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Showing 161 to 180 of 1719 Records
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2020 (1) TMI 1563
Ex-parte order of CIT - HELD THAT:- Assessee despite having been put to notice about the hearing of the appeal had failed to comply with the same. On a perusal of the order of the CIT(A), we find that he had summarily dismissed the appeal of the assessee for non- prosecution and had failed to apply his mind to the issues which arose from the impugned order and had been assailed by the assessee before him. We are unable to persuade ourselves to accept the manner in which the appeal of the assessee had been disposed off by the CIT(A).
In our considered view once an appeal is preferred before the CIT(A), it is obligatory on his part to dispose off the appeal on merits. We are of a strong conviction that it is not open for the CIT(A) to summarily dismiss the appeal on account of non-prosecution of the same by the assessee. Rather, a perusal of Sec.251(1)(a) and (b), as well as the “Explanation‟ to Sec. 251(2) reveals that the CIT(A) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law, the CIT(A) is not vested with any power to summarily dismiss the appeal for non-prosecution. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Bombay in the case of CIT Vs. Prem Kumar Arjundas Luthra (HUF) [2016 (5) TMI 290 - BOMBAY HIGH COURT]. Appeal of assessee is allowed for statistical purposes
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2020 (1) TMI 1562
Assessment u/s 153A - Proof of valid material found in search - HELD THAT:- During the search proceedings, record relating thereto being in exclusive custody of the searching officers, it is their wish and will which prevails during the fateful period. That it is almost impossible for the assessee to adduce demonstrative evidence of exerting such pressure. The co-ordinate bench of the Tribunal SHRI BASANT BANSAL, SHRI ROOP BANSAL [2015 (7) TMI 555 - ITAT JAIPUR] while holding so, apart from relying upon various decisions of the higher courts has also relied upon the decision of the Tribunal in the case of “Dy CIT vs. Pramukh Builders” [2007 (7) TMI 638 - ITAT AHMEDABAD] wherein it has been held that even in the absence of proof of coercion or pressure, the statement by itself cannot be taken as conclusive. Therefore, merely in the absence of proof of pressure, threat, coercion or inducement the statement cannot be held as conclusive and additions cannot be made by solely relying on a statement or a letter.
CBDT Letter No.286/2/2003-IT(Inv) dated Oct 3, 2003 shows that it is in the notice of the statutory controlling body of the Income Tax Authorities that the revenue officials are used to take confessional statements from the person searched under force, pressure or threat and that is why they have made it mandatory that additions solely on the basis on such statements should not be made and that corroborative evidences should be collected or obtained before making such additions. The circular of the CBDT is binding on the revenue officials. In the facts and circumstances of this case, when seen in the light of above case laws and CBDT circular, additions in this case cannot be said to be justifiably made.
So far as the legal question raised by way of additional ground regarding contesting of the impugned addition made / despite the income being offered in the return of income is concerned, the issue is squarely covered by the decision of the Coordinate Mumbai Bench of the Tribunal in ‘Shri Pandoo P. Naig [2016 (9) TMI 1062 - ITAT MUMBAI] - Decided in favour of assessee.
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2020 (1) TMI 1561
Seeking out-of-turn hearing of the appeal - HELD THAT:- The early hearing application is allowed. List the case for hearing to 11th March, 2020. Learned counsel for the appellant further submitted that the miscellaneous application was filed for stay of recovery of the demand confirmed by the adjudicating authority. Since the EH application is allowed, the counsel contended that he is not pressing the application for stay of recovery of demand.
The stay application is, therefore, dismissed as infructuous.
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2020 (1) TMI 1560
Reopening of assessment u /s 147 - reasons for re opening were not provided to the Respondent-Assessee in spite of the same being sought by - maintainability of appeal of low tax effect - HELD THAT:- Learned counsel for the petitioner, on instructions, issued by the Department of Revenue, Ministry of Finance vide F. No. 390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this Special Leave Petition along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions.
