|
Advanced Search Options
Case Laws
Showing 141 to 160 of 2028 Records
-
2019 (5) TMI 1888
Disallowance u/s 14A r.w.r. 8D - mandation of recording of satisfaction - HELD THAT:- Provisions of Section 14A(2) makes it abundantly clear that the Assessing Officer is empowered to compute the disallowance in accordance with Rule 8D of the Rules only if he is satisfied that the computation made by the assessee with respect to the expenditure incurred for earning exempt income s not appropriate or cannot be relied upon. Therefore it is mandatory for the AO to record such satisfaction as to why the computation made by the assessee is to be rejected. In the case of the assessee, it is apparent that the Ld.AO had not even ventured to examine the computation made by the assessee with respect to the expenditure incurred by the assessee for earning exempt income for all the relevant assessment years.
Disallowance u/s.36(1)(ii) being commission paid to the Managing Director of the company - HELD THAT:- As decided in AMD METPLAST P. LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [2011 (12) TMI 320 - DELHI HIGH COURT] Managing Director and in terms of the Board resolution is entitled to receive commission for services rendered to the company. It is a term of employment on the basis of which he had rendered service. Accordingly, he was entitled to the said amount. Commission was treated as a part and parcel of salary and TDS has been deducted. Managing Director was liable to pay tax on both the salary component and the commission. Payment of dividend is made in terms of the Companies Act, 1956. Dividend has to be paid to shareholders equally. This position cannot be disputed by the Revenue. Dividend is a return on investment and not salary or part thereof. Herein the consideration in the form of commission which was paid was for services rendered by him as per terms of appointment as a Managing Director. Thus addition made by the AD u/s 36 (1) (ii) is hereby deleted. - Decided in favour of assessee.
-
2019 (5) TMI 1887
Disallowance u/s 14A read with Rule 8D - HELD THAT:- Assessee has claimed by submitting the letter to the Assessing Officer and the Assessing Officer could not entertain the claim as it was not emanating from the return of income filed by the assessee. We note that the assessee may raise new grounds (for the issue which was not entertained by the AO during the appellate proceedings or before the Tribunal. We note as per the judgment of the Hon’ble Supreme Court in Goetz (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] the Assessing Officer may admit a new claim provided the assessee’s claim it by filing revised return of income and as per the judgement of Hon’ble Supreme court in Goetz (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT], ld. CIT(A) and Tribunal may admit the additional claim/ground.
We want to make it clear that the decision of Co-ordinate Bench of ITAT, Kolkata in REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] wherein it was held that it is only investment which yields dividend during the previous year that has to be considered while adjudicating the average value of investment for the purpose of rule 8D(2)(ii) and 8D(2)(iii) of IT Rules. The aforesaid view of Tribunal has been affirmed as correct by the Hon’ble Calcutta High court in GA No. 3581 of 2013 in the appeal against the order of the Tribunal in the case of REI Agro Ltd. supra.
In addition to this, we note that if the assessee has its own funds and reserve which is more than investments made by the assessee then no disallowance is attracted u/s 14A read with Rule 8D(2)(ii) of the IT Rules, for that we rely on the judgment of Hon’ble Bombay High Court in the case of HDFC Bank Ltd. vs DCIT [2016 (3) TMI 755 - BOMBAY HIGH COURT] - we direct the AO to compute the disallowance after taking into account the aforesaid judicial precedents narrated above. Therefore, statistical purposes the appeal of the assessee is treated to be allowed.
-
2019 (5) TMI 1886
Interest on amount refunded which was pre-deposited - amount was refunded within three months from the date of the communication of the CESTAT’s order - Section 35FF of the Central Excise Act as amended w.ef. 6-8-2014 - HELD THAT:- The proviso to amend Section 35FF makes it clear that in respect of any amounts pre-deposited prior to 6-8-2014 will continue to be covered by the provisions of the unamended Section 35FF. The unamended provisions provided for payment of interest only if the pre-deposit was not refunded within three months from the date of communication of the order of the appellate authority. Therefore, no interest is payable to the appellant in this case.
Appeal dismissed.
