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Showing 181 to 200 of 2855 Records
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2015 (10) TMI 2685
Scheme of Amalgamation - Held that:- The requirements of the provisions of sections 391 to 394 of the Companies Act, 1956 are satisfied. The Scheme is genuine and bonafide and in the interest of the shareholders and creditors. I, therefore, accordingly allow the Company Petitions and approve the Scheme. The Scheme is hereby sanctioned. Prayers made in the respective Company Petitions are hereby granted.
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2015 (10) TMI 2684
Contravention of Sections 7 and 8 of FEMA, 1999 read with Regulations 3, 8, 9 and 13 of Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 involving export value of US $ 8,67,275.20 - unrealised GRI forms the authorized dealer had not contacted the Enforcement Directorate - Held that:- Since a period of almost 15 years has passed since the transactions took place and the RBI permitted authorized dealer to allow write off in respect of the two disputed GRI forms also subject to obtaining no objection however the authorized dealer did not approach the Enforcement Directorate. In our estimation there must have been some degree of satisfaction that is why approval to the authorized dealer to grant write off subject to certain conditions was allowed, the situation remains that the write off in respect of the two transactions through two disputed GRI forms has not been finally allowed.
The contravention of Section 8 of FEMA, 1999 against the appellant company and the appellant G. Rama Raju, Managing Director r/w Section 42(1) of FEMA is made out. Since the amount of penalty imposed against the company as well as against the appellant G. Rama Raju, Managing Director has been imposed without assigning any reason for determination of the amount, therefore considering the long gap of the alleged contravention in our opinion the ends of justice will be met if the penalty of ₹ 40 lakhs imposed against the company M/s. Siris Ltd. is reduced to ₹ 30 lakhs while the penalty of ₹ 5 lakhs imposed against G. Rama Raju is reduced to ₹ 3 lakhs and the order of the Adjudicating Officer regarding imposition of penalty against appellant G. Subha Raju, Executive Director appellant is set aside.
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2015 (10) TMI 2683
Scheme of amalgamation - Held that:- As perused the scheme filed in the company petitions and find it beneficial to the working of the transferee company and is in the interests of the transferor company. There is no objectionable feature in the scheme of amalgamation detrimental either to the employees of the transferor company or to the transferee company. The said scheme is not violative of any statutory provisions. The scheme is fair, just, sound and is not against any public policy or pubic interest. No proceedings are pending under the Companies Act, 1956 or 2013. All the statutory provisions are complied with.
Consequently, there shall be an order approving the scheme of amalgamation of the transferor company M/s.Polaris Banyan Holding Private Limited, petitioner with the transferee company M/s.AAUM Holding (India) Private Limited, petitioner as provided in Annexure - 8 in these Company Petitions, with effect from 01.04.2014, as the procedure laid down under Sections 391 to 394 of the Companies Act are duly complied with. The petitions are allowed.
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2015 (10) TMI 2682
Addition on account of unexplained credit - treating the sum as unexplained money of the assessee partnership firm - non commencement of business - AY 2006-07 - Held that:- In the cases of 35 persons, loans have been returned after TDS and in some cases, Form 15H was filed where no tax have been deducted. Since no business activity has commenced in the year under consideration and the commercial production started on April 11, 2006 would clearly prove on record that the assessee was at pre-operative stage, i.e., for installing the plant for the purpose of manufacturing. Therefore, both the decisions in the cases of CIT v. Bharat Engineering and Construction Co. [1971 (9) TMI 14 - SUPREME Court] and Roshan Di Hatti v. CIT [1977 (3) TMI 3 - SUPREME Court] would squarely apply in favour of the assessee and would prove that the assessee has not earned any undisclosed income so as to make addition under section 68 of the Income-tax Act.
As regards the addition on account of 11 creditors it is clear that no addition on account of unexplained credit could be made against the assessee of the aforesaid sum because the assessee was in the process of installing the plant and has not commenced any business activities. Therefore, there is no need to discuss all the evidences in detail on record for the purpose of examining the creditworthiness of the creditors and genuineness of the transaction in the matter in the light of the case law relied upon by learned counsel for the assessee.
No justification to sustain the addition under section 68 of the Income-tax Act as is made by the Assessing Officer and confirmed by CIT(Appeals). We, accordingly, set aside the orders of the authorities below and delete the additions of ₹ 1,00,10,664 and ₹ 19,55,000. - Decided in favour of assessee.