The special leave petition and pending applications are dismissed as withdrawn, leaving question of law open.
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2020 (1) TMI 1559
Maintainability of application - initiation of CIRP - Corporate Debtor unable to liquidate its outstanding dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- This Bench is satisfied that as the principal amount has already been paid by the Corporate Debtor, the claim of the petitioner for ₹ 71,18,908.04 as interest is unconscionable, irrational, unjustified and in the opinion of this Bench does not qualify as a operational claim, default of which would entitle the petitioner to seek resolution of the Corporate Debtor. The claim for interest on the delayed payment is a disputed fact by the Corporate Debtor and as such can only be adjudicated by a court of competent jurisdiction. Initiation of Corporate Insolvency Resolution Process is certainly not an answer in the facts and circumstances of the case. Recovery of interest alone can be initiated before a civil court for its due adjudication.
Petition dismissed.
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2020 (1) TMI 1558
Territorial jurisdiction of this court - restraint from creating any charge, mortgage, etc. on immovable properties/assets - whether defendants No. 1 to 15 are bound by the relevant clause of the Purchase Agreement dated 28.04.2011 and can be restrained from creating any charge, mortgage, etc. on their immovable properties/assets as prayed? - HELD THAT:- In terms of clause 12.1 of the Purchase Agreement, the plaintiff is barred from creating any lien, pledge, etc. on their properties etc. until the bonds in question remain outstanding. The plaintiff will also cause each of its subsidiaries not to do the same regarding its properties etc. The admitted fact is that defendants No. 1 to 15 who are the subsidiaries of the plaintiff are not signatories or parties to the Purchase Agreement dated 28.04.2011. It is the plaintiff who has been enjoined to or who has to cause each of its subsidiaries not to allow any lien on its assets and properties.
Clearly, the settled legal position is that the holding company and the wholly owned subsidiary are two distinct legal entities. The holding company does not own the assets of the subsidiary - mere undertaking of a person that he will not dispose of his properties during the currency of the loan does not confer any charge on the immovable properties.
Prima facie the plaintiff merely based on the terms of the Purchase Agreement cannot restrain defendants No. 1 to 15 from dealing with their immovable assets/assets. The Purchase Agreement between the plaintiff and defendant No. 20 is not executed by defendants No. 1 to 15. There is no commitment or promise held out by defendants No. 1 to 15 to the plaintiff that the said defendants will not deal with or encumber their immovable properties. Mere execution of the Purchase Agreement dated 28.04.2011 by the plaintiff does not prima facie oblige defendants No. 1 to 15 to abide by the terms and conditions of the purchase agreement.
The plea of the plaintiff/defendant No. 20 essentially is that defendants No. 1 to 15 have made a categorical admission by their conduct including providing information in relation to its structure, future projects, financial statements, etc. to defendant No. 20 in compliance with the Purchase Agreement. It is also stated that despite knowledge of the Purchase Agreement dated 28.04.2011, none of the said defendants took steps regarding seeking a declaration that they are not bound by the terms of the said agreement - considering the nature of the transaction, the stated acts of defendants No. 1 to 15 on which reliance is placed by the plaintiff and defendant No. 20 prima facie, does not lead to a conclusion that there is Privity of Contract between defendants No. 1 to 15 and defendant No. 20/plaintiff. No such conclusion would follow merely because some interaction took place between the defendants No. 1 to 15 and defendant No. 20 whereby financial or operational details were shared. A categorical finding cannot be recorded that defendants No. 1 to 15 had by their conduct or acts committed to remain bound by the terms and conditions of the Purchase Agreement dated 28.04.2011. No doubt, a conclusive finding to the above effect based on the alleged conduct of defendants No. 1 to 15 etc. can be recorded after detailed evidence is led.
