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2020 (3) TMI 1467
Restraint on Appellants from transferring, alienating or creating any charge on the property - seeking direction to Appellants to handover the vacant and peaceful possession of the property to the Liquidator within 15 days - HELD THAT:- Till passing of the order (in C.A No. 266 of 2020 dated 07.01.2020) by the Adjudicating Authority taking the possession of the aforesaid property by the Liquidator is hereby stayed.
Appeal disposed off.
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2020 (3) TMI 1466
Maintainability of appeal against the interlocutory order - Norms to be maintained with regard to evaluation of answer papers - HELD THAT:- On going through the order which is under challenge, it is clear that it is not the main relief as prayed for, but an 'interim order' observing that the particular question answered by the writ Petitioner was not evaluated. The said evaluation could not have been done by the Court itself, in view of the various rulings and the matter had to be referred to the expert i.e. the evaluator, which alone has been done. Whether the said marks are to be added; whether any legal impediment is there in this regard; whether the evaluation done is right; whether secrecy has been maintained; whether it is in conformity with the binding precedents etc. are all matters to be decided after hearing both the sides, which is still to happen.
The scope and ambit of writ appeal against interlocutory order has been considered by a Full Bench of this Court in AJAY GUPTA VERSUS STATE OF CHHATTISGARH AND ORS [2017 (1) TMI 1827 - CHHATTISGARH HIGH COURT], where it has been observed that, unless the order concerned is having finality with regard to the prayers sought for, it is not maintainable.
The application for condonation of delay as well as writ appeal stand dismissed, without prejudice to rights and liberties of the parties to address the Court where the issue is pending on all grounds including the factual as well as the legal points.
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2020 (3) TMI 1465
Maintainability of the writ considering the nature of tender processes - Scope of judicial review - Auction process set aside - resultant award of tender also been quashed - BCCL vehemently contended that the present case was not one where judicial review was possible - application of standard to the facts of the present case to determine whether there were lapses on part of BCCL and C1-India.
Maintainability of Writ Petition - HELD THAT:- The scope of judicial review in tenders has been explored in-depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness. Phrased differently, Courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon - merely because the accusations made are against the State or its instrumentalities doesn't mean that an aggrieved person can bypass established civil adjudicatory processes and directly seek writ relief. In determining whether to exercise their discretion, writ courts ought not only confine themselves to the identity of the opposite party but also to the nature of the dispute and of the relief prayed for. Thus, although every wrong has a remedy, depending upon the nature of the wrong there would be different forums for redress.
In cases where a constitutional right is infringed, writs would ordinarily be the appropriate remedy. In tender matters, such can be either when a party seeks to hold the State to its duty of treating all persons equally or prohibit it from acting arbitrarily; or when executive actions or legislative instruments are challenged for being in contravention to the freedom of carrying on trade and commerce. However, writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources.
Regular recourse was made over the course of proceedings by learned senior Counsel for the first Respondent on terms of the NIT. Findings in the impugned order too were based upon disputed interpretation of such contractual terms. Thus, it is clear that there was neither any public law right of the first Respondent which was affected, nor was there any public interest sought to be furthered.
Infirmities in the auction process - HELD THAT:- In the present facts, it is clear that BCCL and C1-India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.
The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the Appellant committed illegality.
The appeal filed by Bharat Coking Coal Ltd., as well as connected appeals filed by M/s. R.K. Transport and M/s. C1 India Pvt. Ltd., are allowed. Resultantly, the appeal filed by AMR-Dev Prabha is dismissed.
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2020 (3) TMI 1464
Appointment of the Chief Executive Officer (CEO) of the first Respondent bank and its subsequent ratification by the Registrar of Cooperative Societies - applicability of 2016 Amending Act which inserted Clauses (a) and (b) in Section 54(3) of the 1960 Act - HELD THAT:- Clause (a) of Sub-section (3) stipulates that the eligibility criteria for the post of CEO of a Cooperative Bank are those prescribed by the RBI in this regard. Clause (b) stipulates that if the concerned Cooperative Bank fails to appoint a CEO under the eligibility criteria within a specified period, the Registrar may appoint an eligible officer of the Bank.
