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Case Laws
Showing 161 to 180 of 1760 Records
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2015 (9) TMI 1609
Penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - It was noticed that declaration form ST 18-A, which was mandatory, was not found with the vehicle nor produced - Held that: - order of the Tax Board cannot be sustained because the Tax Board, which is the final fact finding authority has clearly gone only on the basis that prior to 22.3.2002 the penalty could have been imposed only on the in-charge/driver of the vehicle from whom the goods were found. The Tax Board has not gone into any other issue.
The matter requires to be considered afresh as the Tax Board did not decide on merits in the light of material already on record - appeal allowed by way of remand.
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2015 (9) TMI 1608
Discretionary relief for specific performance - failure to prove agreement of sale dated 2.9.1967 - lease agreement.
Held that: - There is no dispute that even a decree for specific performance can be granted on the basis of oral contract - while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement.
However, in a case where the Plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the Plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the Plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties.
It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions.
In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the Defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under ₹ 18,000/- was paid to the Defendant-Appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff - Indisputably, various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the Plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court.
It is not a fit case where the discretionary relief for specific performance is to be granted in favour of the Plaintiff-Respondent - The High Court in the impugned judgment has failed to consider the scope of Section 20 of the Specific Relief Act and the law laid down by this Court.
Suit liable to be dismissed - appeal allowed.
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2015 (9) TMI 1607
Refund of excess duty paid - Held that: - the classification or valuation is not being contested by the assessee. It was just the case that due to ignorance/oversight, the appellant failed to claim the benefit of a notification which exempts the impugned goods from payment of duty in excess of 7.5% ad valorem - Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi [2009 (9) TMI 41 - DELHI HIGH COURT] held that when higher duties paid by inadvertence without taking benefit of a notification due to ignorance, refund claim can be filed subsequently without challenging the assessment order - appellant entitled to claim the refund without challenging the assessment.
The refund claim should be considered on merit - If the refund is found to be admissible, it should be granted to the appellant only if the appellant discharges the burden of establishing that it had not passed on the burden to any person - appeal allowed by way of remand.
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2015 (9) TMI 1606
Whether the Suit as filed is barred under the provisions of the Benami Transactions Act? - Whether the Suit is barred by limitation? - Section 9-A of the Code of Civil Procedure, 1908 - Sabita's refusal to give evidence in the matter.
Held that: - the entirety of her case, from start to finish, demands evidence. She says that after the 1995-96 Family Arrangement, the family business continued to be closely-held, and run as a joint family quasi-partnership. This needs evidence. She says that "no member of the Gopal Raheja Group ever asserted any rights independently as shareholder and/or Director but always acted in a fiduciary capacity and in trust for each other". That needs evidence.
Sabita had the opportunity to establish this fiduciary relationship, even outside the exclusions of the Benami Act, and relying on the second part of Section 4(3)(b), i.e., "other fiduciary capacity". She might have shown, say, that while assets were held in one name, the benefits or income from those assets were shared in a 23 of 27 manner inconsistent with a sole or personal holding. Sabita repeatedly refers to 'intentions', 'understandings', 'practices' and more. Of this, there is no evidence whatever. All that I have is a surmise piled on conjecture wrapped up in speculation. - the first preliminary issue must be answered in the affirmative - The suit is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988.
Time limitation - Held that: - It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC - In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arrangement, then that must surely be a starting point of limitation of this suit - it is not possible to hold in favour of the Plaintiff in the absence of necessary evidence. A mere pleading is insufficient - Without evidence, a segregation of these claims is impossible. The second issue is also answered in the affirmative. The suit is barred by limitation.
Suit dismissed.
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2015 (9) TMI 1605
Levy of service tax - renting of immovable property service - Held that: - The conduct of the assessee does not appear to be contumacious but the fact remains is that there was collection of the tax by the appellant during introduction stage of levy which was crystallized by judicial pronouncement in the case of Home Solutions Retail Ltd. Vs Union of India [2010 (5) TMI 3 - DELHI HIGH COURT] holding the levy constitutional. Therefore, he has to discharge levy of service tax liability without raising any doubt on that.
Penalty - Held that: - Penalty for intention to cause evasion does not arise in the circumstances of the case. When retrospective levy imposed an obligation which otherwise was in question, prior to the amendment of law and assessee discharged tax liability as well as liability for the default period, it would be contrary to the legal jurisdiction to penalize the person in a quasi-criminal proceeding of levy of penalty - waiver of penalty justified.
