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Showing 161 to 180 of 1903 Records
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2015 (12) TMI 1749
Scope of assessment u/s. 153A - undisclosed income and undisclosed assets detected during search could be brought to tax - Held that:- Undisputedly, during the course of the search and seizure operation, not a single piece of paper was found relating to the transactions. Moreover, the assessee filed original return on 31.10.2004 which was revised on 29.3.2006 pursuant to survey operations and in the revised return of income, the income offered during the survey operations were offered for taxation and the assessment has been made as such vide order dated 29.12.2006.
Thus, it can be seen that there is no material found at the time of search which can be said to be an incriminating material to justify the impugned additions and it is also not the case of the Revenue that the additions have been made on the basis of the materials found at the time of search. No reason/justification in making the impugned additions. Order of the Ld. CIT(A) is accordingly set aside. The AO is directed to delete the impugned additions.
Notice issued u/s. 143(2) - Held that:- We have given a thoughtful consideration to the chronological event relating to the filing of original return of income, revised return of income and notice issued u/s. 143(2) of the Act. Admittedly, the revised return of income was filed on 30.6.2006. As per the provisions of Sec. 143(2), the notice should have been issued on or before 1.7.2007. The notice was issued on 22.8.2007. Thus, the said notice u/s. 143(2) is bad in law which means that the revised return of income was accepted as such u/s. 143(1) which also means that a completed assessment can be opened only when some incriminating material was found during the course of the search.
Levy of penalty u/s. 271(1)(c) - Held that:- Since we have held the assessment made u/s. 143(3) r.w. Sec. 153A of the Act is bad in law of even date and since we have directed the AO to delete the impugned additions, drawing support from the maxim Sublato fundaments credit Opus meaning – in the case the foundation is removed, super structure falls. Since the foundation i.e. assessment order has been removed, the super structure i.e. penalty falls. Appeal filed by the assessee is allowed.
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2015 (12) TMI 1748
Maintainability of appeal - monetary limit - Held that:- Since the tax demand in dispute in each of these departmental appeals does not exceed the limit of ₹ 10 lacs as set out by CBDT, such appeals are not maintainable. Accordingly, the ld. DRs agree that these appeals of the Department may be treated as not pressed/withdrawn and dismissed in view of the CBDT Circular.
Apropos COs, we may mention that in terms of sec 253(4) of the I.T. Act, the right thereof depends on the survival of corresponding revenue appeal. Since all these revenue appeals are withdrawn / not pressed and are consequently infructuous and do not survive; as a necessary consequence the corresponding COs will also stand dismissed as not maintainable.
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2015 (12) TMI 1747
Deduction under section 36(1)(viia) - allowability of provision made on account of Standard Assets - Held that:- The issue arising before us is identical to the issue before the Tribunal in The Cosmos Co-op. Bank Ltd. Vs. DCIT (2014 (1) TMI 1696 - ITAT PUNE) as held the impugned claim is a contingent Provision made on the basis of a percentage on the value of standard assets. The Provision does not reflect any particular debt which is doubtful or bad and it is only a general and non-specific Provision and it has been rightly classified as a contingent provision by the income-tax authorities. In-fact, the learned counsel for the assessee, at the time of hearing, fairly conceded the contingent nature of the provision and therefore the lower authorities made no mistake in disallowing the same. Thus following the same parity of reasoning, we uphold the order of CIT(A) and confirm the addition.
Disallowance of depreciation on computer and software purchased - Held that:- In view of the admission of the assessee and in the absence of any details having been furnished as to the date when the said items were put to in use, which in turn were purchased on 30.03.2007, we uphold the order of CIT(A) in denying the deduction on account of depreciation on the said items of computer expenses. Further, two of the items have been purchased in the succeeding year i.e. on 28.04.2007 and 30.06.2007. No depreciation on the said items is allowable in the hands of the assessee during the instant assessment year.
Coming to the balance items purchased by the assessee which were held to be capital expenditure by the Assessing Officer and the addition was made to that extent in the hands of assessee, the assessee has revised its claim in respect of the same that the depreciation on such capital expenditure should be allowed in the hands of assessee. We find merit in the plea of the assessee in view of the evidence furnished on record in respect of the said assets being purchased in the months of November, 2006 and February, 2007 and once the asset has held to be capital in nature, depreciation on the same as per law, is allowable. We find merit in the plea of the assessee and accordingly, direct the Assessing Officer to allow depreciation on balance asset Nos.5 to 10 totaling ₹ 12,79,240/-, The ground of appeal No.2 raised by the assessee is thus, partly allowed.