By the 2016 Amendment Act, Section 57-B was deleted and Clauses (a) and (b) were inserted in Section 54(3). Significantly, Sub-section (3) of Section 54 is not confined only to Cooperative Banks. Section 54(3) empowers the State Government to specify, by notification, the class of societies which shall employ officers from cadres maintained by Apex or Central Societies. The term 'class of societies' employed in Section 54(3) includes any type of society covered by the provisions of the 1960 Act, including Cooperative Banks (as resource societies).
In Commercial Tax Officer, Rajasthan v. M/s. Binani Cements Ltd., [2014 (3) TMI 905 - SUPREME COURT] the question concerned whether the Respondent-Assessee was entitled for the grant of an eligibility certificate for exemption from payment of Central Sales Tax and Rajasthan Sales Tax under Entry 4 in Annexure 'C' of the Sales Tax New Incentive Scheme for Industries, 1989. Annexure 'C' to the Scheme was titled the 'Quantum of Sales Tax Exemption under the new Scheme'. Entry 4 of the Annexure stipulated that 'Prestigious Units' would be entitled to a 75% exemption from tax liability with 100% in terms of Fixed Capital Investment.
This Court must ensure that neither provision - Section 49-E(2) nor Sections 54(3)(a) and (b) is reduced to a dead letter of law. It cannot be said that the carving out of Cooperative Banks for the appointment of their CEO from the enabling power conferred upon the State Government Under Section 54(3) applies in equal measure to those Cooperative Banks that are Central Societies within the ambit of Section 49-E(2).
In the present case, it was not disputed that the first Respondent is a Central Society falling within the ambit of Section 49-E(2) of the 1960 Act. In exercise of the power conferred by Section 54(3) of the 1960 Act, the State Government issued a notification dated 12 January 1971 specifying that Central Cooperative Banks were obligated to employ officers, according to their availability, only from the cadres created by the State Cooperative Bank. A similar notification was issued on 26 June 1971 in terms of which, Central Cooperative Banks were permitted to maintain cadres of officers and, it was stipulated that Village Cooperative Societies including Large Sized Agricultural Credit Societies would have to employ officers drawn only from the cadres maintained by the Central Cooperative Bank.
The seventh Respondent is not an officer from the cadre maintained by the Appellant. Consequently, the action of the first Respondent in seeking to appoint the seventh Respondent as the CEO is not sustainable in law. The appointment of the sixth Respondent as CEO was ratified by the Registrar of Societies by his reply dated 21 August 2017 and accepted by the BoD of the first Respondent on 25 August 2017.
The impugned judgment and order of the High Court dated 7 August 2018 is set aside - appeal allowed.
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2020 (3) TMI 1463
Nature of expenditure - Expenditure incurred on facilities put up but ownership lying with others/statutory authorities - assessee incurred expenses on railway siding which is essential for loading, transportation and unloading of petrol / diesel / LPG wagons which are essential for carrying on the business of the assessee and the ownership vests with the railway authorities - capital expenditure’ v/s revenue expenditure u/s 37(1) - HELD THAT:- The issue is covered by the decision of the coordinate Bench in assessee’s own case for the assessment year 2006-07 [2019 (10) TMI 1584 - ITAT MUMBAI] wherein held that expenditure as incurred on construction of Railway Track and siding is revenue expenditure and not a Capital expenditure. The coordinate Bench has decided the identical issue in favour of the assessee in assessee’s own cases pertaining to the earlier years - Decided in favour of assessee.
Expenditure incurred on salary, dearness allowance, postage, travel and other expenses for various modernization and up-gradation of projects in appellants existing line of business - HELD THAT:- The issue is covered by the decision of the coordinate Bench in assessee’s own case for the assessment year 2006-07 [2019 (10) TMI 1584 - ITAT MUMBAI] Accounting Practices cannot be override section 56 or any other provisions of the Act. The assessee incurred expenses on various personnel/ employee in the project for supervision and monitoring the various project and marketing allocation and refineries which is certainly allowable as business expenditure u/s 37(1) of the Act. Expenses were made on account of salary, Dearness Allowance (DA), Conveyance Expenses, postal charges, bank charges, rent for housing accommodation, Motorcar etc. which is certain of revenue expenditure.Decided in favour of assessee.