Appeal allowed in part.
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2015 (9) TMI 1604
Settlement Commission - The application has been filed for settlement of a case under Section 32E of the Central Excise Act, 1944, made applicable to service tax vide Section 83 of the Finance Act, 1994 (32 of 1994) - Held that: - The Bench finds that the applicant has not filed returns as prescribed in clause (a) of the first proviso to Section 32E(1), as made applicable to Service Tax as per Section 83 of the Finance Act, 1994. This clause states that no application shall be made unless the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner - The Bench finds that even after having been intimated that the ST-3 returns had not been filed in contradiction to the contentions in the application for settlement, the applicant has neither availed the opportunities offered to him to be heard in the matter nor explained the contradiction in his averments made in the application and the position as intimated by the jurisdictional Commissioner. Thus, the Bench considering the case record including the report received from the jurisdictional Commissioner and statement dated 7-3-2015 of the applicant, concludes that the applicant has, not only, not filed the requisite ST-3 returns, but also tried to mislead the Bench by enclosing documents purported to be ST-3 returns filed with the Department.
The applicant has not fulfilled the condition for approaching the Settlement Commission as stipulated in clause (a) of the first proviso to sub-section (1) of Section 32E of the Central Excise Act, 1944, read with Section 83 of Finance Act, 1994, and also not cooperated with the Settlement Commission in the proceedings - the Bench holds that M/s. Saujannaya Enterprises are not eligible to make an application to the Settlement Commission and consequently without going into the merits of his Service Tax liability, rejects the application for settlement filed by M/s. Saujannaya Enterprises.
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2015 (9) TMI 1603
Reopening of assessment - addition of long term capital gain - notice issues prior to recording of reasons - Held that:- AO issued the notice u/s 148 dated 19.09.2011 prior to recording of the reasons under section 148 of the Act. Therefore, the notice issued under section 148 is wholly null and void and liable to be quashed because it was not in consonance with the provisions contained under section 148(2) of the Act. The ld. DR submitted that the notice under section 148 has been served upon assessee on 23.09.2011 and there may be a typographical error in the notice under section 148 of the Act. However, no material or evidence has been produced on record to justify such a contention.
Therefore, contention of ld. DR is rejected. In view of the above, it is clear that since notice under section 148 have been issued prior to recording of the reasons, therefore, entire re-assessment proceedings have been vitiated and the same are null and void and liable to be quashed. - Decided in favour of assessee
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2015 (9) TMI 1602
Non filing the Cash Transaction Report (in short CTR) in respect of two cash transactions - Held that:- A careful consideration of the provisions as contained in Rule 3(1)(B) of the rules prescribe that banking company shall maintain the record of all transactions including the record of all series of cash transactions integrally connected to each other which has been valued below rupees ten lakh or its equivalent in foreign currency where such series of transactions have taken place within a month and Rule 7(2) of the Rules provides that the Principal Officer of the banking company shall furnish the information referred to in Rule 3(1)(B) of the Rules to Director. The provisions of Rule 3(1)(B) of the Rules clearly states in respect of all series cash transactions integrally connected to each other which have been valued below rupees ten lakh (emphasis supplied) and it does not provide that the total value of all series of integrally connected cash transactions should be over rupees ten lakh. Thus in the present case even if the service charges are excluded from consideration, the value of integrally connected cash transactions i.e. two demand drafts is ₹ 10 lakh which was valued below rupees ten lakh by splitting into two demand drafts of ₹ 2 lakh and ₹ 8 lakh and thus falls within the four corners of the provisions of Rule 3(1)(B) of the Rules.
The show cause notice was clearly on account of failure of the appellant to report cash transactions integrally connected to each other which have been valued below ₹ 10 lakh where such series of transactions have taken place within a month. Show cause notice did not say that the aggregate value of the integrally connected cash transactions is more than Rs. ten lakh.
