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Showing 181 to 200 of 1585 Records
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2015 (8) TMI 1413
Scheme of amalgamation - Held that:- All the consent letters are annexed with the application as Exhibit-`D' and 'E'. There are no Secured Creditors of the applicant-company as on date. The certificates confirming the status of the Shareholders and Creditors as well as the receipt of consent letters from all the Shareholders and Unsecured Creditors are annexed collectively as Exhibit- `F'. In view of the same, dispensation is sought from convening the meetings of the Equity Shareholders and Unsecured Creditor of the applicant-company and considering the facts and circumstances and the submissions, the same is hereby granted.
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2015 (8) TMI 1412
Revival and rehabilitation seeked - Held that:- There is nothing on record for disagreement with the factual conclusions of the Board and its opinion based thereon that the respondent-Company was not positioned to make its net worth exceed its accumulated losses within a reasonable time. And the conclusions of the Board have not been objected to by any stakeholder in the respondent-Company.
The respondent-Company is not in a position to meet its financial obligation or likely to become viable in the foreseeable future making its net worth exceed the accumulated loss (as held by the Board) and therefore it is just, equitable and in public interest that the respondent-Company be wound up.
Consequently, the respondent-Company M/s. Deepak Casting Ltd. stands wound up under the Act of 1956 and the Official Liquidator attached to this Court is appointed as the Official Liquidator of the respondent-Company under Section 448 of the Act of 1956. The Official Liquidator may now further take appropriate steps as provided for in law under Section 457 (1) of the Act of 1956 including the steps to take in his custody the properties of the company in liquidation, if any and take steps for their safeguard subject to approval of this Court. He is directed to publish notice of this winding up order in two daily newspapers, one in vernacular and the other English i.e. Rajasthan Patrika, Alwar Edition and Hindustan Times, New Delhi Edition respectively. The Official Liquidator shall immediately take steps for requisite publication. Since the respondent-Company has been wound up by this order as earlier held, the Official Liquidator to proceed and take active steps for compliance with Section 457(1) of the Act of 1956 and do all acts where needed, as required and permitted in law.
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2015 (8) TMI 1411
Refund of unutilized CENVAT credit - deemed export - whether the appellant is eligible for refund u/r 5 of CCR, 2004 read with N/N. 11/2002-CE on account of unutilized credit lying in balance for clearance of excisable goods to 100% EOU (deemed export) in Form AR-3A? - Held that: - Appendix to N/N. 11/2002 wherein clause (4) provides that manufacturer (appellant) is required to submit refund application along with Bill of Lading or shipping bill or export proof duly certified by any office of Customs, to the effect that the goods have in fact been exported. There is no ambiguity in the requirement as the documents referred to under clause (4) are only available in case of actual export and not deemed export.
The appellant herein have admittedly failed to furnish the evidence of actual export in spite of opportunity in the second round of litigation. Thus, the rejection of claim by the learned Commissioner (Appeals) is correct and in accordance with law - refund not allowed - appeal dismissed - decided against appellant.
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2015 (8) TMI 1410
Eligibility of sanctioned scheme - proof of direction for listing of the shares of the Company with reference to Clause 3.7 of the sanctioned scheme - Eligibility under the relevant Securities and Exchange Board of India Regulations - Held that:- As gone through the detailed reasons given in the reply of the resultant Company, affirmed by the affidavit of Shri Vinay Kumar Dadheech, and do not find any lack of bonafides in making sincere efforts for compliance of Clause 3.7 of the Sanctioned Scheme. The permission from the SEBI has not come forward on account of unavoidable reasons, which cannot be attributed to the respondents. It was not their fault, in which the shares could not be listed on the Stock Exchanges.
Also find that the appellant continuous to be shareholder of the resultant Company, and that he has also exercised option to subscribe to the rights shares, which goes to demonstrate that the appellant, as on date, did not have any intention to exercise the exit option, for which he had pressed the application before learned Company Judge, nor he has accepted an offer made by respondents to make a joint effort for a willing buyer on mutually acceptable price.