-
2019 (5) TMI 1885
Bogus LTCG - Exemption u/s 10(38) - HELD THAT:- AO mainly made addition based on theory of "Suspicious Transactions”, on the basis of report of Investigation Wing. We note that the A.O. was required to convert the suspicion into the legal evidence by way of bringing concrete and conclusive findings and material on records. Since, the Ld A.O. took no step whatsoever the suspicion remains intact and suspicion whatsoever strong cannot take the position of legal evidences.
AO as well as the Commissioner (Appeals) has been guided by the report of the investigation wing prepared with respect to bogus capital gains transactions. AO as well as the Commissioner (Appeals), have not brought out any part of the investigation wing report in which the assessee has been investigated and /or found to be a part of any arrangement for the purpose of generating bogus long term capital gains.We note that Mr. Deepak Kumar Agarwal has retracted from his statement which was taken by the DDIT (Inv). Wing Kolkata on 05.06.2015, by filing an affidavit.
Statement recorded u/s 132(4) of the Act can form basis for an assessment only if such statement relates to any incriminating evidence of undisclosed income unearthed during search. We note that in assessee`s case under consideration, the search team did not find any incriminating material therefore, addition merely on the statement recorded under section 132(4) of the Act should not be made. Therefore, based on the above facts and circumstances, we delete the addition.
Unexplained expenditure towards commission charges of sale of such shares by the operator - HELD THAT:- As already held that the transactions relating to LTCG were genuine and not the accommodation entries as alleged by the AO. Consequently, the addition is hereby directed to be deleted.
-
2019 (5) TMI 1884
Addition of provision for bad and doubtful debts u/s 36(1)(iii) - HELD THAT:- We do not hesitate to conclude that the assessee is entitled to be allowed the provision for bad and doubtful debts on the identical facts and circumstances of the case since it has debited the provision to the Profit and Loss account in respect of doubtful debts and also reduced the same amount in the balance sheet from sundry debtors – trade receivable. Such reduction from sundry debtors amounts to actual write off and hence we are of the considered opinion to delete the addition made by the authorities below. Assessee’s appeal is allowed.
-
2019 (5) TMI 1883
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - the Operational Creditors is sole proprietary firm - scope of term 'person', competent to prefer petition - HELD THAT:- A combined reading of the provisions namely Section 3(23), Section 5(20) read with Section 9 (1) shows that a petition can be preferred by a 'person' and who can be treated as an 'Operational Creditor' to whom an operational debt is owed by the Corporate Debtor and upon issue of notice of payment as provided under Section 8 of IBC, 2016 on default can come before this Tribunal by way of an application preferred under Section 9 of the Insolvency and Bankruptcy Code, 2016 - It is thus seen from the definition of a person as defined under Section 3(23) of Insolvency and Bankruptcy Code, 2016 that while an 'individual' has been included, however, there is no mention of a sole proprietary firm specifically to be treated as a person under IBC, 2016.
It is by now trite that Insolvency and Bankruptcy Code, 2016 is a separate code by itself and where there is a specific definition of word and expressions as defined in the Insolvency and Bankruptcy Code, 2016 namely IBC, 2016 the definition of a such a word or expression cannot be imported from any other Act which is also explicitly clear from a perusal of Section 3(37) of Insolvency and Bankruptcy Code, 2016.
In the present case, it is evident that a sole proprietary concern, namely M/s. Shiv Shakti Store is not competent to be considered as a 'person' to prefer a petition under Insolvency and Bankruptcy Code, 2016 and more so, as rightly pointed out by learned counsel for the Corporate Debtor that even though in the prescribed application under "AAA" Rules it specifically provides in the form under Part V of the said application the onus is to bring to the notice of this Tribunal the details of succession to the sole proprietary concern by Mr. Sanjay Rastogi who has sought to depose on behalf of the petitioner concern, no document by way of succession certificate or probate of will or letters of administration has been filed of Mr. Surendra Nath Rastogi. In any case as reasoned above, a sole proprietary concern is not a competent to file a petition in its own name as it cannot be considered as a person under the provisions of Insolvency & Bankruptcy Code, 2016.