Deduction towards Post-retirement medical benefits and provision for Leave Encashment - HELD THAT:- As decided in assessee’s own case for the assessment year 2006-07 [2019 (10) TMI 1584 - ITAT MUMBAI] aside the matter to the file of AO to verify the Actuarial Valuation Report and allow the claims of the assessee in accordance with the this order. Accordingly, we allow this ground of appeal for statistical purposes.
Nature of loss - loss on sale of oil bonds - revenue or capital loss - HELD THAT:- The coordinate Bench has decided the identical issue in assessee’s appeal pertaining to the AY 2006-07 [2019 (10) TMI 1584 - ITAT MUMBAI] applying the ratio of judgement of the Hon’ble Apex Court in Patnaik & Co Ltd [1986 (7) TMI 6 - SUPREME COURT] decide the issue in favour of the assessee as held loss due to foreign exchange fluctuation in foreign currency transactions in derivatives has to be considered on the last date of accounting year and it is deductible u/s 37(1) of the Act. Thus this ground of appeal in favour of the assessee.
Disallowance u/s 43 or deduction u/s 37(1) - assessee had amortized an amount in P& L account, which was part of premium on forward exchange contracts booked for the purposes of external commercial borrowings (ECB) taken for the purpose of meeting the cost of various projects under taken by the assessee, which had been amortized over the duration of the forward exchange contracts - HELD THAT:- CIT(A) has partly allowed this ground of appeal by holding that provisions of section 43A are not attracted to the extent of assets acquired by the assessee within India, however, the grievance of the assessee is that the Ld CIT(A) has only allowed the depreciation on the expenditure treating the same as capital. The counsel has further pointed out that since as per the AS 11FEC is booked as revenue expenditure, the same is permissible deduction u/s 37(1) of the Act. Hence, in view of the facts and the circumstances we set aside this issue to the file of AO for deciding the issue afresh in the light of the submissions made before us after affording a reasonable opportunity of being heard to the assessee. Hence, we allow this ground of appeal of the assessee for statistical purposes.
Addition of de-capitalized assets and thereby allowing depreciation - HELD THAT:- CIT(A) has decided this ground of appeal in favour of the assessee holding that the A.O. cannot accept that portion, which suits the department in more collection of tax due to lesser claim of depreciation and deny corresponding claim of depreciation in reduction of book depreciation, which necessarily the appellant’s has to do. We do not find any reason to interfere with the findings of the Ld. CIT(A) as the same is based on the settled principles of law and as per the evidence. Hence, we uphold the findings of the Ld. CIT(A) and dismiss this ground of appeal of the revenue.
Disallowance u/s 14A r.w.r 8D - CIT(A) restoring the issue of disallowance u/s 14A of the Act for recomputed the disallowance holding that the provisions of Rule 8D cannot be applied retrospectively - HELD THAT:- Since, the findings of the Ld. CIT(A) are in accordance with the settled law, we uphold the order passed by the Ld. CIT(A) and dismiss this ground of appeal of the revenue.
Deduction u/s 80IB in respect of VREP –II unit - AO denied the same on the ground that VREP-II is only an extension of the old undertaking - CIT(A) allowed the same - HELD THAT:- We notice that the Coordinate Bench has decided the identical issue in favour of the assessee in appeal filed by the revenue [2019 (10) TMI 1584 - ITAT MUMBAI] in assessee’s case pertaining to the assessment year 2006-07. Since the findings of the Ld. CIT(A) are in accordance with the decision of the coordinate Bench, we do not find any reason to interfere with the order of the Ld. CIT(A). Hence, we uphold the findings of the Ld. CIT(A) and dismiss this ground of appeal of the revenue.