For assessment year 2007-08 held that the issue is same as have been considered in preceding assessment year 2006-07, except that in the year under consideration, the assessee started commercial production of the unit and has therefore, started business activities on April 11, 2006. The assessee has taken loans from April, 2006 to October, 2006 as per the summary of the loan filed by learned counsel for the assessee and reproduced above. The same is supported by the complete details of loans received date-wise in the year under consideration. It is, therefore, clear that the assessee has raised the above loans during six months from the date of commencement of the production and business, i.e., from May, 2006 to October, 2006. In the case of CIT v. Bharat Engineering and Construction Co. [1971 (9) TMI 14 - SUPREME Court] the loans/cash credits were taken after commencement of the business in May, 1943 up to March 15, 1944, i.e., 11 months and additions have been deleted. - Decided in favour of assessee.
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2015 (10) TMI 2681
Scheme of Amalgamation in the nature of merger - dispensation of meetings - Held that:- The meetings of Secured Creditors and Unsecured Creditors of the applicant company shall be convened and held at the Registered Office of the Company, on 10.12.2015 at 11.00 a.m. and 12:00 noon respectively for the purpose of considering, and if thought fit, approving, with or without modifications, the Compromise or Arrangement proposed to be made between the said Companies.
That at least 21 clear days before the day appointed for the meetings, an advertisement convening the same and stating that copies of the said arrangement and of the statement required to be furnished pursuant to Section 393 and forms of proxy can be obtained free of charge at the registered office of the company or at the office of their advocate, be inserted once in each dailies viz. Gujarati Daily ‘Sandesh’ and English Daily ‘Times of India”, both Baroda Editions.
That in addition, at least 21 clear days before the meetings to be held as aforesaid, a notice convening the said meetings at the place and time aforesaid, together with a copy of the said compromise or arrangement, a copy of the statement required to be sent under Section 393 and the prescribed form of proxy, shall be sent by prepaid letter post addressed to Secured Creditors and Unsecured Creditors at the registered or last known addresses.
Voting by proxy to be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the company at the above address not later than 48 hours before the meetings.
That the value of debt of each of the secured and unsecured creditors shall be in accordance with the books of the company and, where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meetings.
And it is further ordered that the Chairman reports to this Court result of the said meetings within 21 days of the conclusion of the meetings, and the said reports shall be verified by his affidavit.
The publication of the notice in the official gazette is ordered to be dispensed with. In view of the fact that the consent of all the equity shareholders are obtained and produced on record, the meeting of the equity shareholders is ordered to be dispensed with.
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2015 (10) TMI 2680
Scheme of Amalgamation - appropriate orders for convening and holding meetings of Secured Creditors and Unsecured Creditors of the applicant company of approving the Scheme - Held that:- The meetings of Secured Creditors and Unsecured Creditors of the applicant company shall be convened and held at the Registered Office of the Company, on 10.12.2015 at 1.00 p.m. and 2:00 p.m. respectively for the purpose of considering, and if thought fit, approving, with or without modifications, the Compromise or Arrangement proposed to be made between the said Companies.
That at least 21 clear days before the day appointed for the meetings, an advertisement convening the same and stating that copies of the said arrangement and of the statement required to be furnished pursuant to Section 393 and forms of proxy can be obtained free of charge at the registered office of the company or at the office of their advocate, be inserted once in each dailies viz. Gujarati Daily ‘Sandesh’ and English Daily ‘Times of India”, both Baroda Editions.
That the quorum for the meetings of the Secured Creditors and Unsecured Creditors shall be 2 and 5 respectively.
That voting by proxy to be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the company at the above address not later than 48 hours before the meetings.
That the value of debt of each of the secured and unsecured creditors shall be in accordance with the books of the company and, where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meetings.
And it is further ordered that the Chairman reports to this Court result of the said meetings within 21 days of the conclusion of the meetings, and the said reports shall be verified by his affidavit.
In view of the fact that the consent of all the equity shareholders are obtained and produced on record, the meeting of the equity shareholders is ordered to be dispensed with.
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2015 (10) TMI 2679
Proceeding and investigation initiated under Prevention of Money Laundering Act - is the offence under PMLA is cognizable offence or it is non-cognizable offence? - Held that:- The offence under PMLA is cognizable.
In the present case the offence is registered under PMLA. Under the provisions of PMLA, the investigating officers are not the police officers but since for investigation of offence Provisions of Criminal Procedure Code are held to be applicable, therefore, they are required to follow the same. Keeping in view the provisions of section 65 of PMLA and also the fact that there is no procedure prescribed in PMLA for investigation of the offence, it is of the opinion that the procedure which has been prescribed under the Criminal Procedure Code is required to be followed while investigating the offence under PMLA.