This application should fail on this preliminary ground alone and this Tribunal is constrained to dismiss this petition - Petition dismissed.
-
2019 (5) TMI 1882
TDS u/s 195 - addition u/s 40 (a)(i) being the payment made to non resident associate enterprise - Whether Income in question accrued in India and is liable for TDS? - HELD THAT:- It can be clearly inferred that the Assessee and Associated Enterprises though being AEs, are operating on a principal to principal model and there is no ‘Principal-Agent’ relationship between JAS India and its AEs/Affiliates. From the documentary evidences depicting negotiations, quotations, contracts and exchange of e-mail correspondence between JAS India and end-customers in India along with underlying invoices which have been placed on record pursuant to our directions, it is seen that the terms of contracts with clients distinctively specify the principal-to principal relationship between the parties.
Mere use of the word ‘agency’ is not sufficient to conclude that the Assessee and the AEs do not operate on principal-to-principal basis and nomenclature is not the determinative factor. The above mentioned evidences filed clear show that JAS India has not been impelled by any instructions from AEs/Affiliates and the specific clause to this effect has been mentioned in the agreement. It has also been informed to us that above principle of 50:50 Profit Split are a widely accepted pricing formula prevalent across the global freight-forwarding industry at large.
We find that there is merit in the alternate plea of the Assessee is that since the above transactions are at arm’s length for the aforesaid year, no further attribution can be made even if PE is established. TPO’s order u/s 92CA (3) dated 26.10.2010, has been placed before us wherein no adverse inference was drawn in respect of the international transactions undertaken by the Assessee during the relevant year. It is now a settled principle that even if there is a business connection, no further income can be chargeable to tax in India on account of PE since the transaction between the Assessee and its AE has been found at arm’s length.
The payments made to non-resident are not on account of rendering any services in the nature of technical or professional services or fees for technical services or getting any income on account of royalty, albeit the nature of activities performed by the non-resident are purely business activities. The AEs are carrying on the business of freight forwarding services in their respective jurisdictions which are mirror reflection of the business activities carried on by the Assessee - As there is no ‘business connection in India’, therefore, we hold that the Assessee was not under an obligation to deduct tax u/s 195 of the Act. Correspondingly, no disallowance could be made u/s 40(a)(i) of the Act. Thus, we uphold the order of the CIT (A) and the appeal filed by the Revenue accordingly is dismissed.
Reimbursement of expenses - Allowable business expenses or not? - HELD THAT:- We find that the nature of reimbursement is of such expenses which are purely in the nature of day-to-day expenses of the business activities of the Assessee. The copy of the invoices, ledger accounts etc. have been filed before us. We find that the nature of expenses includes server maintenance Cost, netting charges, management expenses, travelling cost, insurance expense etc., which are an integral part of running of a business and for undertaking day-to-day activities. The Ld. AO/CIT(A) have not doubted the genuineness of the expenses. In fact, even the nature of the expenses stands accepted. Thus, the domain of commercial expediency cannot be entered into. We find that this issue in principle is covered in the case of S.A. Builders [2006 (12) TMI 82 - SUPREME COURT] and is directly applicable on the facts of the present case as the evidences have already been filed by the Assessee and as stated above, the expenses being reimbursed are regular business expenses. Thus, the appeal filed by the Assessee succeeds.
-
2019 (5) TMI 1881
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - applicant was reluctant towards amicable settlement - existence of debt and dispute or not - HELD THAT:- The applicant company has supplied goods suo-moto to the corporate debtor and without any purchase order, but, the same were never ever returned by the corporate debtor. That, though the corporate debtor disputed that the goods supplied by the applicant company were not as per terms and were of inferior quality, such dispute was never raised by the corporate debtor prior to issuance of demand notice. That, there are/were no communication or evidence on record to establish goods supplied by the corporate debtor were of inferior quality.