Non-allowance of loss on sale of securities - Held that:- The nomenclature of the head under which the securities are held are not decisive for the assessee bank, hence, the loss arising on sale of securities was revenue in nature and the same was allowable. We find merit in the reliance placed upon by the learned Authorized Representative for the assessee and the issue arising before us is squarely covered by the ratio laid down by the Tribunal in Latur Urban Co-op Bank Ltd. Vs. DCIT (2015 (3) TMI 920 - ITAT PUNE). Following the same parity of reasoning, we hold that loss of ₹ 235.66 lakhs is allowable in the hands of the assessee.
Disallowance on account of commission paid to Pigmy deposit agents u/s 40(a)(ia) - Held that:- In view of the second proviso to section 40(a)(ia) of the Act, where the payee has paid the taxes, the issue may be sent back to the Assessing Officer for confirmation.
Claim of deduction under section 36(1)(viia) - assessee has re -worked the deduction to be allowed to it at ₹ 18,03,42,000/-, which admittedly is not allowable in the hands of the assessee, since no provision to that extent was made - Held that:- We find support from the ratio laid down by the Pune Bench of Tribunal in Shri Mahalaxmi Co-op. Bank Ltd. Vs. ITO (2014 (1) TMI 1366 - ITAT PUNE) and in view of the concession of both the Authorized Representatives before us, we dismiss the additional ground of appeal No.1 raised by the assessee.
Recognition of interest accrued on NPAs - Held that:- The Hon’ble Bombay High Court in CIT Vs. M/s. Deogiri Nagari Sahakari Bank Ltd. [2015 (1) TMI 1218 - BOMBAY HIGH COURT] has laid down the proposition that the interest accrued on NPAs is not taxable in the hands of assessee, in view of the guidelines issued by the RBI.
TDS u/s 194A - addition u/s 40(a)(ia) - whether the provisions of section 40(a)(ia) of the Act are attracted to an expenditure, which was not payable at the close of the year - Held that:- . The Pune Benches of Tribunal have consistently taken view that the said provisions are attracted irrespective of the expenditure being paid during the year and nothing being payable at the close of the year. Hence, where the assessee had made payment on account of interest expenditure to which the provisions of section 194A of the Act are applicable, the onus was upon the assessee to deduct TDS and in absence of the same, the said expenditure is liable to the disallowed in the hands of assessee, in view of the provisions of section 40(a)(ia) of the Act. We uphold the order of CIT(A) in this regard.
Second proviso to section 40(a)(ia) inserted by the Finance Act, 2012 - Held that:- We deem it fit to restore the matter back to the file of Assessing Officer, who shall consider the plea of the assessee based on the provisions of the Act inserted by the Finance Act, 2012 w.e.f. 01.04.2013 and in line with earlier order of the Tribunal dated 06.01.2014
Depreciation on expenditure incurred on computers and software purchased in earlier years - Held that:- We find merit in the plea of the assessee, in view of the order passed in assessment year 2007-08, wherein, certain expenditure incurred by the assessee was capitalized. The Assessing Officer is directed to allow the depreciation on the items capitalized in assessment year 2007-08 on which directions have been given to allow the depreciation.
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2015 (12) TMI 1746
TDS u/s 195 - non deduction of tds on agency commission paid to non resident agent - income deemed to accrue or arise in India - Held that:- Argument of the Revenue that for non deduction of TDS, obtaining of certificate from the concerned Assessing Officer is mandatory is not acceptable. On a plain reading of the provisions contained in Chapter-XVIIB of the Act, more particularly section 195, there is no absolute liability on the part of the assessee to deduct tax at source notwithstanding that the payment is not chargeable to tax under sections 4, 5 or 9 of the Act. It is reasonable to conclude that TDS provisions are attracted only when the payment is chargeable to tax in India.
The provisions of section 195 are not applicable to the case of the assessee as no income chargeable to tax in India has arisen. The disallowance of payment of commission u/s. 40(a)(ia) of the Act is incorrect. - Decided in favour of assessee.