As regards argument of the appellant that service/bank charges for issue of demand draft should be excluded from the value of transactions as it does not form part of the transactions as it is directly credited by the appellant to bank charges account and in view of the guidelines issued by the regulator RBI vide para 2.20(a)(iv) of the Master Circular, is without merits and the same cannot be sustained
Further the plea of the appellant that the above cash transactions were bona fide in nature is also without merits as the provisions of PMLA and Rules made there under does not provide any such exclusion in respect of CTR. All the cash transactions irrespective of their bona fide nature which are covered by the provisions prescribed at the relevant time as per PMLA and Rules made thereunder are to be reported in CTR and if any cash transaction is suspicious in nature then irrespective of its value, the same is also to be reported in Suspicious Transaction Report. If it were a clear and bona fide transaction, there could have been no need to split up the payment of ₹ 10 lakh to the same recipient on same day at the same time so that each component remains below ₹ 10 lakh. If such a transaction did not raise an alert, then the internal system of the bank is inadequate.
As regards argument of the appellant that in case any question arises relating to the interpretation of the Rules, the Director should have referred the matter to the Central Government for its decision under Rule 11 of the Rules, the same is without merit as there is no ambiguity in the interpretation of the Rules as propounded by the appellant bank.
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2015 (9) TMI 1601
Reopening of assessment u/s 147 - notice under Section 143(2) mandatory - Held that:- Assessment completed u/s. 147 of the Act without issuing a notice u/s. 143(2)is not a valid assessment and that provisions of section 292BB cannot cure the basic defect non issuance of 143(2)notice. In the case before us, there in evidence of service of notice issued, u/s. 143(2)of the Act, by the AO. Therefore, we are of the opinion that the FAA was not justified in holding that the order passed by the AO u/s. 147 was a valid order. Reversing his order, we decide the effective ground of appeal in favour of the assessee. As a result, appeal filed by the assessee stands allowed.
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2015 (9) TMI 1600
TPA - revenue challenges the exclusion of companies on the basis of lower or higher depreciation as a percentage of total costs and on the basis of sales either less than ₹ 5 crores or more than ₹ 50 crores - Held that:- On perusal of the order of the CIT (A) it is plain that the TPO has accepted the filter on the basis of depreciation to the total costs less than 5% and more than 50%. Taking into account that the Assessee‟s sales was in the vicinity of approximately ₹ 10 crores, the CIT (A) held that the companies having turnover of more than 50% should not be included as comparables. The decision in Chryscapital Investment (2015 (4) TMI 949 - DELHI HIGH COURT) also underscores that any one parameter cannot ipso facto be determinative of how an ALP has to be determined.
In the facts and circumstances of the present case, where the TPO has accepted both filters, i.e. the filter on the basis of depreciation to the total costs less than 5% and more than 50% as well as the turnover filter, the Assessee is right in contending, on the strength of the decision MCorp Global (P) Ltd. v. CIT, Ghaziabad (2009 (2) TMI 5 - SUPREME COURT), that the benefit granted to the Assessee by the AO, who has accepted and acted upon the report of the TPO, could not have been taken away by the ITAT.
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2015 (9) TMI 1599
CENVAT credit - Courier service - interpretation of statute - whether Courier service can be equated with the GTA Services? - Held that: - Courier service cannot be equated with the GTA Services - When appellant's case was that his documents were to be consigned "availing services of the courier", it is inconceivable how that shall be equated with the character of GTA Service. Service of courier in business being indispensable necessity, the assessee is entitled to Cenvat credit - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1598
Maintainability of application - non-speaking order - Whether in the facts and circumstances of the case, the Tribunal was justified in law in dismissing the miscellaneous application summarily as well as the appeal without dealing with the contentions raised by the appellant in the said miscellaneous application and the said order is unsustainable, being non-speaking?
Held that: - since it is submitted on behalf of the appellant that they are ready and willing to deposit a sum of ₹ 35 lakhs within a period of eight weeks from date, the impugned order passed on 25th November, 2013 is set aside and quashed - On such deposit of ₹ 35 lakhs within eight weeks from date, the Customs, Excise and Service Tax Appellate Tribunal, Kolkata shall hear the appeal preferably within eight weeks after giving an opportunity of hearing to the parties - application disposed off.
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2015 (9) TMI 1597
Scheme of arrangement for reconstruction and compromise - Held that:- The observations made by the Regional Director, Ministry of Corporate Affairs, do not survive. As come to the conclusion that the present scheme of arrangement is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned.
