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Showing 161 to 180 of 1749 Records
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2015 (9) TMI 1598 - CALCUTTA HIGH COURT
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 - GUJARAT HIGH COURT
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 - DELHI HIGH COURT
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 - SC ORDER
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 - GUJARAT HIGH COURT
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 - GUJARAT HIGH COURT
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 - GUJARAT HIGH COURT
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 - GUJARAT HIGH COURT
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 - GUJARAT HIGH COURT
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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2015 (9) TMI 1588 - GUJARAT HIGH COURT
Scheme of Arrangement in the nature of De-merger - Held that:- Meeting of the Equity Shareholders, Secured Creditors 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.
As submitted that the reduction of the capital is essentially consequential in nature and is proposed as an integral part of the proposed Scheme of Arrangement and that the same does not involve either diminution of liability in respect of unpaid share capital or payment to any shareholder of any paid-up share capital and the order of the court sanctioning the scheme shall be deemed to be an order under Section 102 of the Companies Act, 1956 confirming the reduction. It has been further submitted that the approval granted to the present scheme by the Equity Shareholders of the applicant Company in form of the consent letters include the specific consent for the proposed reduction of capital. Hence, the same be treated as the special resolution as required under Section 100 of the Companies Act, 1956. It has also been contended that the interests of the Creditors of the Applicant Company are not in any way affected by such reduction.
Considering the above submissions, the procedure described under Sections 100 and 101(2) of the Companies (Court) Rules, 1959, are not required to be undertaken and the same are dispensed with.
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2015 (9) TMI 1587 - CALCUTTA HIGH COURT
Unreasoned order of the Company Law Board - Siphoning off funds in favour of an entity controlled by those in control of the company - direction as to production of records or the substantive injunction - Held that:- The grievance of the petitioners before the CLB was that the company was fraudulently siphoning off funds in favour of an entity controlled by those in control of the company and to the prejudice of its genuine creditors, particularly the petitioners before the CLB in whose favour of the assets of the company remained charged. Such factual position was necessary to be pleaded and demonstrated for the purpose of obtaining an order of investigation. But it would be evident from, in particular, Section 247 of the Act that the ultimate purpose of the exercise is to obtain an order of investigation.
It cannot be said that an adjudication of the company’s alleged liability to the petitioners before the CLB or the company’ s alleged liability to another creditor could have been undertaken by the CLB in course of the proceedings before it. If such is the case, the CLB did not have any authority to pass the order impugned, particularly to restrain the company from making any payment to a creditor.
The constitutional scheme of things requires Courts or quasi judicial authorities to operate within the bounds of their authority. Merely because there is a complaint or some wrong-doing is alleged, is not enough for a Court or a quasi judicial authority to be excited to correct the percei ved wrong, however evil such wrong may be. It is incumbent on a Court or a quasi judicial authority to first discover the extent of its authority before embarking on an exercise of remedying the wrong complained of. If the system of Courts and quasi judicial authorit ies are to maintain order in society, they have to guard against their own indisciplin e to tread beyond the limits of their jurisdiction. The nature of the proceedings before the CLB did not permit it to issue the direction as to production of records or the substantive injunction. Neither was in aid of the ultimate reliefs that could be sought under Sections 237, 247 and 250 of the Act.
The order impugned cannot stand both because it does not give reasons in support thereof and since it appe ars, ex facie, to be in excess of the authority available to the CLB in the context of the petition before it. Thus setting aside the order impugned dated August 10, 2015 and by requesting the CLB to take up the matter afresh at the ad interim stage upon notice to the parties and pass such order as may be warranted and within the bounds of the CLB’s authority
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2015 (9) TMI 1586 - ITAT MUMBAI
TDS u/s 195 - deducting tax at source on the payments made to a Netherland Entity, M/s New Skies Satellites N.V. - royalty payment - Held that:- In view of the conclusion of fact and law in case of payee, we cannot reckon the payment as royalty in the hands of payee. Further it is also an admitted fact that the M/s New Skies Satellites NV does not have any PE in India and, therefore, even if it constitutes a business income in its hand, the same is not taxable in India under Article 7 of DTAA. Now that when this issue as of now has been settled in the case of the payee from the stage of the High Court that it does not constitute income in the hands of the payee, we accordingly, hold that assessee is not in default and was not liable to deduct TDS on such a payment u/s 195 and therefore, there is no liability of the assessee to deduct TDS on the payment made on account of purchase of satellite bandwidth capacity.