Deduction u/s 80IB in respect of Silvasa New Blending Plant - AO denied the claim of the assessee u/s 80 IB(4) for the first time in AY 2006-07 on the ground that the activity at the blending Plant does not come within the ambit of manufacturing - HELD THAT:- As decided in own case 2006-07 [2019 (10) TMI 1584 - ITAT MUMBAI] as noted that the end product manufactured by assessee as explain hereinabove is quite distinct and is a commercially different article than the major input rectified, which is fit for consumption / use for commercial use. That the changes made in input result in a new and different article is recognized in the trade as such. Hence, the assessee, in the instant case, satisfied the requirement, that it manufactured or produced an article or thing for the purpose of section 80-IB - Decided against revenue.
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2020 (3) TMI 1462
Rectification of mistake - error apparent from the face of record - petitioner was appointed as a Resolution Professional by the Committee of Creditors (CoC) and not an Interim Resolution Professional - HELD THAT:- The order is rectified - application disposed off.
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2020 (3) TMI 1461
Seeking sanction of resolution plan as approved in the meeting of Committee of Creditors (CoC) - HELD THAT:- In compliance of the proviso to Section 31(1) of the Code that the resolution plan has provisions for its effective implementation. The resolution plan states that the supervision of the resolution plan as finally approved by the Adjudicating Authority is proposed to be done by the Resolution Professional for the entire period of its implementation. It is also stated that in case any violation of any terms of the resolution plan by the Resolution Applicant or the Corporate Debtor is observed, the relevant provisions of the Code dealing with such violations shall be invoked. The Plan proposes an implementation Schedule of sixteen quarters or 48 months from the date of approval of the resolution plan. It is stated that the implementation of the plan will be made by making payments towards the outstanding CIRP costs, financial creditors, operational creditors, government dues and payment of other dues and towards unsecured loans/deposits and by fulfilling all other terms laid out in this resolution plan.
In Part D of the Resolution Plan (Page No. 74 of application), it is mentioned that the resolution applicant has furnished a performance guarantee by way of upfront payment of Rs. 1.5 Crores. As per the requirement of performance security, a Term Deposit Advice Certificate for a sum of ₹1.5 crores with Kotak Mahindra Bank is found attached with the application as Annexure A-16. The RP should ensure that the performance security is received as per the decision of the CoC.
The resolution plan submitted by Shri Narinder Garg, Smt. Manju Garg and Shri Shiv Garg as approved by the CoC under Section 30 (4) of the Code is hereby approved subject to comments in para No. 30 regarding performance security. The resolution plan so approved shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force such as authorities to whom statutory dues are owed, guarantors and other stakeholders involved in the resolution plan.
The moratorium order passed by the Adjudicating Authority under Section 14 of the Code on 13.11.2018 shall cease to have effect - The RP shall forward all records relating to the conduct of the CIRP and the resolution plan to the Board to be recorded on its database.
Application disposed off.
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2020 (3) TMI 1460
Limitation period for initiating action u/s 201(1) and 201(1A) - non deduction of TDS u/s 195 on payments made to international telecom operators - HELD THAT:- The Hon’ble Jurisdictional High Court in the case of UB Electronic Instruments Ltd. (2014 (12) TMI 635 - ANDHRA PRADESH HIGH COURT) has considered that there is no limitation period prescribed for initiating action u/s 201(1) and 201(1A) of the Act, but after considering case law on the subject clearly held that 4 years is to be treated as the reasonable period within which any penal action can be initiated against the assessee and failure to initiate steps within that period would disable the department to proceed against the assessee. This decision has been relied upon by the CIT(A) to grant relief to the assessee.
Since the decision relied upon by the CIT(A) is of jurisdictional High Court, this Tribunal is bound to follow - Decided against revenue.
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2020 (3) TMI 1459
Allowability of Periphery Development Expenses - CSR expenditure incurred by assessee voluntarily prior to asst. year 2015-16 - whether allowable business expenses - HELD THAT:- We note that the Periphery Development Expenses was nothing but a Corporate Social Responsibility (CSR) of the company which was carrying out the business of mining in Joda, Odisha. As Counsel submitted that it was mandatory for the mining industry to look after the development of the area in which the mines were operating and to create employment opportunities, providing educational facilities to the children etc. The expenses incurred by the assessee were on welfare schemes only which are for malaria eradication, distribution of mosquito nets, construction of mandaps etc. Therefore, these expenses were wholly and exclusively for the business purpose.