It is evident that the corporate debtor has agreed to clear the principal outstanding amount and has tried to settle the issue amicably but the applicant was reluctant. That, it will be open to the applicant to move before a court of competent jurisdiction for realisation/recovery of their dues instead of initiating resolution process which will have adverse effect on a going concern - That, keeping in mind the basic objective of the IB Code as also considering the fact that the respondent company is a going company and initiation of insolvency process will adversely affect livelihood of number of employees and their family, in the interest of natural justice, the Adjudicating Authority cannot admit the application preferred by the appellant company.
Application dismissed.
-
2019 (5) TMI 1880
Disallowance u/s 80(IA) r.w.s. 10AA(9) in giving deductions of interest on Capital and Remuneration to partners of the assessee - CIT-A deleted the addition after finding that the assessee had taken undue benefits of Section 10AA by not claiming Interest on Capital and Remuneration to partners which resulted increase in exempted profit of the assessee - whether CIT(A) is justified in not appreciating the fact that by not providing interest and remuneration to the partners, the firm has claimed higher profits leading to higher claim of deduction u/s 10AA of the Act and thus, devoiding the revenue from due amount of tax? - HELD THAT:- In the present case undisputedly in the partnership deed there is no clause providing payment of interest on capital and remuneration to the partners therefore, the ld. CIT(A) was right in denying application of order of Meridian Impex [2013 (9) TMI 605 - ITAT RAJKOT] in favour of the Revenue in the present case having distinct and dissimilar facts and circumstances
The appellant has not charged any interest and remuneration asper partnership deed therefore, the appellant firm cannot be compelled to charge interest or remuneration. Therefore, we are inclined to hold the ld. CIT(A) was right in observing that the disallowance made by the AO on account of non provision of interest and remuneration of s. 10AA of the Act deduction is erroneous and incorrect and law and facts as in the peculiar facts of the present case the partnership deed clearly lays down that no interest and remuneration is payable and hence, the first appellate authority right in deleting the disallowance made by the AO on account of non provision of interest and remuneration from amount of deduction u/s. 10AA - Decided in favour of assessee.
-
2019 (5) TMI 1879
Interpretation of the agreement in which the arbitrators’ view is final - majority award contained decisions on matters beyond the scope of the submission to arbitration - whether the amendments made in Section 34 are applicable to applications filed under Section 34 to set aside arbitral awards made after 23.10.2015? - Applicability of Section 34(2)(a)(iv) of the 1996 Act.
HELD THAT:- There is no doubt that the amendments made in Explanations 1 and 2 to Section 34(2)(b)(ii) have been made for the avoidance of any doubt, which language, however, is not found in Section 34(2A). Apart from the anomalous position which would arise if the Section were to be applied piecemeal, namely, that Explanations 1 and 2 were to have retrospective effect, being only to remove doubts, whereas sub-section (2 A) would have to apply prospectively as a new ground, with inbuilt exceptions, having been introduced for the first time, it is clear that even on principle, it is the substance of the amendment that is to be looked at rather than the form. Therefore, even in cases where, for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot be retrospective if the earlier law has been changed substantively.
A fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court.
The judgments of the Single Judge and of the Division Bench of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the Scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act - what is awarded to the appellant is the principal sum of INR 2,01,42,827/- towards price adjustment payable under sub-clause 70.3 of the contract, for the work done under the contract from September 2010 to May 2014, as well as interest at the rate of 10%, compounded monthly from the due date of payment to the date of the award, i.e., 02.05.2016, plus future interest at the rate of 12% per annum (simple) till the date of payment.
Appeal allowed - decided in favor of appellant.
-
2019 (5) TMI 1878
Determination of service tax liability - Construction of Residential Complex Service - Preferential Location and Development of Complex Services - issue sub-judiced before Apex Court - HELD THAT:- Since, the issue of legislative competence for levy for service tax on land and building is sub-judiced before the Hon’ble Apex Court, the present appeals cannot be disposed of on merits at this juncture. Thus, the matter arising out of the appeals should be remanded back to the original authority for a decision on merits, subject to ascertaining the outcome of the judgment to be delivered by the nine-judge bench of the Hon’ble Apex Court.
