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Showing 181 to 200 of 1760 Records

• 2015 (9) TMI 1588
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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
  

  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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• 2015 (9) TMI 1577
  

  Penalty u/s 271(1)(b) - assessee has committed default by not attending on the date of hearing fixed vide notice issued by AO u/s 143(2)/142(1) - reasonable cause for default - Held that:- As explained by the assessee in its written submissions that Mrs. Anju Gupta, daughter-in-law of the principal officer of the assessee was suffering from severe disease and had to be hospitalized during the relevant time and thereafter, Shri Satya Prakash Gupta, principal officer of the assessee himself became ill due to heart attack and had to be hospitalized and that the whole family was disturbed and, therefore, there was no compliance.

  As find that the learned CIT(A) has recorded that in the given circumstances, the penalty is levied at ₹ 10,000/- each only for three of the six assessment years involved and the penalties for the remaining three assessment years were deleted. Also find that for the same default, multiple penalties have been levied in this case. Considering the totality of facts and circumstances of the case and the explanation of the assessee and that the penalty was levied for the same default, it is of the view that the ends of justice shall be met if the penalty levied u/s 271(1)(b) of the Act is restricted to only one assessment year and is deleted for the other years. Accordingly, the penalty of ₹ 10,000/- levied for assessment year 2006-07 confirmed rest deleted. - Decided partly in favour of assessee.

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• 2015 (9) TMI 1576
  

  CENVAT credit - transfer of credit - input service distribution - credit distributed by the Appellant from its Wagholi Unit to their Kanhe Unit have been found to be lacking nexus and/or improperly distributed - Held that: - the Commissioner (Appeals) is in error in his observation that there is lack of nexus in the Cenvat Credit taken, which is not made out in the SCN - Even otherwise, the credit was rightly taken in the Waghoii Unit - as none of the restrictions under Rule 7 is attracted, the appellant is entitled to transfer the credit from their Wagholi Unit to their Kanhe Unit - appeal allowed - decided in favor of appellant.

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• 2015 (9) TMI 1575
  

  Maintenance and Repair Service - demand on the ground that the appellant provided the service of retreading of tyres, which was covered under Maintenance and Repair Service - time limitation - penalty - Held that: - In the case of PLA Tyre Works [2007 (8) TMI 91 - CESTAT, CHENNAI], CESTAT clearly held that the impugned service is covered under maintenance and repair service - Bona fide belief is not a hallucinatory belief but a belief of a reasonable person operating in an appropriate environment. Thus, there was no scope for a bona fide belief that the impugned service is tantamount to repair or maintenance of motor vehicle and therefore the extended period is rightly invoked and penalty under Section 78 ibid is attracted - appeal dismissed - decided against Appellant.

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• 2015 (9) TMI 1574
  

  Rectification of mistake - applicability of section 40(a)(ia) to expenditure has already been paid during the year and is not payable at the year - Held that:- Section 40(a)(ia) applicable only to the expenditure which is payable as on 31st March of every year and that the provisions of this section cannot be invoked to disallow the amounts which have already been paid during the year, which has not been considered by this Bench as held by in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008 (9) TMI 11 - SUPREME COURT) that non-consideration of the decision of the Hon’ble Jurisdictional High court [or the Hon’ble Supreme Court) is a mistake apparent on record is rectifiable u/s. 254(2). Accordingly, we recall the aforesaid Order of this Bench to that extent. The Registry is directed to fix the case in due course.

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• 2015 (9) TMI 1573
  

  Appointment of the Judicial Member of the Adjudicating Authority - Prevention of Money-Laundering - principal ground seeking to quash the impugned show cause notice issued under Section 8 of the PMLA that it was issued by a Bench of the Adjudicating Authority which did not have a Judicial Member - Held that:- In a case where serious questions of law and fact arise, as in the present case, it is essential that one of the Members of the Bench constituted under Clause (b) of Sub-Section (5) of Section 6 of PMLA by the Chairperson of the Adjudicating Authority should be a Judicial Member as he “with his judicial experience would, by virtue of his specialised knowledge, would be better equipped to dispense with speedy and efficient justice”. This appears to be import of the words “as the Chairperson of the Adjudicating Authority may deem fit”.

  It is an admitted position that the post of a Judicial Member under Respondent No.3 is still lying vacant and that the impugned show cause notice was issued and the order under challenge passed in the absence of such a Member. Apart from what have been observed earlier, in a proceeding of the present kind, where orders were passed ex parte by the Adjudicating Authority in the absence of the Petitioner- University, it would have been essential for a Judicial Member to be part of the Bench considering the nature of the lis before it to ensure that the orders are passed in satisfaction of all the principles relevant and acceptable in law.

  The Petitioner-University, apart from showing technical flaws in the constitution of the Bench, concededly has been unable to place anything before this Court to indicate that they have been prejudiced in any manner. It is also conceded that the Petitioner- University has not yet responded to the show cause notice. It is of the considered opinion that it would be appropriate for the Petitioner-University to approach the Adjudicating Authority first and place all his grievances before it.