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2015 (12) TMI 1745
Exemption to the trust u/s 11 denied - proof of charitable activities - Held that:- Since as stated above the facts in the present case are identcial to that in the case of Hoshiarpur Improvement Trust (2015 (9) TMI 902 - ITAT AMRITSAR), respectfully following the same we hold that the assessee trust is carrying out charitable activity of advancement of public utility and the business activity carried out by it are incidental to the attainment of its main object and thus the proviso to section 2(15) is not attracted in the assessee case. We therefore hold that the assessee is entitled to claim exemption u/s 11. - Decided in favour of assessee.
Framing of assessment in the status of artificial juridical person - A.O. changed the status of the assessee from AOP to Artificial Judicial Person - Held that:- In view of the fact that we have held the assessee trust to be indulging in activities which constitute advancement of general public utility and hence charitable activities as defined u/s 2(15) of the Act, the status of the assessee shall be AOP as specified in section 164(2) of the Act. Section 164(2) states that where income is derived from property held under trust wholly for charitable or religious purposes, tax shall be charged on the taxable income if any in the status of AOP. In case of discretionary trust which are not covered u/s 164(2), the income is to be assessed in the status of individual. Thus we hold that the assessee trust be assessed in the status of “AOP” and not “Artificial Judicial Person”.
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2015 (12) TMI 1744
Provisional attachment - offence under PMLA - Held that:- The appellant has failed to show that the advance of ₹ 33 lakhs received by him from Salve Regina Charitable Trust out of proceeds of crime was returned by him to Smt. Regina Seelan and failed to show that the subject property do not confirm to the definition of proceeds of crime in accordance with the provisions of Section 2(u) of the PMLA and therefore the same is not liable to attachment under PMLA.
Therefore, for the foregoing reasons, the appeal of the appellant fails and it is therefore, dismissed. Considering the facts and circumstances, the parties are however, left to bear their own costs.
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2015 (12) TMI 1743
Revision u/s 263 - CIT-A non exercising his own discretion and judgment - Held that:- The order of the Assessing Officer may be brief and cryptic but that by itself is not sufficient reason to hold that the assessment order is erroneous and prejudicial to the interest of revenue. It is for the Commissioner to point out as to what error was committed by the Assessing Officer in taking a particular view. In the case in hand, the Commissioner of Income Tax has failed to point out error in the assessment order. For invoking revisionary powers the Commissioner of Income Tax has to exercise his own discretion and judgment. Here the Commissioner of Income Tax has invoked the provisions of section 263 at the mere suggestion of the Dy. Commissioner of Income Tax, without exercising his own discretion and judgment.
The Mumbai Bench of the Tribunal in the case of Vinay Pratap Thacker Vs. Commissioner of Income Tax (2013 (2) TMI 838 - ITAT MUMBAI) has set aside the order of Commissioner of Income Tax passed u/s. 263 on the ground that the Commissioner of Income Tax had not used his own discretion and judgment in assuming the revisional jurisdiction. - Decided in favour of assessee
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2015 (12) TMI 1742
Disallowing reimbursement of expenses to ABSC - Held that:- The assessee drew our attention to the break-up of expenditure. However, he pointed out that it could not furnish the details before the authorities below as the same had been lost in floods. Even before us, the assessee failed to furnish any document or information though pressed that whether the payment was to the foreign affiliate or it was reimbursement was a factual issue. We find no merit in the stand of the assessee in this regard in the absence of basic details to substantiate its claim, the amount in question is to be added in the hands of the assessee. Upholding the order of CIT(A), we uphold the addition - Decided against assessee.
Disallowance of Excise duty on closing stock of obsolete inventory - Held that:- We find similar issue of advance payment of Excise duty in an accounting year, which is to be adjusted as and when goods were lifted by the assessee from its factory, was held as allowable as deduction under section 43B of the Act, since the said section recognized the deduction for payment of tax, duty, etc. as allowable on payment basis. See DCIT Vs. Glaxo Smithkline Consumer Healthcare Ltd. (2007 (7) TMI 334 - ITAT CHANDIGARH). Following the same parity of reasoning, we hold that the assessee is entitled to the claim of deduction of ₹ 10,06,000/- under section 43B of the Act as the aforesaid amount admittedly, was paid before the due date of filing the return of income for the instant assessment year, as certified by the Auditor in the audit report in Annexure 7 attached to the Form No.3CD, wherein it has been certified that the amount of Excise duty paid up to date of filing the return of income, exceeded sum of ₹ 1.86 crores.