Territorial jurisdiction of this court - HELD THAT:- The agreement is executed between the plaintiff and defendant No. 20. As per Clause 20 of the Agreement, all matters arising are to be governed and construed in accordance with internal laws of the State of New York applicable to agreements. Under Clause 20.2, the courts of the State of New York and the courts of the USA in each case located in the County of New York shall have jurisdiction to settle and to hear any suit, etc. connected with the agreement - By the present suit, the plaintiff is seeking an injunction to restrain defendants No. 1 to 15 not to pledge, mortgage, etc. the movable and immovable properties without prior permission of the Receiver of the plaintiff. A declaration is also sought that the charge created in favour of defendants No. 16 to 19 be declared non-est, null and void. The suit does not seek any relief encompassed within Section 16 of CPC.
Admittedly some of the defendants have their registered office in Delhi. That apart, agreement dated 14.05.2018 with defendants No. 16 and 17 is said to have been executed in Delhi. In view of the above, at this stage, the suit cannot be returned for lack of territorial jurisdiction of this court.
Keeping in view equities in these circumstances, it would be in the interest of justice to permit defendants No. 1 to 10 to complete their pending projects and unlock the unsold inventory of assets which is lying on account of non-completion of projects - Application disposed off.
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2020 (1) TMI 1557
Disallowance made u/s. 36(1)(va) r.w.s. 43B - HELD THAT:- This addition is not sustainable as per hon'ble jurisdictional high court’s decision in CIT vs. M/s Vijay Shree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] has already decided the very issue in assessee’s favour as relied upon in the CIT(A)’s findings. We therefore affirm the CIT(A)’s findings under challenge deleting the impugned disallowance.
Addition of retention money - sole argument is that the Assessing Officer had rightly added the impugned retention money as assessee’s income going by its accounting method regularly followed - HELD THAT:- We find no merit in Revenue’s instant grievance. It has come on record that this latter issue; although a recurring one, is no more res integra between the parties since the tribunal’s order(s) in assessment years 2008-09 and 2009-10 [2017 (3) TMI 1161 - ITAT KOLKATA] have already decided the same in assessee’s favour. We wish to reiterate with the Revenue’s pleadings have nowhere sought to draw any exception on facts or law in it impugned assessment year. We therefore affirm the CIT(A)’s findings under challenge by adopting judicial consistency. The Revenue fails in its instant latter substantive grievance as well. - Decided in favour of assessee.
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2020 (1) TMI 1556
Control of records of assets of the 'Corporate Debtor', i.e. Hospital - instead of Interim Resolution Profession, the Financial Creditor i.e. Muthoot Fincorp Ltd. has taken over the control of records of assets of the Corporate Debtor, i.e. Hospital - violation of Section 18 (f) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Mr. Gautam Swarup, Advocate appears on behalf of Muthoot Fincorp Ltd.- Financial Creditor (1st Respondent). He is allowed to file reply-affidavit within a week. Rejoinder, if any, be filed within a week thereafter. Post the case For Admission (Fresh Cases) on 18th February, 2020. During the pendency of the Appeal, the Financial Creditor and the liquidator are directed not to sell the movable and immovable assets of the Company and will not transfer or alienate or create any third party interest including lease on movable or immovable property of the Corporate Debtor including the Hospital, in question. The liquidator will ensure that the Corporate Debtor (Hospital) remains a going concern and he may collate the claim and proceed in accordance with law.
If the control of the assets and records of the Corporate Debtor is with the 1st Respondent -Muthoot Fincorp Limited, it will hand over the same to the liquidator immediately failing which appropriate order may be passed including order under Section 65 of the Insolvency and Bankruptcy Code, 2016 - Application disposed off.