We are of the view that the CSR expenditure incurred prior to asst. Year 2015- 16 are allowable business expenditure as the same are wholly and exclusively incurred for the purpose of business. The explanation to section 37 of the Act restricting the allowance of CSR expenditure is prospective in nature and has no application prior to asst. Year 2015-16. For that we rely on the judgment of the co-ordinate Bench of ITAT Raipur in the case of ACIT, Circle 1(1), Bilaspur v. Jindal Power Ltd. [2016 (7) TMI 203 - ITAT RAIPUR] held Periphery Development Expenses, if incurred have to be taken as a business expenditure. The maximum that was to be explained as per the ld. Assessing Officer was 5%. He has sort of accused the assessee for spending more that 5%. This stand of the ld. Assessing Officer cannot be accepted inasmuch as how much the assessee spends legitimately is the decision of the assessee. The Revenue cannot question this expenditure as per the decision of the Apex Court in [2006 (12) TMI 82 - SUPREME COURT]. Decided against revenue.
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2020 (3) TMI 1458
Maintainability of appeal - Challenge to permission to amend the plaint.
The plaint contended that the appellant could not claim to be the proprietor of the trademark/label 'SUPERCROME', and could not, legally, use the said trademark without the leave and licence of the respondent, as, in the respondent's submission, the trademark 'SUPERCROME' was deceptively similar to the respondents trademark 'SUPERON' phonetically, visually and structurally.
HELD THAT:- The right to amend, as confirmed by Order VI Rule 17 of the CPC, has advisedly been made expansive, save and except in cases where the trial has already commenced. Order VI Rule 17 permits the Court to, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and specifically ordains that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". The provision, therefore, casts a mandate, on the court, to compulsorily allow all such amendments, as may be necessary for the purpose of determining the real questions in controversy between the parties - In the present case, the proviso does not call for application, as the trial, in the suit, had not commenced, when the respondent applied for permission to amend its plaint.
The controversy, between the appellant and the respondent, in the present case, was relating to alleged infringement, and passing off, by the appellant, of the registered trademark of the respondent-as the respondent would aver. Prior user is one of the essential indicia, to be examined while adjudicating such a claim of infringement and passing off. The date from which the plaintiff-respondent was using the 'SUPERON' trademark was, therefore, fundamental to adjudication of the controversy. The amendment, sought by the respondent, in para 8 of its plaint, was with respect to the date from which the respondent could claim user of the said trademark. That, by itself, would be sufficient to justify allowing of the amendment sought by the respondent.
The learned Single Judge cannot be faulted, in any manner, in allowing the prayer of the respondent, for permission to amend its plaint. The issue in controversy between the parties, related to infringement, or otherwise, by the appellant, of the registered trademark of the respondent, under the Trademarks Act, by usage of the trademark "SUPERCROME". The contention of the respondent, as the plaintiff in the suit, was that the trademark/name/label "SUPERCROME" was deceptively similar to the respondent's trademark "SUPERON". Fundamental, to adjudication of such a lis, would be the dates from which the appellant, and respondent, operated their respective trademarks.
The court, adjudicating on an application for permission to amend the plaint, at the pre-trial stage, is to ensure that, by adopting an unduly narrow approach, the right of the party, seeking amendment, to bring relevant facts, to the notice of the court, is not prejudiced. Were the prayer for amendment, as made by the respondent, to be disallowed, the respondent would be deprived of an opportunity to establish, before the court adjudicating the suit, its right to claim user, of the 'SUPERON' trademark since 1994. The prejudice that could result, to the respondent, as a consequence thereof, would be irreversible. Per contra, allowing the prayer for amendment, would result in no prejudice to the appellant, which had every opportunity to contest the claim of the respondent, to user, of the 'SUPERON' trademark since 1994. Application of the "prejudice" test, too, would, therefore, justify allowing, rather than disallowing, of the amendment sought, by the respondent.