We also agree with the submission of learned counsel appearing for the respondents that the application of the kind, filed by the appellant, was not maintainable under Rule 9 of the Rules of 1959. The inherent powers of the Company Courts do not extend the power to pass order, which may recall and frustrate the Scheme of Amalgamation, on any subsequent developments after the Resultant Company has been incorporated putting the clock back.
No good ground to interfere. If the appellant wants to seek any relief, he may, if so advised, apply under Section 397/398 of the Act of 1956, subject to his competence, for appropriate orders.
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2015 (8) TMI 1409
Entitlement to depreciation to assessee trust - Computation of income u/s 11(1)(a) - entire cost of the asset was deducted while computing the amount applied towards the object of the trust - Held that:- Charitable or religious trust registered under section12A can claim benefit under section 11 in the form of application of funds as well as depreciation under section 32 in respect of the property held under the trust. See A. P. Olympic Association v. Asst. DIT [2014 (2) TMI 988 - ITAT HYDERABAD] - Decided in favour of assessee
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2015 (8) TMI 1408
CENVAT credit - evidence - whether the remnant Cenvat credit claim is supported by evidence? - Held that: - Appellant is directed to make an application to the Commissioner (Appeals) within a month of receipt of this order for fixing of date of hearing. On the date fixed, the appellant shall produce entire evidence to the extent indicated above and make its submission both on facts and law as well as evidence, as an opportunity of following of natural justice - appeal allowed by way of remand.
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2015 (8) TMI 1407
Illegal mining and extraction of iron ore - permanent injunction suit - amendment sought to be introduced by para 14(B) and prayer clause (bb) - Held that:- In the present case, as indicated above, the suit is basically filed on the allegation that the petitioner is engaged in illegal mining and extraction of iron ore from property survey no.7 of village Ambelim and the relief claimed in the suit is permanent injunction against the petitioner from carrying out any such mining activity or extracting the iron ore, or from removing or transporting the same
The normal rule would be that the Court may at any stage of the proceeding may allow either party to alter or amend his pleadings,when such amendments may be necessary for the purpose of determining the real question in controversy between the parties. Thus the proviso can come into play only, when the Court comes to the conclusion that the party has not approached the Court with due diligence. The proviso would not come in the way of grant of amendment when the Court finds that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso in fact aims at balancing the conflicting considerations for expeditious disposal of the suit on one hand and a genuine need of a party to effect amendments.
Coming back to the present case, the proposed amendment as noticed earlier is only an amplification of the pleadings already on record in which there are some subsequent developments and the quantification of the damages. As noticed earlier, it is claimed that the iron ore which was already extracted was removed in the interregnum when the restraint placed on the petitioner was removed by this Court, while dismissing the Appeal From order and was restored when the review application came to be allowed. If that be so, it cannot be said that the third respondent had acted without due diligence.
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2015 (8) TMI 1406
Scheme of demerger - necessary approvals and consent - Held that:- The Board of Directors of the demerged and resulting companies in their separate meetings held on 29th March, 2014 have unanimously approved the proposed Scheme of Arrangement. Copies of the Resolutions passed at the meetings of the Board of Directors of the demerged and resulting companies have been placed on record.
The demerged company has 10 equity shareholders, 01 secured creditor and 20 unsecured creditors. All the equity shareholders, the sole secured creditor, and 14 out of 20 unsecured creditors, being 70% in number and 99.98% in value, have given their consents/no objections in writing to the proposed Scheme of Arrangement. Their consents/no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meetings of the equity shareholders, secured and unsecured creditors of the demerged company to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Arrangement is dispensed with.
The resulting company has 02 equity shareholders and 03 unsecured creditors. Both the equity shareholders and all the unsecured creditors have given their consents/no objections in writing to the proposed Scheme of Arrangement. Their consents/no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meetings of the equity shareholders and unsecured creditors of the resulting company to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Arrangement is dispensed with. There is no secured creditor of the resulting company, as on 31st January, 2014.