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2020 (1) TMI 1555
Taxability of freight charges from transportation of cargo through feeder vessels - whether freight income from transportation of cargo through feeder vessels is not eligible for benefit under Article 8 of India-Germany DTAA? - HELD THAT:- In the case of the assessee for A.Y. 2007-08 in Hapag–Llyod Container Line GMBH Vs. Addl. Director of Income-tax (International Taxation), Mumbai [2012 (5) TMI 9 - ITAT MUMBAI] keeping in view the observations of the Hon‟ble High Court in the case of Director Of Income-tax (International Taxation) Vs. Balaji Shipping U.K Ltd. [2012 (8) TMI 681 - BOMBAY HIGH COURT], had held, that the assessee would be eligible for exemption under the treaty provisions in respect of revenue that was earned by it from feeder vessels obtained on slot hire arrangement basis
We have perused the aforesaid orders and find ourselves to be in agreement with the view taken by the Tribunal in the aforesaid years in the case of the assessee. On the basis of our aforesaid observations, we are of the considered view that the benefits of Article 8 of the India-Germany DTAA would also be available to the assessee in respect of the revenue that was earned by the assessee from the feeder vessels obtained on slot hire arrangement basis. Accordingly, we set aside the order of the CIT(A) in terms of our aforesaid observations. The Grounds of appeal No. 2 to 4 raised by the assessee before us are allowed.
Agency PE in India - HELD THAT:- We are further of the view that as we have held that the benefit of Article 8 of the India– Germany DTAA would also be available to the assessee in respect of the revenue earned by it from the feeder vessels obtained on slot hire arrangements, therefore, the Grounds of appeal Nos. 5 to 7 as to whether the assessee had an agency PE in India having been rendered as academic are not being adverted to and adjudicated upon by us and are left open. The Grounds of appeal No. 5 to 7 are dismissed in terms of our aforesaid observations.
Interest levied on the assessee u/s 234B - HELD THAT:- We find, that the said issue is covered in favour of the assessee by the decision of the Hon’ble High Court of Bombay in the case of DDIT(IT) Vs. NGC Network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] as held that interest under Sec. 234B would not be applicable to a non-resident assessee.
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2020 (1) TMI 1554
Slot chartering would from a part of income from operations of ships exempt under Article 8 of the DTAA - Indo-UK DTAA - HELD THAT:- This Court in Director of Income Tax (International Taxation) v/s Balaji Shipping UK Ltd. [2012 (8) TMI 681 - BOMBAY HIGH COURT] - this Court was concerned with Article 9(1) of the Indo-UK DTAA. In the present case, Article 8 of Indo-German DTAA which is similar to Article 9(1) of the Indo-UK DTAA, arises for consideration. Therefore, the impugned order allowed the Respondent-Assessee's appeal before it by following the decision of this Court in Balaji Shipping UK Ltd. [2012 (8) TMI 681 - BOMBAY HIGH COURT]
Revenue very fairly states that the issue stands concluded in favour of the Respondent-Assessee by the decision of this Court in Balaji Shipping UK (supra).
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2020 (1) TMI 1553
Addition u/s 14A r.w.r. 8D - CIT-A deleted the addition - whether assessee’s case is not covered by the ratio of case of HDFC Bank [2014 (8) TMI 119 - BOMBAY HIGH COURT] and Reliance Utilities [2009 (1) TMI 4 - BOMBAY HIGH COURT]? - HELD THAT:- We observe that in this case the ld. CIT(A) has recorded a finding of fact that assessee’s own funds are far more than the investments in the securities and therefore no disallowance is called for in pursuant to the decision in the case of HDFC Bank (supra). Accordingly, we are inclined to uphold the order of CIT(A) on this issue by sustaining the appeal of the Revenue. - Decided against revenue.
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2020 (1) TMI 1552
The Bombay High Court dismissed the Writ Petition with liberty to file an appeal before the NCLAT, allowing the petitioner to raise all contentions, including non-compliance with National Company Law Tribunal Rules. The court did not express any opinion on the parties' contentions.