So far as arguments raised by the Special Counsel of the revenue on the issue that subsequent amendment brought in statute with retrospective effect should be considered for deciding the issue that such a payment now amounts to “royalty” and same is to be viewed afresh despite the finality of the issue in the case of the payee from the stage of the High Court, we are of the considered opinion that, it will be purely an academic exercise only. The reason being that, the assessee has liability to deduct TDS u/s 195, only when the payment of the sum in the hands of the non-resident is chargeable to tax under the relevant provisions of the Income Tax Act. Here in this case, it has already been upheld that such a sum is not chargeable to tax in India in the hands of the non-resident, that is, M/s New Skies Satellites NV by the High Court, therefore, it wholly undesirable for us, to decide that payment made by the assessee constitutes income in the hands of the payee. Accordingly, the order of the CIT(A) that assessee is not required to deduct TDS on payment made to M/s New Skies Satellites NV is upheld and consequently grounds raised by the revenue are dismissed.
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2015 (9) TMI 1585 - ITAT JAIPUR
Penalty provisions under section 271(1)(c) - unrecorded payment in respect of the land purchased by the assessee survey record and statement taken during the course of survey relied upon - Held that:- Since there was a difference of opinion between the learned Members, constituting a Division Bench of I.T.A.T., Jaipur and the Hon'ble President, I.T.A.T. nominated Shri G.D. Agrawal, Vice President as Third Member.
The Hon'ble Third Member concurred with the findings of the Hon'ble Judicial Member and held as agreeing with the finding of the Assessing Officer in the penalty order that the assessee did not disclose the correct purchase consideration of the agricultural land. The purchase price of the land was recorded at a lesser value in the regular books of account. These facts were detected by the Revenue as a result of survey at the assessee's premises. During the course of survey, the Director of the Company admitted these facts. Thus, it is a clear case where the assessee furnished incorrect particulars in the original return of income with regard to purchase price of agricultural land, value of closing stock as well as the business income. The revised return modifying the figure of purchase value of agricultural land, value of closing stock as well as business income was furnished only after the detection of these discrepancies during the course of survey. In view of above, have no hesitation to hold that on the facts and circumstances of the case, learned Judicial Member rightly proposed to sustain the penalty imposed u/s 271(l)(c). - Decided against assessee.
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2015 (9) TMI 1584 - SUPREME COURT
Ex parte interim order of temporary injunction - Maintainability of appeals filed by the Appellant Housing Board - the earlier SLP filed by the Appellant Bengal Ambuja Housing Development Ltd. was dismissed with liberty accorded to it to file appropriate petition before the High Court - order of temporary injunction - Held that:- The order of temporary injunction passed in the original suit proceedings in respect of the property in dispute without impleading either the vendors of the Appellant Housing Board or the heirs of the late Gangadas Pal to the original suit proceedings cannot be said to have a binding effect on the Appellant Housing Board. Therefore, the learned Subordinate Judge ought to have taken this aspect of the matter into consideration while directing the Superintendent of Police, South 24 Paraganas to enforce the interim order of temporary injunction against Bengal Ambuja Housing Development Ltd., which is the lease holder as the Board has granted lease hold rights in its favour to develop the property by joint venture to provide residential accommodation to the economically weaker sections of the society, which is a laudable object of the Board under the statutory provisions of the West Bengal Housing Board Act, 1972.
Thus, the aforesaid decisions of this Court upon which reliance has been placed by the learned senior Counsel appearing on behalf of some of the Plaintiffs-Respondents cannot be applied either against the Appellant Housing Board or its lessee or any other person claiming through it, as it was not a party to the proceedings and it did not challenge the said order earlier before this Court and therefore the Civil Appeals filed by it are maintainable.
Order of temporary injunction - In view of the fact that the right, title and interest upon the disputed property has been settled in favour of the vendors of the Appellant Housing Board, who are the legal heirs of the late Gangadas Pal, who was an intermediary of the land in question in terms of Section 6 of the West Bengal Estates Acquisition Act, 1953, adding of the property in question to the suit schedule property in dispute cannot be the subject matter of partition in view of the express provisions of the West Bengal Estates Acquisition Act, 1953 which excludes the jurisdiction of the civil court in respect of any rights in such estate as entry in record of rights is published. In the instant case, the names of the heirs of late Gangadas Pal were included in the record of rights in pursuance of the order passed in the Writ Petitions in connection with the Big Raiyat Case No. 5 of 1967, which order was affirmed by this Court in the case of Sulekha Pal, referred to supra.