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2015 (8) TMI 1405
CENVAT credit - reverse charge mechanism - Consulting Engineer Service - scope of SCN - Held that: - there is no allegation in the SCN regarding the nexus between the disputed service and the goods manufactured by the appellant. Hence, in absence of any specific allegation made therein, the Commissioner (Appeals), is forbidden under law to decide such issue. Thus, he has travelled beyond the scope of show cause notice, and as such, this ground taken for denial of Cenvat benefit is not in conformity with the cannons of justice - Appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1404
Condonation of delay of 11 months in filing appeal - case of appellant is that the explanation furnished for delay of 11 months in filing the appeal has not been considered at all. The Tribunal has simply proceeded on an assumption of deemed service of the order of the Lower Appellate Authority, under Section 27 of the General Clauses Act. The deemed presumption is not absolute but is rebuttable - Held that: - The law with regard to condonation of delay and what may or may not constitute ‘sufficient cause’ cannot be put in rigid straitjacket formula. What will constitute sufficient cause will depend upon facts of each case. Duration of delay is also relevant consideration especially when it is not gross and inordinate. The adverse consequences that will follow if an appeal is dismissed on technicalities without going into merits has also to be kept in mind.
The notices by the Tribunal are sent by registered posts. Even if notice for hearing of the stay application sent by the Tribunal at the Chhattisgarh address was returned with a postal endorsement as “left”, it may again raise a presumption but which cannot be absolute. It is not uncommon that if for any reason the postman has not been able to deliver a registered letter within the specified days because the premises may have been locked for one reason or the other on the occasion when the postman went there, he prefers to make his own endorsement and return it.
More recently, in the case of Esha Bhattacharjee Versus Managing Committee of Raghunathpur Nafar Academy and others [2015 (1) TMI 1053 - SUPREME COURT], considering the entire conspectus of law based on judicial precedents with regard to condonation of delay and sufficient cause, holding that merit adjudication was always to be preferred to a dismissal of the case at the outset on technicalities leaving the dispute festal.
The appeal is restored to file - delay condoned - appeal allowed.
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2015 (8) TMI 1403
Setting aside of the abatement of appeal and for substitution of the legal representatives of the both the respondent nos. 1 and 2 who died on October 27, 2007 and in the year 1999 respectively - Held that:- From the statements made in this application it is evident that the said Jayati Dey was well aware of the factum of the pendency of the above appeal. Further, when the respondent no. 2 had already died in the year 1999 and the respondent no. 1 had died on October 27, 2007, all within the knowledge of the appellant no. 5 deponent, there is no scope to accept the case of the appellants applicants that in March, 2012 Jayati Dey came to know that the respondents were trying to develop the suit property. The only other explanation put forth in this application is that the applicants were not aware of the requirement of law that steps were required to be taken for the substitution of the legal representatives of the said deceased appellants within the period of limitation and they had to file even the application for setting aside of the abatement of the appeal in so far as the said two deceased appellants within the period of limitation.
In the instant case, the conduct of the appellants applicants are nothing short of negligent and the explanations put forth for condonation of delay as already discussed are not plausible. It is not the case of the appellants applicants that they are uneducated people. The appellants applicants are not rustic people residing far away from a city of Kolkata. It is not their case that they did not know the Advocate conducting the litigation on their behalf of that they were misled by their Advocate. It was the sheer negligence of the deceased appellants and the present applicants not to inform their Advocate of the death of both respondents. Thus, the explanation put forwards by the appellants applicants that they were not aware of the legal requirement of substitution of the legal representatives of both the deceased respondents within the prescribed time does not appear to be plausible or bona fide. Thus no merit in this application
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2015 (8) TMI 1402
Penalty - short payment of duty - Held that: - due to some programming error in the software, the correct duty liability was not reflected, resulting in short payment of duty during the relevant period. On detection of mistake regarding wrong computation of duty liability, the appellants had deposited the appropriate duty in the Central Govt. account, before issuance of SCN - the authorities below had not specifically discussed as to the involvement of the appellant in the activities involving fraud, collusion, misstatement, etc. with the intent to evade payment of Central Excise duty. Thus, intention to evade payment of duty by the appellant has not been proved by the authorities below with any tangible evidence - penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1401
Trading in the securities of the petitioner no.1-company suspended - SEBI regulations - alternate remedy - Held that:- Section 23L of the Securities Contracts (Regulation) Act,1956 provides an alternative remedy of an appeal before the Securities Appellate Tribunal from the orders of the Stock Exchange. The running of Stock Exchange is an area of specialization requiring expertise and in view thereof the SEBI has been appointed as a Regulator. This is to ensure that dealings in the shares on the Stock Exchange, are not manipulated to the detriment of genuine investors in stock market. The decision taken by the impugned order being an interim order pending investigation is subject not only to the representation to the Stock Exchange but is also subject to appeal to the Securities Appellate Tribunal. Therefore, the submissions urged before us could be urged either in the representation before the Official of the Stock Exchange or before the Securities Appellate Tribunal in an appeal, if they choose to prefer an appeal. The relief which they are seeking from this Court is something which would be available to them by availing of statutory alternative remedy provided to them under the Securities Contracts (Regulation) Act, 1956 or by filing a representation tot he Stock Exchange. Thus, we see no reason to exercise our extraordinary writ jurisdiction in the peculiar facts of this case.