Disallowance of sales commission paid to sales agents - onus to prove - Held that:- the onus is upon the assessee to establish that the said expenditure has been incurred for the purpose of carrying on its business activities. Merely because the expenditure has been incurred by the assessee, does not entitle the assessee to the said claim without discharging his onus. In the facts of the case, the Assessing Officer made enquiries from the respective parties through Revenue Department at Mumbai and Kolkata respectively. However, no evidence whatso ever was furnished by either of the two parties in support of services provided by them to the assessee and the expenditure incurred by them vis-à-vis the said income earned by them. The assessee also did not furnish complete details in this regard and in the absence of any evidence and the onus not having been discharged by the assessee, we find no merit in the claim of the assessee.
Addition made on account of software expenses - Held that:- The assessee for the year under consideration had also claimed to have incurred the expenditure on application software. However, the claim of the assessee was rejected being of enduring nature. We find no merit in the aforesaid disallowance made by the Assessing Officer in the case of assessee in view of the nature of expenditure incurred and also in view of ratio laid down in assessee’s own case in earlier years. We uphold the order of CIT(A) in allowing expenditure incurred by the assessee on application software - Decided against revenue
Addition made to the closing stock being provision for obsolete inventory - Held that:- The assessee was consistently following the method of accounting of its obsolete inventory which has been consistently followed from year to year. Where there is recognition of the value of obsolete stock on a scientific basis, then provision made on that basis cannot be objected to by the Assessing Officer as the Department has been accepting the consistent method followed by the assessee both in the earlier and subsequent years. In view of the principle of consistency and in the absence of any evidence brought on record to dis-believe the method followed by the assessee, we find no merit in the order of Assessing Officer in this regard. Further, even the Hon’ble Supreme Court in Rotork Controls India (P) Ltd. Vs. CIT (2009 (5) TMI 16 - SUPREME COURT OF INDIA) had upheld the provision for warranty made by the said assessee in its books of account and its admissibility being on scientific basis - Decided against revenue.
Allowing the losses suffered by newly set up EOU against its other business income - entitled to claim deduction under section 10B - Held that:- In the present case, the assessee has claimed the said deduction from assessment year 2005-06. Where the option is available with the assessee to claim the deduction under section 10B of the Act from assessment year in which it commences the business and not when the plant and machinery is first put in use, we find no merit in the ground of appeal No.3b raised by the Revenue in this regard.
The assessee is entitled to set off of losses of EOU unit against the other business income, if any, assessed in the hands of assessee for the captioned assessment year. Balance loss, if any, would be carried forwar d to the succeeding years to be adjusted as per the provisions of the Act. Accordingly, the ground of appeal No.3 raised by the Revenue is also dismissed.
Computation of deduction under section 80HHC - write back of the creditors to be included as business income eligible for deduction under section 80HHCHeld that:- The issue is squarely covered in favour of the assessee, where the credit balance written back, in turn relating to purchases made by the assessee. The Hon’ble Madras High Court in CIT Vs. Abdul Rahman Inustries (2006 (12) TMI 114 - MADRAS High Court) had held that the said write back of the creditors is to be included as business income eligible for deduction under section 80HHC of the Act. The learned Departmental Representative for the Revenue before us had made an alternate plea that once the same is included in the business profits, it should also be included in the total turnover of the unit. The assessee on the other hand, submits that the Assessing Officer had restricted himself in including the same in the business profit only. We find merit in the plea of the assessee in this regard and the said item relates to purchases and is not to be included in the total turnover of the eligible unit, while computing deduction under section 80HHC of the Act
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2015 (12) TMI 1741
Disallowance u/s 14A - Held that:- As noted from the facts brought before us that loans were taken by the assessee in earlier years. It is informed that no disallowance was made in earlier years on account of interest. Thus, impliedly, it can be said that no borrowed funds have been used in acquiring tax-free investment during the year. It is further noted that onus is upon the AO to prove that interest bearing funds were used for earning tax free income. Reliance is placed in this regard on the judgment of Hon’ble Punjab & Haryana High Court in the cases of CIT vs. Hero Cycles Ltd.[2009 (11) TMI 33 - PUNJAB AND HARYANA HIGH COURT], CIT vs. Winsome Textiles [2009 (8) TMI 220 - PUNJAB AND HARYANA HIGH COURT] and CIT vs. Deepak Mittal [2013 (9) TMI 764 - PUNJAB & HARYANA HIGH Court]. Thus, viewed from any angle, the disallowance made by the AO was contrary to law and facts and therefore, the same has been rightly deleted by the Ld. CIT(A).