The objections to the prayer of the respondent, for permission to amend the plaint are completely devoid of substance - there are no reason to interfere with the impugned order - appeal dismissed.
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2020 (3) TMI 1457
Penalty u/s 271FA - not filing the AIR for the relevant AY - Default under the provisions of Section 285BA(2) of the Act r.w Rule 114E - assessee is a co-operative bank - main contention of AR before the Tribunal was that there is reasonable cause as mandated u/s 273B for not filing the AIR for the relevant AY - scope amendment to Rule 114E of IT Rules 1962 - HELD THAT:- We found under the provisions-of Section 273B of the Act where penalty need not be imposed, if there exists a-reasonable cause.
We, on perusal of the facts of the case and the explanations and the grounds of appeal duly supported by the Paper Book and judicial decisions are of the view that-the amendment to Rule 114E of IT Rules has been effective from 1.4.2016 and,-further the AO has levied penalty for the F.Y. 2005-06 in the year-2017 and there was no provision under Rule 114E to include co-operative banks.
We found the submissions of the learned Authorized Representative are realistic-considering small activity of the Bank and limited staff which cannot be-overlooked. Accordingly considering the principles of natural justice and the facts, we found there is a reasonable cause in not submitting the information as the assessee was under Bona Fide belief. Accordingly we set aside the order of CIT-(Appeals) and direct the Assessing Officer to delete the penalty and allow the-grounds of appeal of the assessee. In the result, the assessee appeal is allowed.
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2020 (3) TMI 1456
Time Limitation - Validity of summons/preassessment notices - assessment could be made beyond the period of three years or not - Section 24(5) of the Pondicherry Value Added Tax Act - HELD THAT:- The writ petitions filed by the petitioner are premature and have been rightly dismissed by the learned Single Judge. The objections with regard to the limitation and other objections, if any, were required to be filed before the learned assessing authority himself and in that event, the assessing authority, would have record his findings on such objections during the course of assessment proceedings. The learned counsel for the petitioner has ill advised the petitioner to prefer these writ petitions.
The learned Single Judge has rightly dismissed the writ petitions with liberty to raise the objections before the assessing authority and relegated the assessing authority to decide the issue after affording an opportunity of personal hearing on the objections raised - Appeal dismissed.
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2020 (3) TMI 1455
Penalty u/s 271FA - assessee has not furnished Annual Information Return (“AIR”) as required u/s 285BA(1) read with Rule 114E of Income tax Rules for the financial year 2013-14 - As per assessee there was reasonable cause for the assessee in not filing the AIR as the “co-operative banks” were specifically included with effect from 01-04-2016 and hence there was a view that the co-operative banks are not required to furnish AIR information - HELD THAT:- We notice that the original provisions of Rule 114E of Income tax Rules did not include “co-operative bank” and it was inserted only in the amended provisions of Rule 114E, which came into effect from 1.4.2016. Accordingly, in our view, there is merit in the submission of the ld A.R that there existed an ambiguity as to whether the co- operative banks are required to comply with the provisions of Rule 114E of the Act, meaning thereby, the bonafide belief of the assessee shall constitute reasonable cause in terms of sec.273B of the Act for the failure in furnishing the AIR for the year under consideration.
In this view of the matter, the impugned penalty is liable to be deleted. Accordingly we set aside the order passed by Ld CIT(A) and direct the AO to delete the impugned penalty levied u/s 271FA of the Act for the year under consideration.Appeal of the assessee is allowed.
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2020 (3) TMI 1454
TP Adjustment - assessee is seeking exclusion of four comparable i.e. M/s Metro Shoes Limited, M/s VF Brands India Private limited, M/s Tommy Hilfiger Arvind Fashion Limited and Sreeleathers Limited and seeking inclusion of two comparables i.e. M/s Dindayal Jalan Textiles Limited and M/s Colorplus Fashions Limited and there are some objections about margin computation and some adjustments such as Risk Adjustment and adjustment in respect of custom duty paid on import of raw materials etc - HELD THAT:- The bench wanted to see the finding of DRP on these aspects and when the order of DRP was read, it was noticed that the order of DRP is cryptic and it is not a speaking and reasoned order. At this juncture, the bench made out this proposition that the matter has to go back to DRP for a fresh decision by way of a speaking and reasoned order. In reply, both sides agreed to this proposition but this was the common request of both sides that all aspect of the matter about T P adjustment should be left open for a fresh decision by DRP.