Whether the Court of Additional Sessions Judge is the Special Court within the meaning of section 43 of PMLA? - Held that:- Section 43 of PMLA empowers Central Government to designate one or more Courts of Sessions as Special Court or Special Courts for notified areas and places for trial of the offences punishable under section 4. The Central Government vide Notification dated 1-6-2006 issued under section 43(1) of the PMLA has designated the Courts of Sessions at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Courts for trial of offences punishable under section 4 of the Act. Exercising the power under section 43 of PMLA, Central Government vide Notification dated 1-6-2006 has designated the Sessions Court at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Court, therefore, the Additional Sessions Judge who in terms of section 9 of Criminal Procedure Code is covered within the meaning of Court of Session, is empowered to try the offences under section 4 of PMLA being the designated Court. The Central Government has not confined the designation of the Special Court to "Sessions Judge" only but it has notified Sessions Court as designated Court, therefore, the contention of the petitioner that the Additional Sessions Judge is not the designated Court, cannot be accepted.
Issue of grant of bail - Held that:- In the present case nothing has been pointed out to show that the respondents have acted in contravention of the aforesaid provision relating to arrest as contained in section 19 or the bail has been rejected in violation of section 45 of the Act. Hence, it cannot be held that the petitioner is in illegal custody. The Special Court, which has been found to be the competent Court, has already rejected the application for bail, hence no ground is made out for issuing the writ of Habeas Corpus. No case is made out for quashing the offence which has been registered against the petitioner under PMLA and so far as the issue of investigation is concerned, the parties are required to take appropriate steps in terms of Paragraphs 22 and 23 of the judgment.
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2015 (10) TMI 2678
Composite Scheme of Arrangement in the nature of amalgamation - Held that:- The written consents from all its secured creditors as on date has been obtained and placed on record alongwith a certificate from the Chartered Accountant as Annexure:L. Hence, the present petition is moved for obtaining the sanction of this Court.
The petitioner being a listed public limited company, has placed on record all other requisite approvals from stock exchanges.
ADMIT. To be heard on 15.10.2015. Notice of hearing of petition, to be advertised in ‘The Times of India’, English daily, and ‘Sandesh’, Gujarati daily, Ahmedabad Editions. Publication in government gazette is dispensed with.
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2015 (10) TMI 2677
Denying deduction u/s 80P(2)(a)(i) - whether the assessee bank neither fulfills the condition of Primary Agricultural Credit Society or Primary Cooperative Agricultural & Rural Development Bank nor does it functions as a Primary Agricultural Credit Society or Primary Cooperative Agricultural & Rural Development Bank but engaged in the activity as defined in Explanation 2 to Sub-section (4) of Section 80P? - Held that:- The department itself has allowed deduction U/s 80P(2)(a)(i) of the Act in A.Y. 2007-08, which has not been reopened U/s 148 and no order U/s 263 was passed by the department. The ld Dr had not brought on record any evidence that in preceding year, the Assessing Officer’s order in A.Y. 2007-08 had not been accepted by the department. By respectfully following the decision of Hon’ble Gujarat High Court in the case of CIT Vs. Jafari Momin Vikas Cooperative Credit Society Ltd.(2014 (2) TMI 28 - GUJARAT HIGH COURT ) on identical issue, we hold that the assessee is a cooperative society not a cooperative bank and is entitled for deduction U/s 80P(2)(a)(i) of the Act. Assessee’s appeal is allowed
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2015 (10) TMI 2676
Allowing the depreciation when the income was computed by the A.O. by applying net profit rate of 25% - Held that:- AO had not allowed the separate deduction on account of depreciation separately. IN A.Y. 2009-10, the ld Assessing Officer allowed the depreciation separately from the estimated income U/s 43(3) of the Act. The case law relied upon by the assessee i.e. CIT Vs. Jain Construction (1999 (9) TMI 26 - RAJASTHAN High Court) is squarely applicable wherein it has been held that in case of rejection of books of account of the firm and income estimated, the depreciation is allowable separately by considering the CBDT circular No. 29D(XIX) of 1965 dated 31/8/1965 wherein it has been provided that net profit rate is subject to allowance of depreciation and the depreciation allowance should be deducted therefrom. Therefore, we uphold the order of the ld CIT(A).