The appeals filed by the appellant are allowed by way of remand to the original authority for deciding the issue of levy of service tax on the impugned service, based on the judgment to be pronounced by the Hon’ble Apex Court in the aforementioned civil appeals - Appeal allowed by way of remand.
-
2019 (5) TMI 1877
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The question that arises for consideration is whether the same claim could be made the basis for filing an application under Section 7 of the Code for triggering the CIR Process. The question is no longer res integra. In, DR. VISHNU KUMAR AGARWAL VERSUS M/S. PIRAMAL ENTERPRISES LTD. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that though there is a provision to file joint application under Section 7 by the ‘Financial Creditors’, no application can be filed by the ‘Financial Creditor’ against two or more ‘Corporate Debtors’ on the ground of joint liability (‘Principal Borrower’ and one ‘Corporate Guarantor’, or ‘Principal Borrower’ or two ‘Corporate Guarantors’ or one ‘Corporate Guarantor’ and other ‘Corporate Guarantor’), till it is shown that the ‘Corporate Debtors’ combinedly are joint venture company.
The question further is as to whether the claim lodged by the petitioner-International Finance Corporation which was based on the same set of facts and documents in the holding Company namely Punj Lloyd Limited-Guarantor and that has already been admitted by Mr. Gaurav Gupta, IRP of that Company as is evident from the aforesaid list. This cannot again be raised for admission in the present proceeding - thus, on account of duplicacy of the claims the petition cannot be entertained.
Petition dismissed.
-
2019 (5) TMI 1876
Dishonor of Cheque - false and fabricated facts - illegal misuse of two blank cheques and he has filled up the amount from the account of the father of the applicant - section 138 of NI Act - HELD THAT:- It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court - The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code - Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
The applicant herein has heavily relied on the bank statement and passbook of his own account. However, whatever factual questions raised by the applicant are in a nature of defence to the complaint under Section 138(a) of the Negotiable Instruments Act. This is a case wherein the disputed questions of fact are involved. Under these circumstances, when there is disputed question of fact is involved and there is prima facie material showing that the cheques were issued by the accused to the complainant with his signature and there was monetary transaction between them, then in such case, inherent powers under Section 482 of the Code of Criminal Procedure cannot be exercised.
It is clearly found that the applicant and his father issued different cheques to the complainant and accordingly, the complainant lodged different complaints and he has also initiated civil proceedings. This shows that there is prima facie liability of payment on the part of the applicant - Application dismissed.
-
2019 (5) TMI 1875
Correct head of income - Rental Income received by the assessee on leasing properties - income from house property OR profits and gains of business/profession - HELD THAT:- Lease rental is to be paid to the lessor only after the lessor i.e assessee herein, completes all the interior, fittings and furniture works and has provided the infrastructural facilities and materials to the lessees as per Annexure – A to the agreement. Therefore, it is not mere bare structure that is provided by the assessee to the tenant on rent but it is with furniture and fixtures along with power back up and AC facility.
On perusal of the returns of income for earlier assessment years, we find that the assessee had let out properties at Hyderabad, Mumbai & Delhi, but the income from said properties is not offered during the relevant assessment year. Whether such properties were let out since they were unsold during the relevant period and whether they were sold subsequently to which, there is no rental income during the relevant assessment year is not clear from the details filed before us.
Unless the assessee is carrying on a systematic and organized activity to exploit the property commercially, it cannot be taxed as business income. We find that except for creating the infrastructure as per the requirement of the lessee, the assessee is not providing any other service during the year as is evident from the profit and loss account of the assessee for the relevant assessment year. The only expenses claimed by the assessee are interest, salaries & administrative expenses. Therefore, it is clear that the assessee’s intention is to enjoy the rental income on a long term basis by leasing out the premises and not to exploit the same commercially on short term basis.
We are inclined to accept the contentions of the assessee that the rental income is to be assessed as ‘income from house property’ as offered by the assessee and as accepted by the Revenue in the earlier years up to A.Y 2011-12. Appeal filed by the assessee is allowed.
-
2019 (5) TMI 1874
Oppression and Mismanagement - arrangement of transfer of shares - time limitation - appointment of directors in the board of the Company - increase of authorized capital - allotment of further capital by way of allotment of shares.