Prayers in terms of paragraph 27(a),(b) and (c) of the Company Petition No.287 of 2015 are hereby granted. The Restructure of share capital in form of Reorganization of Issued, Subscribed and Paid up Reference Share capital as well as utilization of Securities Premium Account as envisaged under clause 5 and 6 of the Scheme is granted and minutes drawn under Section 103(1) as referred in para 23 is hereby approved. The petition is disposed of accordingly.
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2015 (9) TMI 1596
Incremental Exports Incentivisation Scheme Objective - powers under Section 5 of the Foreign Trade (Development and Regulation) (FTDR) Act, 1992 read with para 2.1 of Foreign Trade Policy (FTP), 2009-2014 making amendments to the FTP 2009-2014 with immediate effect - Held that:- In the present case, while the earlier Notification dated 28th December, 2012 entitled an IEC holder to duty credit scrip @ 2% on the incremental growth (achieved by the IEC holder) during the period 1st January, 2013 to 31st March, 2013 compared to the period from 1st January, 2012 to 31st March, 2012 on the FOB value of exports, without any maximum limit of the duty credit scrip to which an IEC holder may thereby become entitled to, the Notification dated 25th September, 2013 restricted / limited duty credit scrip to which an IEC holder may become so entitled to 25% growth or incremental growth of ₹ 10 crores in value, whichever is less. Introduction of an outer limit to the benefit, to which a person may become entitled to, would definitely qualify as an amendment and not as a clarification. The earlier Notification dated 28th December, 2012 entitled an IEC holder to duty credit scrip @ 2% on the incremental growth and which 2% could be of any value, without any limitation whatsoever. However, vide subsequent Notification dated 25th September, 2013, the said duty credit scrip to which an IEC holder could become entitled to under the earlier Notification dated 28th December, 2012 was limited to a maximum of 25% growth or ₹ 10 crores whichever is less. Introduction of a maximum limit is by way of an amendment and can by no stretch of imagination be treated as a clarification. There was no ambiguity in the earlier Notification dated 28th December, 2012, as to the maximum amount to which an IEC holder may become entitled thereunder, to require any clarification. Moreover, the Notification dated 25th September, 2013 itself is titled as an "amendment" and describes the effect thereof also as "amendment" of the earlier Notification dated 28th December, 2012.
The petitioners are held entitled to what they may have been entitled to under the Notification dated 28th December, 2012 and without any cap and / or maximum limit. The decision of the respondents denying such benefit to the petitioners are quashed / set aside and the respondents are directed to issue the duty credit scrip to the petitioners in terms of the Notification dated 28th December, 2012 on or before 31st January, 2016.
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2015 (9) TMI 1595
Confiscation of goods u/s 111 - Freezing of bank account - Smuggling of goods - the decision in the case of M/s. Ravi Crop Science Versus Union of India & Others [2015 (4) TMI 888 - DELHI HIGH COURT] contested, where it was held that appellant has failed to explain the source of the imported goods sale proceeds whereof were credited into the bank account which has been frozen. The onus was/is on the appellant to explain the transactions in the said bank account and to establish that the said transactions were/are not tainted - Held that: - the decision in the above case upheld - appeal dismissed - decided against appellant.
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2015 (9) TMI 1594
Detention of property - property in the nature of a factory with plant and machinery - order of attachment - recovery of outstanding dues of the Customs Department - liability of last owner - The main grounds raised in the petition are that the authorities have no power under Section 142(1) of the Customs Act to take any such action. The action is otherwise arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution. The property was purchased by the petitioner by paying full sale consideration which was executed by the receiver appointed by DRT. The petitioner is, therefore, not liable to discharge any liabilities of the past owner.
Held that: - there is fair amount of commonality in the persons representing the erstwhile owner company and the present petitioner company. We may recall that the present sale deed was executed between the said two entities. One Shri Suresh Ramnani is shown to be an additional Director of the erstwhile company who of course ceased to be as such w.e.f. 30-3-2011. Ms. Kajal Suresh Ramnani, wife of Suresh Ramani, is one of the subscriber of the petitioner company. Mr. Suresh Ramnani himself is also one of the subscribers. It is also pointed out that one Mr. Prem V. Ramnani was the Director of the erstwhile company as well as the subscriber of the present company. Another person Mr. Vishandas Ramnani who is also the subscriber of the petitioner company has shown the same address as Mr. Suresh Ramnani, Additional Director of the erstwhile company. Even though, therefore, being legal entities, we may not employ the principle of lifting of the veil and treat both the companies as a clock of each other their transaction must be seen with the degree of circumspection.