Addition made U/s 40(a)(ia) and 40A(3) - Held that:- It is found that the various Hon'ble High Courts as well as ITAT has decided this issue against and in favour of the assessee. The Hon'ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd. (1973 (1) TMI 1 - SUPREME Court) has held that when two opinions has been formed by the Hon'ble High Court, the assessee's favourable opinion is to be applied. Therefore, we uphold the order of the ld CIT(A) as Assessing Officer had rejected the books of accounts and had applied net profit rate for purpose of computing income no disallowance could have been made u/s 40A(3). In view of the above judicial pronouncements, no disallowance could be made U/s 40(a)(ia) and 40A(3) of the Act when assessment is made computing income by application of NP rate
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2015 (10) TMI 2675
Adjustment for AMP expenses - AR has submitted that gross profit margin earned by the assessee being higher than gross profit margin by internal as well as external comparables, no adjustment for AMP expenses was required in the case of the assessee - whether we can compute the arms length price of the international transaction of AMP expenses in the given circumstances or we need to remit the matter back to the AO as submitted by the learned SR DR - Held that:- Authorised Representative has submitted that gross profits margin earned by the assessee being higher than gross profit margins earned by comparables companies, no adjustment is required for the purpose of computing arms length price of international transaction of AMP expenses. If the argument of the learned AR is accepted, it will lead us to a result where the AMP transaction will be rendered as non international transaction, as against the findings of the Hon’ble High Court in the case of Sony Erricsson (supra). The Hon’ble High Court has directed to find out AMP functions of comparables and compare the same with the AMP functions performed by the assessee and then after making adjustments if any compute the arms length price of the international transaction in bundled manner for distribution as well as AMP expenses and if not possible to compute in bundled manner, then only in separate manner. But in the case in hand the AMP functions performed by the external comparable are neither submitted by assessee before the AO/TPO nor examined by the TPO. The learned Authorised Representative has also failed to exhibit us the AMP functions carried out by the assessee and compare those functions with the AMP functions of the comparables and without that analysis the arms length price of the AMP functions cannot be determined at our level. We are also in agreement with the submission of the learned Senior Departmental Representative that the figures given in the tables by the learned Authorised Representative are not verifiable from the orders of the AO/TPO. In view of the above facts and circumstances, we are unable to determine the ALP of AMP expenses at our own either in the bundled or a separate approach.
We remit the matter back to the file of AO/TPO for determination of ALP on international transaction on AMP expenses, in accordance with the direction laid down by the Hon’ble High Court in the case of the assessee led by Sony Ericson Mobile Communication P Ltd (2015 (3) TMI 580 - DELHI HIGH COURT ). Needless to say that the assessee shall be afforded a reasonable opportunity of being heard.
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2015 (10) TMI 2674
Penalty u/s 271(1)(c) - disallowance of foreign traveling expenses - Held that:- Penalty u/s 271(1)(c) of the Act can be imposed only when the assessee has concealed income or furnished inaccurate particulars of income. Where a deduction is claimed after making a proper disclosure, the mere fact that the disallowance has been made for a part of such deduction, it cannot be construed as a case covered u/s 271(1)(c) of the Act. CIT Vs. Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT) has held that no penalty can be imposed where a proper disclosure is made but the disallowance has been made by the Assessing Officer. In considered opinion, the learned CIT(A) was justified in not upholding penalty on this amount of disallowance.
Disallowance u/s 14A r.w.r 8D - Held that:- There cannot be any disallowance u/s 14A if there is no exempt income. As confronted with a situation in which the assessee has not earned any exempt income but the disallowance has been made to the extent of ₹ 13.64 lakh by applying Rule 8D. Despite there being no challenge to or sustenance of the disallowance u/s 14A, it is of considered opinion that under no circumstance, such ill founded disallowance, not having any authority of law to stand on, can be considered for the purposes of imposition of penalty u/s 271(1)(c) of the Act. Therefore, approve the view taken by the learned CIT(A) on this score.
Disallowance of credit card expenses - Held that:- This disallowance was made by the Assessing Officer on ad-hoc basis which fact is borne out from the assessment order itself. There is hardly any need to highlight that no penalty can be imposed where the disallowance of expenses has been made on an ad-hoc basis. Therefore, hold that the learned CIT(A) was justified in deleting the penalty on this account as well.
Decided against revenue.