Time Limitation - HELD THAT:- It is on record that the petitioners have issued the requisition under 169 of the Act, 1956 to the Company on 15.09.2012 and upon the rejection of the requisition of the petitioners by the Company vide its letter dated 28.09.2012, the petitioners have filed a civil suit in OS No. 183 of 2013 before Civil Court and it is on record that the Civil Court returned the plaint stating lack of jurisdiction in view of the amendments to the Companies Act and the final order was passed on 27.11.2017. Since this petition is filed in the year 2018, the petition is not barred by limitation - the issue answered in favor of petitioners.
Transfer of Shares - HELD THAT:- It is on record that in the present petition, neither the R1 company nor the R14 and R15 have not filed the copy of the transfer deed and share certificates or the copy of the resolution passed in accordance with clause 14 of the AOA before the Tribunal to show that the shares were transferred according to the provisions of the AOA and Act. It is a fact that the original share certificates are with the petitioners and the same was produced before this Tribunal by the petitioners. Therefore, there are no hesitation to say that the petitioners have not executed any transfer deeds to R14 and R15 and Petitioner's remained as shareholders of the R1 Company. The deletion of names of Petitioner's from the Register of members is illegal, null and void - the issue is answered in favour of Petitioners.
Appointment of directors - HELD THAT:- It is a fact that the board of the directors can appoint additional directors. However, their directorship should be confirmed in the next AGM. It is held that the petitioners are only the shareholders, in case, the appointment of directors and their confirmation is brought before the AGM that comprise of the Petitioner's, there was likely hood of rejecting the same by the petitioners. It is also on record that the balance sheet and the annual Return except for the year 2011 were filed in the year 2018 and therefore it creates a suspicion as to whether the AGMs have been conducted properly - the appointment of directors is made in violation of the provisions of the Act, Hence, their appointment is illegal, null and void - Issue is answered in favor of petitioners.
Increase of authorized capital - HELD THAT:- It is on record that the same was done behind back of the Petitioners. The resolution to increase the share capital was passed without the participation of the petitioners, who are declared as shareholders of the Company, Therefore, the increase of authorized capital is also illegal and invalid. In this circumstances, the issue is answered in favour of Petitioners.
Allotment of shares - HELD THAT:- When the company is not carrying on any business, the need of the further capital is also not needed. It is a well settled principle of law that in case of private limited companies under the Indian law, existence of right to issue shares to one director may technically be there, but the question whether the right has been exercised bona fide and in the interest of the company has to be considered in the fact of each case - the issue of shares is also answered in favour of Petitioners.
The petitioners have made out a case for the interference of this Tribunal. Accordingly this Tribunal orders for the rectification of register of members with a direction to the Respondent No. 1 Company to incorporate the names of the petitioners in the Register of Members in the place of R14 and R15 - Petition disposed off.
-
2019 (5) TMI 1873
Detention of goods - appeallable order under - efficacious remedy to appeal - Section 107 of the Rule, 2017 or not - HELD THAT:- It is clear that the petitioner has challenged the penalty order against which he has an efficacious remedy under Section 107 of the Act of filing an appeal. The petitioner can raise all the plea as has been pleaded before us in the present writ petition before the competent authority in appeal, who shall consider the same and pass reasoned and speaking order in accordance to law after providing proper opportunity of hearing to the petitioner.
The petitioner is directed to move appropriate application before the competent authority for release of goods/vehicle. If such an application is moved by the petitioner, we hope and trust that the competent authority shall release the goods/vehicle on furnishing the bank guarantee to the satisfaction of the authority concerned. The said exercise shall be completed within a period of one week from the date of moving the application by the petitioner for release of goods/vehicle.
Petition disposed off.