The amendment of plaint to include the suit property of the heirs of late Gangadas Pal was done in pursuance of the order dated 07.07.2006, wherein the learned Subordinate Judge, Alipore added the land in question which has been sold to the Appellant Housing Board, to the schedule of suit lands in Title Suit No. 121 of 1962. The same is erroneous in law and therefore, liable to be set aside as the said order is not binding on the Appellant for the reasons stated supra.
a) The appeals of the Appellant Housing Board are allowed by holding that ex parte interim order of temporary injunction passed on 16.06.2006 by the learned Subordinate Judge, Alipore in Title Suit No. 121 of 1962 in respect of the property in question purchased from the legal heirs of the late Gangadas Pal who are declared as intermediaries Under Section 6 of the Act of 1953 and therefore the same are not binding on this Appellant as it is not a party to the proceedings and the Civil Court did not have the jurisdiction to deal with the said property, as per Section 57B(2)(a), (b) and (c) of the West Bengal Estates Acquisition Act of 1953.
b) Since the interim order of temporary injunction is not binding on the Appellant Housing Board and cannot be operated against them, therefore the question of enforcing the same against the Appellant Housing Board or its agents or any person claiming through it, through the jurisdictional police to help the Plaintiffs-Respondents as has been granted by the learned Subordinate Judge by his orders dated 03.07.2006 and 13.01.2010 at the request of the Plaintiffs-Respondents, does not arise.
c) In view of the appeals of the Appellant Housing Board being allowed, the appeals filed by the Bengal Ambuja Housing Development Ltd. are disposed of as they are unnecessary.
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2015 (9) TMI 1583 - ITAT MUMBAI
Disallowance u/s 14A of the Act in respect of the exempt income - Held that:- Referring to the binding judgment of the Hon’ble Bombay High Court in the case of Godrej Agrovet (2010 (9) TMI 291 - ITAT, MUMBAI ), we are of the opinion that the disallowance @ 2% of the exempt income as upheld by the Hon’ble High Court, is appropriate.
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2015 (9) TMI 1582 - CESTAT, CHENNAI
Refund claim - credit arising prior to registration, whether refundable in terms of Rule 5 of CCR? - Held that: - CENVAT credit which arose prior to registration without there being possibility of utilization thereof is refundable - the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. Commissioner [2011 (9) TMI 450 - KARNATAKA HIGH COURT] followed where it was held that Registration not compulsory for refund - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1581 - CESTAT MUMBAI
CENVAT credit - input services used for manufacture of taxable as well as exempt goods - non-maintenance of separate records - Held that: - In view of subsequent compliance with the provisions of Rule 6(3)(ii) of CCR, with the payment of credit required to be reversed along with interest, there is substantial compliance of the law - The failure if any is only procedural lapse of not filing the declaration of availing option - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1580 - CESTAT, NEW DELHI
Validity of proceedings initiated against appellant - the SCN issued to M/s. Jwala Steel Corporation, the supplier of goods are pending for adjudication - Held that: - the matter is remanded back to the concerned original authorities for passing reasoned and speaking orders, subsequent to the adjudication of the proceedings pending against M/s Jwala Steel Corporation - appeal allowed by way of remand.
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2015 (9) TMI 1579 - KARNATAKA HIGH COURT
Reduction of paid up share capital - resolution passed by special resolution dated 16.4.2015 - Held that:- The proposed set off of the accumulated losses against the paid up share capital and the write off of the amount in the securities premium account of the company are only book entries and have no financial outlay/outgo whatsoever to the shareholders of the company. The proposed reduction of the share capital will not in any way adversely affect the operation of the petitioner -company.
In the circumstances, having regard to the petition averments and the resolution passed at the Extraordinary General Meeting held on 16.4.2015, the prayer can be granted. The reduction of share capital as resolved at the Extraordinary General Meeting held on 16.4.2015 granted.
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2015 (9) TMI 1578 - CESTAT CHENNAI
CENVAT credit - Co-ordination Fee - Management Fee - denial on account of nexus - Held that: - Adjudicating authority made an exercise to analyze the agreement and the law. But he has not tested the evidence in accordance with law. Therefore, limited direction is issued to that authority to examine the relevancy of the concerned input services, if any, and also test whether the invoices issued are genuine and the service in question were used for the purpose of output service or manufacture. If integral connection and nexus is established, Cenvat credit should be allowed - appeal allowed by way of remand.
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