We restore the entire TP Matter to DRP for a fresh decision by way of a speaking and reasoned order after providing adequate opportunity of being heard to both sides. In view of this decision, we make no comment on merit.
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2020 (3) TMI 1453
Validity of order passed by the TPO u/s 92CA(3) - Computation of period of limitation - no draft assessment order was to be issued in this case - HELD THAT:- The assessment order was framed in this case on 30th October 2018 but then there is no dispute that if no draft assessment order was to be issued in this case, the assessment would have been time barred on 31st December 2017.
Once we hold that no draft assessment order could have been issued in this case, as the provisions of Section 144C(1) could not have been invoked in this case, the time limit of completion of assessment was available only upto 31st December 2017. The mere issuance of draft assessment order, when it was legally not required to be issued, cannot end up enhancing the time limit for completing the assessment under section 143(3). Accordingly, the assessment order passed by the Assessing Office must be held to be time barred. Assessee appeal allowed.
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2020 (3) TMI 1452
Rejection of two applications filed under Order 7 Rule 11 of the Code of Civil Procedure - suit for specific performance of contract and permanent injunction - whether acceptance of contentions raised on behalf of the revision applicants would lead to rejection of plaint in part or rejection of the plaint as a whole only against the revision applicants before this Court?
HELD THAT:- A perusal of the plaint in the present case and the agreement filed along with the plaint clearly shows that even as per the pleadings in the plaint and the clauses of the agreement in question, the parties to the agreement were only the plaintiff and the defendants, other than the revision applicants who had filed the applications for rejection of plaint as against them. There is no dispute about the fact that respondent No. 1 i.e., the original plaintiff entered into the said agreement only with the original defendant Nos. 3, 10, 11 and 19. It is an admitted position that other than the aforesaid defendants, none of the defendants were party to the said agreement dated 30/06/2016. The agreement could therefore be specifically enforceable only against those defendants who were party to the said agreement. There can be no doubt about the same - In the present case, the sole respondent has obviously not made any such statements in respect of the revision applicants because even as per the agreement on which he relies, it is evident that the said agreement was executed between him and only original defendant Nos. 3, 10, 11 and 19. Thus, there is absolute lack of pleadings and in fact no material to show that any agreement in the present case could be specifically enforced as against the revision applicants.
In the impugned order the Court below has accepted this position and at one place it has found that the revision applicants were not signatories to the agreement and, therefore, the agreement could not be enforceable against them and it would be inequitable to enforce specific performance of such contract. The Court below went to the extent of observing that it was almost a practice of fraud on the revision applicants in the present case, that the agreement was null and void as against the revision applicants and the suit could therefore not be decreed against them. It was also observed that it could be safely held that there was no cause of action as against the revision applicants - the Court below held that the application for rejection of plaint filed by the revision applicants could not be granted, because the rejection of the plaint had to be as a whole and the plaint could not be split, only to be rejected as against the revision applicants.
It is significant that the revision applicants are not seeking rejection of plaint qua a particular portion of the plaint or qua any relief sought in the plaint, but they are seeking rejection of the plaint as a whole, as against them. It is significant that in the plaint, the sole respondent has sought relief of direction to the defendants to accept the balance consideration in terms of the aforesaid agreement and to execute sale deed, further seeking a direction that if the defendants fail to do so, the same be directed to be executed through the Court and a permanent injunction is sought against the defendants to the effect that they should not sell the land to any other person - the Court below could not have rejected the applications filed by the revision applicants at Exhibits-83 and 101, after having accepted the contentions of the revision applicants, only on the ground that acceptance of their prayers would amount to splitting of the plaint and rejecting the same partially, which could not be permitted.
The impugned order passed by the Court below is quashed and set aside - Revision application allowed.