Treating the income earned by the assessee from hoarding, mobile tower, display of advertising hoarding from subletting hotel premises - ‘income from house property’ or ‘income from other sources’ - Held that:- It is noted that the assessee has credited income from hotel business in its profit and loss account and debited expenses with respect to running of hotel and maintenance of the hotel premises in the P & L account. In these facts, the income received from exploitation from the hotel premises in any manner should also be credited in the profit and loss account. The assessee has already debited the expenses with respect to maintenance of the hotel premises. It is clarified that the assessee is also eligible to claim of expenses incurred for earning the aforesaid income.Thus, keeping in view the peculiar facts of this case for the year under consideration, the aforesaid income is directed to be treated as ‘income from business’.
Disallowance u/s 40(a)(ia) - Held that:- As in the case of Rajiv Kumar Agrawal vs. ACIT [2014 (6) TMI 79 - ITAT AGRA] wherein it has been held that the second proviso to section 40(a)(ia) is declaratory and curative in nature, and should be given retrospective effect from the 1st April 2005. Thus, the position of law on this issue is now very clear. The other grievance of the Revenue is that evidences with regard to payment of taxes by the payees were not referred by the Ld. CIT(A) to the AO and thus, additional evidences were admitted by him in violation of Rule 46A. Thus, accepting the grievance of the Revenue in this regard, we send this issue back to the file of the AO for the limited purpose of verification of the facts with regard inclusion of income by the payees in their respective returns, and if the claim of the assessee in this regard is found to be factually correct, in that case no disallowance shall be made with regard to impugned payment of interest. Thus, this ground is allowed for statistical purposes.
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2015 (12) TMI 1740
Inadvertent typing error in Company Petition - Held that:- The above paragraph in the order dated 02.12.2015, passed in Company Petition No. 415 of 2015, shall now read as under:
“Notice of the hearing of the petition on the Regional Director shall be served, at least ten days before the date of the hearing so fixed.”
The rest of the order shall remain as it is.
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2015 (12) TMI 1739
Scheme of Amalgamation allowed - “Sandesh”, Ahmedabad Edition, as submitted by the learned advocate for the petitioner. Publication of notice shall appear in the aforesaid newspapers, at least, ten days before the date of hearing so fixed.
Notice of the hearing of the petition to be served on the Central Government through the Regional Director, ROC Bhavan, Opp. Rupal Park Society, B/h. Ankur Bus Stop, Naranpura, Ahmedabad, pursuant to Section 394 A of the Companies Act, 1956. Notice shall also be issued to the Official Liquidator, who if required, may appoint a Chartered Accountant. Notice of the hearing of the petition on the Regional Director and to the Official Liquidator shall be served, at least ten days before the date of the hearing so fixed.
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2015 (12) TMI 1738
Reopening of assessment - AO failed to provide it with a copy of the reasons recorded before completion of the order of assessment - Held that:- Formation of belief by the AO was a condition precedent as regards the escapement of tax pertaining to the relevant assessment year. Before proceeding to issue the notice under section 147 of the Act, the AO was required to form an opinion, the validity of which are supposed to sustain the formation of an opinion, which can be challenged. Though conclusive evidence is not requisite at the stage of formation of belief, it must be based on application of mind which a reasonable person would apply. In our view, the reasons recorded, as communicated to the assessee by letter dated 04.10.2012, does not remotely evidence independent application of mind as there is clearly no nexus, whatsoever, between the reasons recorded and the factual findings in the order of assessment. In these circumstances we hold that initiation of proceedings under section 147 of the Act is bad in law
Variance in the reasons recorded by the AO as provided to the assessee vide letter dated 04.10.2012 and that recorded in the order of assessment, in our view, prevented the assessee from putting up any defence in respect of the reopening of assessment under section 147 of the Act. This has clearly violated the principles of natural justice as the AO proceeded on a different premise while finalizing the order of assessment dated 25.03.2013. - Decided in favour of assessee.