So far as the issue of Regulation 21 of the bye-laws of the Bombay Stock Exchange being ultra vires of Article 14 and 19(1)(g) of the Constitution is concerned, the challenge is on the basis that the impugned interim order has been passed without following principles of natural justice etc. Firstly, it must be appreciated that principles of natural justice are not immutable. They necessarily have to yield / be modified to meet different situations. This is only an interim order and the issue of such orders pending further investigation and consideration cannot be faulted as otherwise genuine investors in the Stock Exchange may face ruin. At this stage, we, therefore, refrain from entertaining the challenge to the vires of Regulation 21 as raised by the petitioners.
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2015 (8) TMI 1400
CENVAT credit - input services - GTA Service - Whether Service Tax paid on transportation charges for transporting goods from the assessee place, such as a factory, warehouse, depot, to the customer falls within the meaning of input service as defined under the Rules and can the assessee be allowed to take Cenvat Credit? - Held that: - Under the on amending definition of the input service contained in Rule 2 (I) of the CCR since the requirement for taking CENVAT Credit was with regard to the clearance of final product from the place of removal, the question as to how and where the ownership/title of the goods passed on the buyer is not the relevant consideration and irrespective of the purpose if service tax has been paid on the transportation of the goods to the buyers premises have been incurred by the respondent, the said should be available at CENVAT Credit. In view of the certain position of law, the respondent shall be eligible for the CENVAT benefit of service tax paid on the GTA service for transportation of goods to its buyers premises - appeal dismissed - decided against Revenue.
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2015 (8) TMI 1399
Depreciation - World Trade Centre and the World Trade Tower buildings - Held that:- Claim being allowed to the Assessee in respect of the World Trade Centre and the World Trade Tower buildings under Section 32 - the question stands answered against the Revenue by an order passed in CIT v. Bharat Hotels Ltd. (2015 (7) TMI 875 - DELHI HIGH COURT ).
Addition u/s 14A - Held that:- The ITAT has rightly followed the decision of this Court in CIT v. Holcim India Pvt. Ltd. (2014 (9) TMI 434 - DELHI HIGH COURT) and held that since no exempt dividend income was earned the question of invoking Section 14 A of the Act read with Rule 8D did not arise.
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2015 (8) TMI 1398
TDS u/s 195 - TDS liability - nature of expenditure - Held that:- The obligation to deduct tax under Section 195 can only arise if the sum paid is chargeable to tax under the Act. Reimbursement of expenses can never be subjected to tax as income.
This is clear from the plain reading of the Section 195 of the Act. Besides it is also settled by the decision of this Court in CIT v. Siemens Aktiongesellschaft [2008 (11) TMI 74 - BOMBAY HIGH COURT]. So far as Mr.Pinto's submission on behalf of the Revenue is concerned that the reimbursement of expenses is of estimated expenses. We find that the impugned order of the Tribunal on facts has held that the payment is only reimbursement of expenses. This finding of fact has not been shown to be perverse and / or arbitrary.