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2020 (1) TMI 1551
Creation of charge on assets which are already mortgaged - attachment of the plots for recovery of the sales tax dues - priority of charge in case of secured creditors - creation of first charge over the property which is already mortgaged in favour of a secured creditor - whether Section 48 of the Gujarat Value Added Tax Act, 2003 would apply to reduce tax, which arose under the Gujarat Sales Tax Act, 1960 or not? - HELD THAT:- The questions are no more res-integra, in view of the decision of the co-ordinate bench of this Court rendered in the case of KALUPUR COMMERCIAL CO-OPERATIVE BANK LTD. VERSUS STATE OF GUJARAT [2019 (9) TMI 1018 - GUJARAT HIGH COURT], wherein it is held that the first priority over the secured assets shall be of the Bank and not of the State Government by virtue of Section 48 of the VAT Act, 2003.
In view of the judgement cited, the respondent No.2 cannot have a prior charge over the secured assets, which have already been mortgaged much prior in point of time before the outstanding dues of the sales tax notice of the assessee i.e. M/s. Choksi Tubes in the facts of the present case.
The respondents are therefore, not entitled to continue the attachment over the property in question - respondents are directed to remove the attachment in the revenue records with regard to the properties in question - petition allowed.
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2020 (1) TMI 1550
Jurisdiction - Error in SFIO investigating offences or not - Respondent No.1 submitted that Section 436(2) of the 2013 Act only empowers the Special Court to try an offence other than an offence under the 2013 Act with which the accused may, under the Cr.P.C., be charged at the same trial - HELD THAT:- The various offences under the 2013 Act of which cognizance has been taken came into force only with effect from 12/09/2013 (Section 449) and 01/04/2014 (Section 129 and 217), whereas the underlying alleged violations at NSEL’s exchange platform have all occurred on or before 31st July 2013 as per SFIO’s own complaint filed before the learned Special Court. Prima facie, therefore, prosecution of the applicants under the 2013 Act appears to be impermissible under Article 20(1) of the Constitution of India.
As per Section 212(2) of the 2013 Act, prima facie it is seen that the SFIO has jurisdiction to investigate offence under the said Act only. Hence, the SFIO’s investigation and subsequent complaint for offences under the Indian Penal Code and under the 1956 Act prima facie appears to be without jurisdiction. A contrary interpretation would permit the SFIO to encroach upon investigating powers of other investigating agencies under other laws, which cannot be the intention of the legislature - For the same underlying transactions arising out of the NSEL payment defaults, the NSEL and others are already facing prosecution for offences under the Indian Penal Code before the learned MPID Court and the learned CBI Court, Mumbai. Similarly, for various violations under the 1956 Act discovered during inspection of NSEL by the Central Government, the NSEL and others are already facing prosecution before the learned Metropolitan Magistrate, Girgaon, Mumbai on complaints filed by the Registrar of Companies. This factual position has not been disputed by the other side.
The SFIO Investigation Report dated 31st August 2018 and the subject complaint filed by the SFIO before the learned Special Court, appear to be without jurisdiction. Impugned Order, as such, becomes vulnerable, at least prima facie, case for consideration is, as such, made out - application allowed.
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2020 (1) TMI 1549
Cancellation of Bail - principal Sessions Judge did not consider the material available on record before granting bail to the Appellants - principles of natural justice - HELD THAT:- It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in cancelling the bail.
The petition filed for cancellation of bail is both on the grounds of illegality of the order passed by the Sessions Court and the conduct of the Appellants subsequent to their release after bail was granted. The complaint filed by one Bojja Ravinder to the Commissioner of Police, Karimnagar is placed on record by Respondent No. 2. It is stated in the complaint that the Appellants were roaming freely in the village and threatening witnesses - the allegations made are vague. There is no mention about which Accused out of the 15 indulged in acts of holding out threats to the witnesses or made an attempt to tamper with the evidence.