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2015 (12) TMI 1737
Disallowance of excessive depreciation in respect of assets purchased from Deltron Ltd. - Held that:- As decided in assessee's own case for the assessment years 2005-06 to 2007-08 and 2009-10 [2016 (1) TMI 163 - ITAT DELHI] Assessing Officer was not justified in invoking Explanation 3 to section 43(1) of the Act on the facts and circumstances of the case of the appellant company and therefore, appellant is entitled to claim of depreciation on the actual cost as incurred by the appellant on transfer of the electronic business on going concern basis from M/s. Deltron Ltd. to the appellant company
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2015 (12) TMI 1736
Offence under PMLA Act - provisional attachment of various properties - Held that:- The arguments of the appellant that (i) the flat No. 204 was sold to Sh. Sunny Priyadarshi without receipt of any money as he had confidence on him on account of earlier transactions with him, (ii) that on the date of execution of sale deed dated 5-2-2013, he has not received any money except post-dated cheques, (iii) that the sale deed No. 2537, dated 5-2-2013 was conditional to the payment/release/honoring of the four cheques which were returned unpaid when presented for payment in bank and (iv) that since Sh. Sunny Priyadarshi has not paid the sale consideration to the appellant firm, hence, the appellant firm is owner of the said flat are not sustainable and are liable to be rejected.
Even if the arguments of the appellant that he has not received the sale consideration as all the four cheques have bounced is upheld, still the ownership of the flat No. 204 is also with Sh. Sunny Priyadarshi as all the rights in the property have been transferred by appellant to Sh. Sunny Priyadarshi through deed of absolute sale registered at No. 2537 on 5-2-2013 with the District Registrar Office, Patna. Admittedly the title suit bearing No. 541 of 2013 before the Sub-Judge-1, Patna, Bihar against Sh. Sunny Priyadarshi is pending adjudication and the competent court has not declared the above sale deed No. 2537, dated 5-2-2013 executed by the appellant in favour of Sh. Sunny Priyadarshi as null and void,’fraudulent and without consideration and Sh. Sunny Priyadarshi continues to be the owner of the above flat No. 204. Thus the appellant has no rights in the attached property flat No. 204 as claimed by him. Appeal dismissed.
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2015 (12) TMI 1735
Addition made u/s 153A/143(3) - Held that:- There is no incriminating evidence found during the course of search. Hence, as per the binding decision in Commissioner of Income Tax v. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] addition to income cannot be made in respect of items which are originally disclosed in the original assessment proceedings. Therefore we do not find any merits in this ground of appeal of the Revenue, so it is dismissed.
Unexplained income of the assessee - receipt of gifts - Held that:- Both the amounts added to the income of the assessee cannot be held to be unexplained income of the assessee, since it was a gift from the father who was the Donor and an NRI from his bank account at Singapore. So the ld. CIT (A) has rightly deleted the addition for both the years and so we uphold the order of the ld. CIT (A) and dismiss these ground of the revenue in both the assessment years.
Unexplained jewellery found with the assessee - Held that:- The value of jewellery declared is far in excess of the value of jewellery found during the course of search, which finding also could not be controverted before us by the department. The ld CIT(A) has considered individually i.e. assessee wise, the value of jewellery declared taking the rate of gold at ₹ 900/- per gram is in excess of jewellery found during the course of search. The CIT(A) rightly observes that it is not unusual for families to spend money on modification of their jewellery and very often, the bills evidencing the modification are not retained for a long period of time. However, since there was sufficient cash available with the assessee and her family, there is no reason to disbelieve her contention that the jewellery was remodeled, altered from time to time and hence the difference in description. The Assessing Officer in his assessment order and in the remand report has nowhere refuted the claim of the assessee that both in terms of value and quantity, the jewellery declared in the wealth tax return far exceed the jewellery found during the course of search. There is also no evidence that has been brought on record to prove that the jewellery seized was purchased out of undisclosed income. The reconciliation of jewellery is quite detailed and in the absence of any discrepancies found during the assessment proceedings and remand proceedings, it cannot be faulted with - Decided against revenue.
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2015 (12) TMI 1734
Bail application - smuggling - Charas and Ganja - the decision in the case of Lavkesh Singh Versus Union of India [2015 (4) TMI 1215 - ALLAHABAD HIGH COURT] contested, where it was held that the appellant No. 2 Pawan Kumar has made out a case for bail and the bail was allowed - Held that: - the decision in the above case upheld - SLP dismissed.
