Seniority between Income Tax Inspectors of the Income Tax Department - wilful disobedience in matter - Held that:- Chairperson of the C.B.D.T has submitted an affidavit on behalf of the respondents in which she has categorically denied any willful disobeyed in this matter. She has stated that the seniority list of ITOs working under different charge is maintained by the respective charges (CCAs). However, for the purpose of consideration of ITOs for the promotion to the grade of ACITs, all India seniority list of ITO of different charges is prepared based on the seniority list furnished by different charges. All India seniority list of ITOs as on 31-12-2011 has been prepared after collecting region-wise seniority list from CCIT (CCAs) of 18 regions. This list was placed on the website of the department calling for remarks of persons concerned. The representation received will be examined and re-cast seniority list will be placed on website of the CBDT for informing of all concerned so that any further comments can be taken care of.
Learned counsel for the respondents points out that this is huge exercise involving all regions in the country and presses that the list must perforce re-finalisation with due care in order to avoid any further error. She also submits that implementation of the order of the Hon’ble Apex Court in N.R.Parmar’s case [2012 (12) TMI 872 - SUPREME COURT] is extremely important and must handle with care. She submits that she has scale of exercise has been made it difficult for CBDT to stick to dead line given by this Tribunal. She assures so that the respondents are pursing this matter whimsy and undertake to inform the respondents of Bench of this Tribunal’s concern.
Thus we are not convinced that the respondents have willfully disobeyed our order.
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2014 (4) TMI 1180
Winding up petition - respondent company has failed and neglected to pay a sum of ₹ 2,20,320/- along with interest, due and payable to the petitioner and is thus, unable to pay its debts - Held that:- This is a case where the respondent has attempted to create a dispute only to avoid making payment to the petitioner. Shorn of the illusion that is sought to be created by the respondent by the abovementioned disputed letters, the indisputable facts are (a) that the petitioner placed an order for the machine, (b) the petitioner was obliged to pay 10% in advance and the balance 90% on dispatch of the machine, (c) that the respondent received the machine but has failed to pay the consideration for the same. The contention that since the machine had not been installed by the petitioner, the respondent is not liable to pay for the same, also cannot be accepted in view of the fact that the respondent was obliged to pay the consideration of the machine on dispatch and the question of installing the same would only arise after the payment had been effected. In the instant case, the respondent has failed to make the payment as the cheque had not been honoured on presentation.
The obligation of the respondent was to pay the entire consideration and on non-realization of the cheque the respondent was obliged to replace the same or remit the consideration through other means. However, it is apparent from the facts of the case that the respondent has deliberately avoided making payment to the petitioner. And, in absence of receiving the entire consideration, the petitioner was not liable to install the machine in question.
The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner. In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt owed to the petitioner.
In view of the above, the present petition is admitted. The petitioner is directed to publish the citation in "Statesman" (English) and "Jansatta" (Hindi). The citation be also published in Delhi Gazette for hearing to be held on 17.07.2014.The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company.
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2014 (4) TMI 1179
Interest on Non-Performing Assets - accrual of income - Held that:- Identical issue had come up before the Tribunal in the case of The Omerga Janta Sahakari Bank Ltd [2014 (12) TMI 355 - ITAT PUNE] what to talk of interest, even the principle amount itself had become doubtful to recover - In this scenario it was legitimate move to infer that interest income thereupon has not “accrued”- thus, there was no infirmity with the decision of the CIT(A) in holding that the interest income relatable on NPA advances did not accrue to the assessee – Decided against revenue.
Disallowance being amortization of premium on Government Securities - Held that:- We find the issue stands decided in favour of the assessee by the decision of the Coordinate Bench of the Tribunal in the case of Solapur Janta Sahakari Bank Ltd [2014 (1) TMI 1805 - ITAT PUNE] wherein held the Law is well settled that all the securities held by the Bank are part of the stock-in-trade irrespective of the fact how the classification is made.– Decided against revenue.
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2014 (4) TMI 1178
Penalty levied u/s. 271(1)(c) - interest free advances - CIT(A) restricting the penalty - Held that:- The interest free advances not related to business are amounting to ₹ 1,49,94,194/- and assessee has interest free funds available as capital as well as this year’s profits assessed by AO at ₹ 2,48,69,062/-, which is more than the interest free advances, there is no scope for any disallowance but now that chapter is closed and assessee has not filed any appeal against quantum addition, the penalty u/s. 271(1)(c) of the Act for concealment of income or furnishing of inaccurate particulars of income, in any case, cannot be levied. We delete the penalty confirmed by CIT(A) and levied by AO. This issue of assessee’s appeal is allowed.
Disallowance of loss on account of prize winning tickets lost by assessee - Held that:- Assessee before AO has given complete details and this fact is recorded in its ledger. The assessee has even now before us filed complete detail of loss claimed on lost prize winning tickets at ₹ 7,45,645/-. Here, we are in agreement with the findings of CIT(A) because the assessee filed complete particulars of income in its accounts filed along with the return of income and the AO in its penalty order has no where brought out that how this is a concealment. According to AO, in his penalty order, clearly says that this is a clear cut disallowance based on the facts submitted by assessee. Once this is merely a disallowance of loss, which was claimed by assessee on the basis of evidences and the AO is unable to bring out any reason for levy of penalty u/s. 271(1)(c) in his order, the same has rightly been deleted by CIT(A). - Decided in favour of assessee.