  In order to allay the apprehensions expressed by the Petitioner-University, it would be sufficient to direct the Respondent No.1 to first take up with the appropriate Ministry for appointment of a Judicial Member under Clause (a) of Sub-Section (3) of Section 6.

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• 2015 (9) TMI 1572
  

  Company Court in India territorial jurisdiction - petition for winding up of the Company having its registered office in India - Company Petition by the appellant Trustee - winding up petition - Held that:- It cannot be denied that filing of a winding up petition on account of the Company being unable to pay its debts is a proper course, which can be taken by the creditor. A creditor, in its wisdom, may chose to file a suit for payment of its debts, but merely because of having such a right available, would not bar the creditor from filing a winding up petition, where the debts are admitted by the Company and it is unable to pay. By saying this, we are not recording a finding to the effect that the Company is unable to pay its admitted debts, but where the Company Petition has been filed on the ground that there are admitted debts to be paid by the Company to the appellant, which it is unable to pay, it would be for the Company Court to take a final decision in the matter and then decide whether, in the facts of the case, the Company is to wound up or not. However, saying that because of clause 13.3 of the Trust Deed, the option of filing of Company Petition by the appellant Trustee is taken away, would not be correct.

  As we have already observed above, questions of law can always be looked into by the Courts in India by applying, either Indian law or English law, as the case may be. For deciding this question, all that would be required is interpreting the provisions of the Trust Deed by applying Indian law or English law. In our view, the same can always be done by the Company Court, if such question is raised before it during the course of the proceedings.

  The position of law is absolutely clear, that it is for the company petitioner to prove that the debt liable to be paid is either admitted or duly proved, and also that the company is unable to pay such debt. It is only in such circumstance, the petition for winding up would be allowed. In the present case, since such question has not been gone into by the Company Judge, who has dismissed the petition only on the ground of lack of jurisdiction, we would not be inclined to make any observation in this regard, and would leave it to the Company Court to record its finding on this issue.

  Thus we are of the opinion that the dismissal of the Company Petition on the ground of jurisdiction, cannot be sustained in the eye of law. Accordingly, the judgment of the Company Court dismissing the Company Petition, is set aside and the matter is remanded back to the Company Court for fresh decision

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• 2015 (9) TMI 1571
  

  Dismissal of appeal - failure of assignee to file an application to continue the proceedings - appellant had released her interest in the suit property in favour of her daughter Smt. Padmavathi on 11.4.2011 and said Padmavathi, in turn, had transferred the property in favour of Mr. G.R. Ramesh vide sale deed - Held that:- We have heard learned counsel for the parties and opine that the impugned judgment is patently illegal. Merely due to the assignment or release of the rights during the pendency of the appeal, the appellant did not in any manner lose the right to continue the appeal. Merely by transfer of the property during the pendency of the suit or the appeal, plaintiff or appellant, as the case may be, ordinarily has a right to continue the appeal. It is at the option of the assignee to move an application for impleadment. Considering the provisions contained in Order 22 Rule 10 and Order 22 Rule 11 of the Code of Civil Procedure, the impugned judgment and order of the High Court cannot be allowed to be sustained.

  Ihe legislature has not envisaged the penalty of dismissal of the suit or appeal on account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee. High Court has gravely erred in law in dismissing the appeal on the aforesaid ground.

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• 2015 (9) TMI 1570
  

  EOU - Refund of service tax paid - goods exported to outside countries - denial of refund on the ground that the disputed services are not confirming to the definition of ‘Input Service’ contained in Rule 2(l) ibid and also there is no nexus between the disputed services with the goods manufactured by the respondent - Rule 5 of the Cenvat Credit Rules, 2004 - Held that: - the disputed services are confirming to the definition of ‘input service’ and also the nexus has been established either directly or indirectly with the manufacture of the final products in the factory of the respondent - the Respondent is eligible for refund of service tax paid on the disputed services, in terms of Rule 5 ibid - appeal dismissed - decided against Revenue.

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• 2015 (9) TMI 1569
  

  Refund claim - unjust enrichment - amount credited to Consumer Welfare Fund in terms of Section 11B(2) of the Central Excise Act, observing therein that on the basis of C.A. certificate, it has been certified that the appellant have received the amount from M/s Indofil - Held that: - the language of the C.A. certificate is erroneous in view of the audited balance-sheets & records examined in the course of hearing - the appellant have shown more than the amount recovered from M/s Indofil under the 'head expenses' received on 31.03.2004 which has been carried forward year to year, which is evident from the balance-sheet of 31.03.2013. In this view of the matter, no unjust enrichment is applicable on claim of refund in dispute - adjudicating authority is directed to grant refund within a period of 45 days - appeal allowed - appeal allowed - decided in favor of appellant.

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