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2015 (8) TMI 1397
Levy of VAT - interpretation of statute - The petitioners' case is that live chicken comes within the meaning of live stock and exempt from payment of Value Added Tax - The challenge to the impugned amendment to the Puducherry Value Added Tax Act is primarily on the ground that the impugned enactment is discriminatory and violative of Article 14 of the Constitution of India - Held that: - It is well settled legal principle that the State does not have to tax everything in order to tax something; it enjoys a wide discretion in the matters of taxation and enjoys more freedom for classifying the objects to be taxed and the rates of taxation and the burden for proving discrimination is heavier still when a taxing statute is under attack. Further, the State can validly pick and choose one commodity for taxation and the same is not open to attack under Article 14 - the burden is on the petitioners to show that the impugned amendment is discriminatory and offends Article 14 of the Constitution. In taxation, the legislature possess greater freedom in classification and the petitioners to succeed in striking down the impugned amendment should be able to demonstrate that the impugned amendment makes an improper discrimination, it is arbitrary and amounts to class legislation.
The argument of the petitioners is that the live chicken sold in Mahe region alone cannot be subjected to payment of tax and it amounts to a class legislation as the same product is exempted from tax in other regions in the Union Territory of Puducherry. For the petitioners to succeed, it is not sufficient for the petitioners to state that it is a class legislation. What is required to be established is that such legislation makes an improper discrimination. Therefore, it has to be seen as to whether the Government of Puducherry was justified in making such a distinction and whether the same was reasonable and had a valid basis - the basis for bringing about the impugned amendment, which in fact came into effect from 01.01.2012, initially as a notification, is based on valid and reasonable classification and does not offend Article 14 of the Constitution of India.
Petition dismissed - decided against petitioner.
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2015 (8) TMI 1396
Club or Association Service - rendering of services by the club to its member - Held that: - the issue is no more res integra inasmuch as the Hon’ble High Court of Jharkhand in the case of Ranchi Club Ltd. vs. Chief Commissioner of Central Excise & Service Tax [2012 (6) TMI 636 - Jharkhand High Court] has held that rendering of services by the club to its members is not taxable under the category of Club or Association Service - appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1395
Rent a cab service - Joint agreement - private entrepreneurs supply the buses under hire scheme for operation on the identified intra and inter-state route to Andhra Pradesh State Road Transport Corporation (APSRTC) - Restriction on hire - Buses with stage carriage permit cannot be hired - Interpretation of definition of 'rent a cab service' - Imposition of penalty - the decision in the case of SK. Kareemun W/o. Khadeer and others Versus Commissioner of Central Excise, Customs And Service Tax Hyderabad-III [2015 (1) TMI 282 - CESTAT BANGALORE] contested, where it was held that whatever be the situation, the appellants get only the payment agreed upon per kilometer and nothing more - Held that: - we do not see any good ground to interfere with the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal. Accordingly, the civil appeals are dismissed.
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2015 (8) TMI 1394
Issues:
1. Condonation of delay in re-filing the appeal.
2. Disallowance of business profits under Section 40(a)(i) for non-deduction of TDS.
3. Remand of Transfer Pricing issue to the TPO.
Analysis:
1. The court condoned the delay of 47 days in re-filing the appeal after considering the reasons stated in the application, thereby disposing of the application.
2. The first issue pertains to the deletion of disallowances of a significant amount made by the Assessing Officer under Section 40(a)(i) for non-deduction of TDS on business profits. The court framed a question for determination based on this issue, considering a similar question framed for the earlier assessment year involving the same assessee. The appeal was admitted for further deliberation on this matter.
3. The second issue raised by the Revenue concerns the ITAT's decision to remand the Transfer Pricing issue to the Transfer Pricing Officer (TPO) for fresh adjudication. The ITAT's action was based on a previous order for a different assessment year. After hearing arguments from both parties, the court concluded that the ITAT did not err in sending the matter back to the TPO for reevaluation. The court emphasized that all contentions on the Transfer Pricing issue could be presented before the TPO during the fresh adjudication process.
This detailed analysis of the judgment covers the issues of condonation of delay, disallowance of business profits for non-deduction of TDS, and the remand of the Transfer Pricing matter to the TPO, providing a comprehensive overview of the court's decision and reasoning.
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