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2015 (10) TMI 2673
CENVAT credit - outdoor catering service - denial on account of nexus - Held that: - reliance placed in the case of CCE Nagpur vs Ultratech Cements Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein it has been held that service tax paid by the employer on the outdoor catering service shall be eligible for cenvat credit - appeal dismissed - decided against Revenue.
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2015 (10) TMI 2672
Interpretation of statute - Section 18(3) of the Act - whether the petitioners are entitled to get back their Input Tax Credit on Zero Rate Sales, after the prescribed statutory period given under Section 18 of the Act?
Held that: - there is no dispute that the petitioners herein have filed the monthly returns in the form of Form-I in time by which they claim the refund of Input Tax Credit from the respondents. The respondents herein have turned down their request in refunding the Input Tax Credit on the primary ground that such claim is beyond the statutory period - It is true that the Input Tax Credit is a concession but such concession is extended to the Companies/Dealers in order to encourage them to do exports by which the foreign exchange will flow into the Country and give a fillip to the economy of our State or Country as the case may be. In a given situation, necessarily, this Court will have to answer as to whether, it can use its discretionary power by interpreting Section 18(3) of the Act.
When admittedly there is no dispute that the petitioners have exported the goods, the technicalities shall not stand in the way of claiming refund of Input Tax Credit in the form of 'Form W' - a direction is issued to the respondents herein to the effect that if the petitioners after following the conditions stipulated in Form-W issued by the respondents, except the time limit, the respondents shall then consider the claim of the petitioners afresh as per Section 22(2) of the Act, within a period of eight weeks from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2015 (10) TMI 2671
Delegation of powers - powers delegated to the Collector of Central Excise - offences punishable under Section 9 of the Central Excise Salt Act 1944 - omission of Rule 56A - the allegations against the accused were that in pursuance to the permission granted on 07/07/1983, the credit of ₹ 1,17,35,014/- was permissible, but instead, by making a dishonest and deliberate double entries of credit of the said amount, impermissible credit in the sum of ₹ 1,17,35,014/- was taken and thus an offence under the aforestated provisions were committed - effect of omission of Rule 56A on pending a complaint before the trial Court.
Whether the prosecution can subsist after omission of Rule 56A without a saving clause? - whether Sections and 3 and 38A of the Act or Section 6 of the General Clauses Act would be able to save the situation?
Held that: - While addressing the issue arising under Section 38A of the Act, it was observed that Section 38A operates in respect of amendment, repeal, supersession or rescinding of any rule, notification or order, but not in the eventuality of an omission. It was explained that omission and repeal are different things and omission does not amount to repeal. The Court also referred the dictionary meaning of 'rescind' and 'amend' and observed that the same are not synonymous with the word 'omit'. It was thus held that Section 38A of the Act would not save any obligation, liability etc. acquired, accrued or incurred under any rule, order or notification which has been omitted. Similar fact situation is prevalent in the present case and therefore on omission of the rule in absence of savings, the proceedings under Section 138A of the Act in question would not be saved.
Similar is the fact situation in the present case. As indicated earlier, the relevant notification in this case also does not make any provision akin to Section 6 of the General Clauses Act. It also does not make any provision continuing the liabilities incurred under Rule 56A.
Immediately on omission of Rule56A during the pendency of the complaint, it is deemed to have disappeared from the statute book and therefore it can no more be relied upon. Consequently, no prosecution initiated during the subsistence of Rule 56A can continue after its omission and therefore penal consequences flowing therefrom would cease. It therefore can be said that the act or omission on the part of the petitioner was not punishable on and after the date of ‘omission’ of Rule 56A and in view of above discussion, the introduction of Section 38A with specified savings would not come to the aid of the prosecution as the act which was not punishable on omission cannot be punishable by virtue of explanation to Section 38A.
The trial Court failed to address the legal proposition in its true perspective. It is settled legal position that though at the time of considering the application for discharge, the Court is not obliged to appreciate the evidence, but certainly it is required to see the evidence with an object to find out as to whether the material justifies framing the charge and whether the charge, if framed on the basis of existing material, would be groundless or not? The endavour of the Court would be to examine the material available and find out whether the material is good for trial. The charge would be certainly groundless if it is framed in ignorance of settled proposition of law on a given subject.
This Court has reason to interfere with the impugned order in exercise of powers conferred under Section 397 of the Cr.PC and thus the impugned order deserves to be quashed and set aside and the application for discharge deserves to be accepted - application allowed.