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2015 (12) TMI 1733
Offence under PMLA - provisional attachment orders - Held that:- The charge Sheet No. 1/2013 was filed on 25-2-2013 before the Additional Metropolitan Magistrate, Banglore which inter alia include offences under Sections 420 and 471 of Indian Penal Code against Shri John Micheal and others and provisional attachment Order No. 9/2014 was passed on 6-8-2014 which event is subsequent to 1-6-2009, therefore, following the principle laid by the Andhra Pradesh High Court in the case of V. Suryanarayan Prabhakara Gupta (2011 (8) TMI 1245 - ANDHRA PRADESH HIGH COUR) and Alive Hospitality and Food Pvt. Ltd. v. Union of India & Others (2013 (8) TMI 474 - GUJARAT HIGH COURT) and for the above stated reasons we are of the considered view that the appellants are covered by the provisions of PMLA and as the respondent had jurisdiction under the provisions of PMLA, therefore, attachment proceedings initiated by him u/s 5 of the PMLA are valid proceedings and the appeals filed by the appellants cannot be allowed on this ground.
In view of the foregoing, the challenge of the appellants to the impugned order dated 12th November, 2014 passed by the Adjudicating Authority in Original Complaint confirming provisional attachment Order fails and the appeals are dismissed.
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2015 (12) TMI 1732
Maintainability of appeal - monetary limit - Held that:- Since the tax effect in this appeal is ₹ 15,32,504/- and since the monetary limit of ₹ 20 lakhs is fixed for filing appeals before the High Court by the Department as per Circular which has been issued with retrospective effect and as Mr. Dudhoria submits that he has no written instruction from the Department for withdrawing this appeal, as the said Circular, in view of Section 119(1) is binding on the departmental authority, the appeal is treated to be dismissed as withdrawn.
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2015 (12) TMI 1731
Scheme of Arrangement in the nature of Amalgamation - Held that:- All these consent letters are annexed with the application as Exhibit' D'. Similarly, all the Secured Creditors of the applicant Company have approved the Scheme in form of written consent letters. All these consent letters are annexed with the application as Exhibit' E'. There are no Unsecured Creditors of the applicant Company as on date. The certificates confirming the status of the Shareholders and Creditors as well as the receipt of the consent letters from all the Shareholders and Secured Creditors are annexed respectively as Exhibit' F', 'F1', and 'F2'. In view of the same, dispensation is sought from convening the meetings of the Equity Shareholders and Secured Creditors of the applicant Company.
Considering the above facts and circumstances and the submissions advanced at the Bar, the same is hereby granted.
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2015 (12) TMI 1730
Scheme of Arrangement in the nature of Amalgamation - Held that:- Considering all submissions and in light of the settled legal position confirmed by various judgments referred to in the affidavit in support of the Judges' Summons, holding that separate proceedings are not necessary for the Transferee Company, being the Holding Company, it is held that in the present case, as well, separate proceedings are not required to be filed for the Transferee Company.
The attention of the Court is drawn to Paragraph 8 of the Affidavit in support of the Judges' Summons. It has been pointed out that the applicant, being a listed public limited Company, pursuant to Clause 24(f) of the Listing Agreement, the applicant Company has obtained the requisite approval from the concerned stock exchanges viz. BSE Limited and National Stock Exchange of India Limited. A copy of each of them have been placed on record as Exhibit 'E'. However, in light of the fact that no shares are being issued by the said Company pursuant to the proposed scheme, the compliance of Clause 5.16(a) is not necessary for the applicant Company. The applicant Company has already submitted the requisite Undertaking and the Auditor's Certificate to the SEBI. A copy of which is annexed herewith as Exhibit' F' for immediate reference. In light of the facts and circumstances, the applicant Company shall not be required to undertake the procedure of Postal Ballot and voting for seeking approval from the Public shareholders.
In view of the same, the rights and interests of the creditors of the Transferee Company shall not be prejudicially affected and the Scheme does not envisage any arrangement with the creditors of the Transferee Company. It has been further submitted that notwithstanding the above referred contention, the approval to the Scheme has been obtained from all the Secured Creditors of the Transferee Company in compliance with the contractual terms of the loan agreements. The said consent letters are placed on record as Exhibit' H' and the same has been substantiated by the Certificate from the Chartered Accountant placed on record as Exhibit' I'. In light of the same, dispensation is sought for the meetings of the Creditors vide prayer (e) of the Judges' Summons.
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