There cannot be prospective dues of the outstanding taxes. It must refer to the period anterior to the date of execution of the sale deed. Even on this count, the petitioner cannot escape the liability to be answerable to the Customs Department for the past dues of the erstwhile owner. The contention of the petitioner, that the petitioner agreed to discharge only the liabilities arising after the date of the sale deed, is not in consonance with the language used in Clause 3 of Para 15 of the sale deed.
Before Section 11E was added to the Central Excise Act, the view prevailing as propounded by the Supreme Court was that in absence of any statutory recognition of a prior charge, dues of the Customs or the Central Excise Department would not prevail over the dues of the secured creditors. Section 11E of the Central Excise Act now provided that the dues of the department will have priority over the case of the secured creditors. Departmental dues would not have priority over the dues of the secured creditor. The question of applicability of Section 11E in the present case, certainly would have been one of the issues to be tackled. In this context, the question would immediately arise whether in view of Rule 9 of the Customs (Attachment) Rules, in face of the attachment imposed by the Customs Department the property could have been sold at all - However, when purchaser itself, as noted, agreed to discharge such dues, this question bales into insignificance.
There was no serious delay on part of the department so as to defeat public deeds.
The subsequent owner had agreed to discharge the dues of the erstwhile owner, the question whether it was the property of the business which was sold need not be gone into - petition dismissed - decided against petitioner.
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2015 (9) TMI 1593
Speaking to minutes for modification - Held that:- There appears to be an inadvertent error while transcribing the above quoted para:4 and the same be corrected and reads as under.
“4. 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 of Hearing of the petition on the Regional Director shall be served, at least 10 days before the date of hearing so fixed.”
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2015 (9) TMI 1592
Scheme of amalgamation - Held that:- Notice of the hearing of the petition to be advertised in English daily, “Indian Express”, Vododara Edition and Gujarati daily, “Sandesh”, Vadodara Edition, as submitted by learned advocate for the petitioner. Publication of the notice shall appear in the aforesaid newspapers, at least, 10 days before the date of hearing so fixed.
Notice of the hearing of the petition 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 394A of Companies Act, 1956. Notice shall also be issued to Official Liquidator, who if required, may appoint Chartered Accountant. Notice of the hearing of the petition on the Regional Direction and to the Official Liquidator shall be served, at least 10 days before the date of hearing so fixed.
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2015 (9) TMI 1591
Scheme of Arrangement in the nature of Amalgamation - Held that:- Meeting of the Equity Shareholders of the company was dispensed with in view of the consent letters from all of them being placed on record and there being no secured or unsecured creditors of the petitioner company; as confirmed by a certificate from the Chartered Accountant. Hence, the present petition is moved for obtaining the sanction of this Court.
Petition is ADMITTED. Petition is fixed for hearing and disposal on 15.10.2015.
Notice of hearing of petition, to be advertised in 'The Times of India', English daily, and 'Sandesh', Gujarati daily, both Ahmedabad Editions. Publication in Government Gazette is dispensed with. Common publication of notice is permitted for all the Transferor Companies.
Notice to the Official Liquidator. He is directed to file his report before the date of final hearing of the petition. For the purpose, he is permitted to appoint a Chartered Accountant out of the panel maintained by him to look into the books of the petitioner company and submit the report to the Official Liquidator, the cost for which shall be borne by the petitioner company.
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2015 (9) TMI 1589
Scheme of Arrangement in the nature of De-merger - Held that:- There are no Secured Creditors of the Applicant Company. In support of the above submission, the Certificates from the Chartered Accountant are collectively annexed as Annexure “F” confirming the status of the Equity Shareholders and Creditors of the Company as well as confirming the receipt of the consent letters from all the Equity Shareholders as well as the Creditors. It is, accordingly, prayed that the meetings of the Equity Shareholders and Unsecured Creditors is not essential for the consideration and approval of the said scheme, as required to be held under the provisions of Section 391(2) of the Companies Act, 1956.
Considering the above submissions, it is hereby held that meeting of the Equity Shareholders and Unsecured Creditors of the Applicant Company for considering and approving the proposed scheme are not necessary and are not required to be held under the provisions of Section 391(2) of the Companies Act, 1956. The same are hereby dispensed with.
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