-
2019 (5) TMI 1872
Valuation of imported goods - polyester knitted fabrics - enhancement of value - only grievance of the Revenue is that the importer has accepted the enhanced price of the goods and as such it was not open to them to challenge the enhancement by way of filing the appeals - HELD THAT:- The issue is no more res integra and stands settled by various decisions of the Tribunal. In the case of CC, DELHI VERSUS M/S MARUTI FABRIC IMPEX, M/S HANUMAN PRASAD & SONS, M/S UNIEXEL POLYCHEM PVT. LTD., M/S AVS GLOBAL AND M/S GIRIK INTERNATIONAL PVT. LTD. [2016 (5) TMI 668 - CESTAT NEW DELHI] where it was observed that acceptance of enhanced value by the assessee does not curtail his right to file an appeal against such assessment on enhanced value.
Appeal dismissed - decided against Revenue.
-
2019 (5) TMI 1871
Forging of facts for availment of certain machineries on hypothecation - specific allegation or role ascribed against present applicant or not - applicant herein was independent Director, was involved in the offence or not - HELD THAT:- The Indian Penal Code does not contemplate vicarious liability on the part of a party, who is not charged directly for commission of an offence. In the present case, the applicant herein was a non-executive/independent director of the company. He had no decision making powers and was not concerned with the day-to-day working of the said company. He was not directly involved in the loan transaction with the complainant-Corporation. Therefore, the complaint in question is required to be quashed and set aside so far as present applicant is concerned.
Considering the fact that the complaint is of 1998, the trial Court may decide the case as expeditiously as possible and preferably within a period of six months from today so far as other accused persons are concerned - application allowed.
-
2019 (5) TMI 1870
Condonation of delay in filing appeal - delay within the condonable period of thirty days or not - reasonable cause was there or not - HELD THAT:- It is the settled position of law that the Commissioner (Appeals) has limited powers in exercising his discretion as to condoning delay in filing an appeal before him and that condonation of any delay beyond ninety days (sixty plus thirty days) is forbidden - It is useful to refer to the decision of the Hon’ble High Court of Gujarat at Ahmedabad in the case of RAMESH VASANTBHAI BHOJANI VERSUS UNION OF INDIA & 2 [2017 (5) TMI 444 - GUJARAT HIGH COURT] where it was held that once there is a delay of more than ninety days in filing the appeal, the Commissioner (Appeals) has no power or authority to permit the appeal to be presented beyond such period.
In the present case, the delay sought to be condoned is within the permissible thirty-day limit and not after the expiry of thirty days. The appellant has placed on record its explanation, which is not found to be wrong and it is definitely not a case involving any deliberate or negligent act on behalf of the assessee, in causing delay - It is also the settled position that the power conferred upon the Commissioner (Appeals) to condone the delay in filing appeal is to alleviate genuine sufferings of taxpayers. He has the power and corresponding duty to exercise the same when circumstances so warrant. Thus, when a public authority has the powers to do something, he has a corresponding duty vested in him to exercise his powers.
The matter is remanded to the file of the first appellate authority to decide the case on merits by accepting the reasons for delay in filing the appeal - Appeal allowed in part and part matter on remand.
-
2019 (5) TMI 1869
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- It is pertinent to note the decision of Hon’ble Supreme Court in the case of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] where it was held that the Limitation Act applies to applications filed under section 7 and 9 of I&B Code since the inception of the I&B Code.
Admittedly, the goods were supplied under separate purchase orders that are of different dates and relate to different work sites. Also, the last payment on which the petitioner is relying upon above is for the M.P. site. The said payment would extend the limitation period, under section 18 of Limitation Act, 1963 only for the default under an agreement relating to M.P. site and not the other agreements. Therefore, it is only the claim of ₹35,50,370/-, for goods provided to M.P. site, which is within limitation and not the entire claim of ₹64,70,071/- as claimed by the Petitioner in the Petition - the claim of the Petitioner is barred by limitation. The Petitioner has claimed a total amount of ₹64,70,071/- that includes the claim which is barred by limitation as well as the claim which may not be barred by limitation.
The Petitioner cannot file a time-barred claim along with another claim that is within limitation period to make a defective claim as enforceable debt. Therefore, the claim made in the Petition as well as the Demand Notice is defective as part of it being barred by limitation and hence the Petition with a defective claim cannot be admitted - petitioner rejected.
............
|
9911796707