The High Court was not right in cancelling the bail of the Appellants. The orders passed by the Sessions Judge granting bail cannot be termed as perverse. The complaint alleging that the Appellants were influencing witnesses is vague and is without any details regarding the involvement of the Appellants in threatening the witnesses - Appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1548
Preferential payment to one of the allottees - Rejection of request made by the applicant on the ground there is no recourse under law to repay this money during the CIRP period - whether the IRP or the RP, as the case may be is entitled to refund the money to any of the allottees during the CIRP period? - HELD THAT:- Once CIRP period is commenced, it has to be construed as calm period, in which, the IRP is supposed to maintain status quo position until the Resolution plan is approved or the company is sent for Liquidation.
The question of refunding allotment to one of the allottees will not arise during the CIR period, whereby this application is hereby dismissed with liberty to proceed in accordance with law.
Application disposed off.
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2020 (1) TMI 1547
Criminal Conspiracy - It is the case of the prosecution that having regard to Rule 37 of the Rules, it was incumbent upon the Appellant, before acting upon the reconstitution of the firm, to obtain the previous sanction of the State Government - HELD THAT:- The court notes that for punishing Under Section 120B of the Indian Penal Code, the prosecution is required to prove the conspiracy. The agreement, which is illegal, can be proved by necessary implication. It is to be largely proved from the inference of the illegal acts or omissions by the conspirators. The incriminating evidence collected by the prosecution, it is noted, is that the Appellant recommended issuance of MDPs in gross violation of the Act despite the office noting to the effect that the matter required legal opinion. The stand of the Appellant that he had discussed the matter with the Legal Department is seen negatived by CW21. As to his contention that many a time AMC was reconstituted and he had really discussed the matter with CW21 before directing the issue of MDPs, was found to be a matter of defence which could not be pressed at the threshold.
A matter, Under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the Appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the Appellant with various other acts and omissions which have been alleged against the first Accused in particular along with the fifth Accused and other Accused. However, the fact remains, if the defence of the Appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the Appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the Appellant to press before the court considering the application Under Section 227 of the Code of Criminal Procedure.
The inevitable consequence is that we are not persuaded to hold that the High Court was in error in the view it has taken - Appeal dismissed.
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2020 (1) TMI 1546
Seeking approval of Resolution Plan - re-negotiation over the decision of Committee of Creditors - HELD THAT:- It is a settled law that the ‘Resolution Applicant’ has no right for renegotiation or further negotiation. After submission of the ‘Resolution Plan’, if it is found in order and in accordance with Section 30(2), it is required to be placed before the ‘Committee of Creditors. The process of evaluation is guided by the said criteria as set out in the ‘Request for Resolution Plan’. If the evaluation criteria suggest that only top three ‘Resolution Applicants’ should be negotiated, the Appellant who ranked 6th among the ‘Resolution Applicants’ cannot have any right to participate for re-negotiation over the decision of the ‘Committee of Creditors’.
In COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT], the Hon’ble Supreme Court held that the commercial aspects of a ‘Resolution Plan’, its viability or otherwise, and, distribution of proceeds amongst stakeholders, were to be looked only by the ‘Committee of Creditors’ who are competent to go through all relevant aspects. Therefore, this Appellate Tribunal cannot deliberate on such issue.
In the present case, as no ground has been made out in terms of Section 61(3), we are not inclined to interfere with the ‘Resolution Plan’ of 3rd Respondent duly approved by the Adjudicating Authority - Appeal dismissed.
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2020 (1) TMI 1545
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- On perusal of the records it is found that the operational creditor failed to complete the work within the stipulated period.
On the basis of material available on record the Adjudicating Authority is of the considered view that the application is not maintainable on the ground that there is/was a pre-existing dispute prior to issuance of demand notice under section 8 of the I & B Code.
The instant application stands dismissed as not maintainable.
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2020 (1) TMI 1544
Seeking liquidation of Corporate Debtor - HELD THAT:- Since no Resolution Plan is received by this Authority under Sub-section (6) of Section 30 of the I&B Code, 2016, before the expiry of the maximum period of the Corporate Insolvency Resolution Process, the CD has to be ordered for Liquidation.
Application allowed.
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