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2020 (3) TMI 1451
Learned Government Pleader for Commercial Tax stated across the Bar that till expiry of the statutory period of 90 days, no coercive steps will be taken by the respondent authorities in furtherance to the impugned order dated 25.02.2020.
HELD THAT:- List the case after six weeks.
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2020 (3) TMI 1450
Disallowance u/s. 14A r/w.r. 8D - sufficiency of own funds - Tribunal held that when the net worth as on 31.03.2010 is in excess of the investment made yielding the exempt income, disallowance u/s. 14A r/w.r. 8D is not required to be made - HELD THAT:- Tribunal has affirmed the order of the FAA and in addition relied upon the aforesaid decision of the Court. The issue raised is squarely covered by the decision of this Court in the case of CIT v/s. Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT]
After hearing learned counsel for the parties and on perusal of the order passed by the Tribunal, we do not find any error or infirmity in the view taken by it. Decided against revenue.
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2020 (3) TMI 1449
Rejection of Anticipatory Bail - special conditions when applicant can approach High Court directly by way of a petition under Section 438 of the Criminal Procedure Code - HELD THAT:- The learned Judge chose was correct to observe that it would be imprudent to exhaustively chronicle what would constitute special circumstances. A further caveat was placed with the learned Judge observing that the aforesaid exposition on the question should not be viewed as an attempt to exhaustively enunciate what would constitute special circumstances. The learned Judge thus left it entirely at the discretion of the Judge considering a petition for anticipatory bail to ascertain whether such special circumstances did in fact exist entitling the applicant to approach the High Court directly.
There can never be an encyclopedic exposition as to what would constitute special circumstances. The grounds on which a petition for anticipatory bail may be instituted before the High Court can neither be placed in a straightjacket nor can be comprehensively enumerated.
Vinod Kumar [2019 (12) TMI 1436 - ALLAHABAD HIGH COURT] rightly desisted from either postulating or particularizing the various circumstances in which an individual may be recognized as entitled to move the High Court directly and left it to the judicious discretion of the Court to be exercised bearing in mind the facts and exigencies of each particular case. The words of caution and circumspection as entered in GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT] and Sushila Agarwal [2020 (1) TMI 1193 - SUPREME COURT] in the context of the power conferred by Section 438 apply with equal force while understanding the nature and extent of the concurrent jurisdiction of the High Court. Regard must be had to the fact that it is well nigh impossible to predict upon imponderables such as the immanency of the threat, issues of access to justice and redress and the exigencies of a particular situation. It would not only be unwise but injudicious to frame what was dubbed in Sibbia to be "formulae of universal application". The Court would be well advised to leave it to a judicious exercise of discretion in the facts of each cause brought before it.
It was open for the learned Judge to assess the facts of each case to form an opinion whether special circumstances existed or not entitling the applicant there to approach the High Court directly - The special circumstances the existence of which have been held to be a sine qua non to the entertainment of an application for anticipatory bail directly by the High Court must be left for the consideration of the Hon'ble Judge before whom the petition is placed and a decision thereon taken bearing in mind the facts and circumstances of that particular cause. However special circumstances must necessarily exist and be established as such before the jurisdiction of the High Court is invoked - Reference disposed off.
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2020 (3) TMI 1448
Condonation of delay of 469 days in filing the appeal - sufficient explanation for delay was given or not - HELD THAT:- The Supreme Court has in STATE OF UP. VERSUS AMAR NATH YADAV [2014 (5) TMI 823 - SUPREME COURT] followed its earlier decision in OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] where it was observed Condonation of delay is an exception and should not be used as an anticipated benefit for the Government Departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
More recently, the Supreme Court in THE STATE OF BIHAR & ORS. VERSUS DEO KUMAR SINGH & ORS. [2019 (5) TMI 1660 - SC ORDER] has reiterated the position in Chief Post Master General holding that The law of limitation apparently does not apply to the State Government according to its conduct. That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General v. Living Media India Ltd.
The Court does not find a satisfactory explanation for a delay of 469 days in filing the appeal to have been offered by the Applicant/Appellant. The application is accordingly dismissed.
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