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2015 (10) TMI 2670
Winding up proceedings - proof required by the petitioning creditor to prove his case in the winding up application - Held that:- The standard of proof required by the petitioning creditor to prove his case in the winding up application is the same standard that is required to prove a plaintiff’s case in a summary suit. (see SRC Steel Pvt. Ltd. Vs. Bharat Industrial Corporation Ltd. - 2004 (8) TMI 684 - CALCUTTA HIGH COURT).
The company must be in a completely defenceless position. It would suffice if the company raised a triable issue, for relegation of the winding up application to a civil forum.
From all the discussion it is absolutely clear that the company has been able to prima facie establish a strong case that the goods that the petitioning creditor shipped were in fact in lieu of payment for the goods shipped to them by Concast Bengal in 2009. Both the shipments have been proved by invoices, delivery, payment of VAT and so on. But there is no evidence of either party making payment of the price. There is also strong evidence produced by the company to show that each of the companies of the Concast Group was a part of one entity and carried on business as one entity. Shipment of goods by the petitioning creditor in 2011 was sufficient to extinguish its liability for the goods that it received in 2009.
The argument regarding equitable set off is premature, in my opinion. It has to be seen, upon scrutiny of the evidence at the trial whether the arrangement between the parties was such that the setting off took place at the time of the transaction or was it pleaded for the first time in the affidavits in opposition. That would determine whether the set off was legal or equitable and whether it could be claimed.
Having advanced a substantial defence there is no question of a winding up order being passed. The defence is so substantial that I am not even inclined to ask the company to provide security.
This winding up applications are disposed of, by refusing to admit the same and relegating the petitioning creditor to a civil remedy as available to it. The period during which these winding up applications have been pending in this Court may be excluded to compute limitation under Section 14 of the Limitation Act, 1963.
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2015 (10) TMI 2669
Entitlement to the benefit of Section 80P(2)(a)(i)denied - whether assessee is a Primary Co-operative Bank, thus hit by the exclusion provided in Section 80P(4)? - HC held that the three conditions as provided under Section 5 (CVV) of the Banking Regulation Act, 1949, are to be satisfied cumulatively and except condition (2) the other two qualifying conditions are not satisfied. Ergo, appellant cannot be considered to be a co-operative bank for the purposes of Section 80P(4) of the Act. Thus, the appellant is entitled to the benefit of deduction available under Section 80P(2)(a)(i) - Held that:- Delay condoned. Leave granted.
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2015 (10) TMI 2668
Refund claim - rejection on the ground of time limitation - Held that: - appellant was required to file refund claim within 60 days from the date of end of relevant quarter. Admittedly, the refund claim is filed beyond that period of limitation - As refund claim has been filed beyond prescribed time limit under N/N. 41/2007-S.T., therefore, refund claim is barred by limitation - appeal dismissed - decided against appellant.
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2015 (10) TMI 2667
Recovery of service tax amount from the service recipient - scope and interpretation of the agreement - Lease agreement - Rent and the maintenance charges - declaration and injunction qua the service tax paid in respect of rented premises - Held that: - whether the service tax liability has been agreed not to be passed on to the recipient of the service would depend on the interpretation of clauses entered into between the parties - a contract has to be construed by looking at the document as a whole and the meaning of the document has to be what the parties intended to give to the document keeping the background in mind and conclusion that flouts business commonsense must yield unless expressly stated. In the present case it will also have to borne in mind whether the parties intend to include taxes which were not contemplated at the time of the agreement as indubitably the agreements between the parties in the three suits were entered into prior to the Finance Act, 2007 coming into force w.e.f. June 01, 2007.
In the agreement between HDFC Bank and Meattles Clause 4(v) imposes liability of municipal taxes, rates, charges and other outgoings in respect of the demised premises that would be determined/fixed/varied from time to time by the Municipal Corporation/Municipality/Gram Panchayat or any other local authority only. It is well settled that the Municipal Corporation, Municipality, Gram Panchayat or local authority is distinct from the government and thus the clause inter se the parties cannot be said to cover the exemption of HDFC Bank to pay to Meattles service tax paid by it to the government pursuant to the Finance Act, 2007.
Appeal dismissed - decided against appellant.
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2015 (10) TMI 2665
Memorandum of Settlement - Held that:- Memorandum of Settlement is recorded and the Company Petition is closed in terms of the settlement. Memorandum of settlement dated 12.10.2015 shall form part of this order. However, it is made clear that in case of default of any of the conditions, as agreed to by the parties in the Memorandum of settlement, the petitioner is at liberty to revive the company petition. Consequently, connected Applications are closed.
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