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2014 (4) TMI 1177
Entitlement for exemption under section 54F - Held that:- A perusal of the findings recorded by the CIT(A) and the Tribunal clearly spells out that the appellant had failed to comply with the statutory conditions of Section 54F of the Act. He also failed to adduce any evidence establishing the construction of new residential house. No bills or vouchers were produced by the appellant to justify his claim. Therefore, it has been rightly held that the appellant has failed to discharge the onus to prove construction of residential house and thus is not entitled for exemption under Section 54F of the Act. - Decided against assessee.
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2014 (4) TMI 1176
Maintainability of petition - requirement of pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that: - learned senior counsel for both the parties have fairly stated that we need not record any reasons for disposing of the writ petition and have agreed for this order - petition dismissed, being ineffective.
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2014 (4) TMI 1175
Claim for exemption under section 80IB(10) - requisite "completion certificate" had not been obtained and submitted - Held that:- The assessee could not establish that it has made application to the concerned authority for completion of project on 14/03/2008. In fact, we have noted that as per the documents available on page No. 109, it appears that this application dated 14/03/2008 was in respect of construction of project to be done and not for any completed project. Hence, in the facts of the present case this issue against the assessee by following the earlier Tribunal decision in assessee’s own case for assessment year 2006- 07. - Decided against assessee.
Revenue’s appeal in respect of the area of the land being one acre or not - Held that:- We find that even as per letter dated 17/01/2013, it is stated by the Assessing Officer that on this issue, the Tribunal decision dated 08/04/2010 is in favour of the assessee but since the Department has not accepted this Tribunal order and filed an appeal before Hon'ble High Court, this ground has been raised by the Revenue. Since the issue involved in the Revenue’s appeal is covered against the Revenue, we, decline to interfere in the order of learned CIT(A) on this aspect. In the result, the appeal of the Revenue is dismissed.
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2014 (4) TMI 1173
Insurance Company deducting the income tax at source - Held that:- Coming to the facts of the instant case, it is not clear from the record as to how the Tax Deductible at Source was arrived at in a sum of ₹ 19,626/-. However, at this stage, it cannot be said that the insurance company is not entitled to deduct income tax at source on the interest amount without first ascertaining whether the interest amount payable to the claimant had exceeded the prescribed limit of ₹ 50,000/- or not. Therefore, as rightly urged by the learned counsel for the revision petitioner, this Court is of the well- considered view that this is a fit case to set aside the orders of the Tribunal and remit the matter to the Tribunal to decide afresh on the requirement, if any, and the correctness or otherwise of the amount deducted at source towards income tax and then dispose of the execution petition in accordance with the procedure established by law.
Accordingly, the Civil Revision Petition is allowed and the impugned order is set aside and the matter is remitted to the Tribunal with a direction to decide the issue involved in the execution petition afresh keeping in view the legal position enunciated and thus dispose of the execution petition on merits and in accordance with the procedure established by law.
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2014 (4) TMI 1172
Disallowance of deduction u/s 80P(2)(c) - whether the activities referred to in section 80P(2)(c) of the Act includes letting out of property and rental income received as income from house property? - Held that:- As in Kottayam Co-operative land Mortgage Bank Ltd vs CIT (1987 (10) TMI 16 - KERALA High Court) found that the term “activities” referred to in section 80P(2)(c) of the Act intended to cover receipts from sources other than actual conduct of business but attributable to an activity which results in profit or gain. The Kerala High Court found that rental income received on letting out of the property cannot partake the character of profit and gains attributable to an activity carried out by the assessee society, therefore, not entitled for exemption u/s 80P(2)(c) of the Act.
Thus Letting out of the property and receipt of rental income is not an activity referred to in section 80P(2)(c) of the Act, therefore, not entitled for deduction u/s 80P(2)(c) of the Act. - Decided against assessee
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2014 (4) TMI 1171
Penalty u/s 271(1)(c) - incomes estimated from the residential projects under progress on the ground that the assessee has failed to follow the consistent method of accounting - Held that:- From the records it is established that though the assessee had estimated the income from the projects under progress in losses. However, the AO estimated the same @ 20% which was further confirmed by the ld. CIT(A). The assessee went in appeal and the ITAT directed for estimation of the income @5% of the recoveries. The assessee accordingly filed revised computation of income and assessed the same @ 5% of the recoveries as per direction of the ITAT. It was a pure case of estimation of income and not a case of concealment of income or filing of inaccurate particulars of income. The ld. CIT(A) thus rightly deleted the penalty in relation to above noted assessment years. We do not find any infirmity in the order of the ld. CIT(A) and the same is hereby upheld accordingly. - Decided against revenue
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2014 (4) TMI 1170
Revision u/s 263 - present assessment was made u/s 153A - assessee has surrendered the amount and has offered the surrendered amount by paying tax therefore - Penalty u/s 271AAA(1) not initiated - Held that:- It is not always necessary for the Assessing officer to initiate penalty proceedings if he is satisfied that the particular case is not fit for levy of penalty then the Assessing officer has powers not to initiate penalty proceedings because legislature has used the expression may in penal provision which shows that Assessing officer has discretionary power to initiate the penalty proceedings. In other words, in any such situation of not initiating penalty proceedings the Assessing officer has adopted one of the legal possible view. Whenever one of the legal possible view is adopted by the Assessing officer then such assessment order cannot be called erroneous and prejudicial to the interest of the Revenue. See Malabar Industrial Co. Ltd. v. CIT [2003] 243 ITR 83. In the case before us, the Assessing officer may be satisfied that since the assessee has surrendered the amount and has offered the surrendered amount by paying tax therefore this is not a fit case for levy of penalty and accordingly he may not have initiated penalty proceedings. Therefore such order cannot be called erroneous and prejudicial to the interest of the Revenue. - Decided in favour of assessee
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