|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1471 Records
-
2021 (3) TMI 1454
Estimation of income - bogus purchases - CIT(A) restricting the disallowance of purchases to 12.5% - HELD THAT:- On a perusal of the order of the CIT(A), we find that the CIT(A) considered this aspect of the matter elaborately with reference to the submissions of the assessee and the averments in the Assessment Order and following various judicial pronouncements restricted the disallowance to 12.5% of the non-genuine purchases.
No infirmity in the order passed by the CIT(A) in restricting the addition/disallowance to the extent of 12.5% of the purchases. Grounds raised by the revenue are dismissed.
-
2021 (3) TMI 1453
Withdrawal of appeal - Settlement of dispute under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- It is found that since the case has been settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 the appeal lying pending in this tribunal shall be deemed to have been withdrawn in terms of section 127(6) of Chapter V of Finance (No.2) Act, 2019.
The appeal is disposed of as withdrawn.
-
2021 (3) TMI 1452
Maintainability of section 7 application - initiation of CIRP - default in paying the financial debt - debt which is due and payable, is barred by limitation or not - HELD THAT:- In view of the admission by the Corporate Debtor, there remains nothing further to be deliberated on. There is debt which is due and payable as it is not barred by limitation. The default has occurred in terms of provisions of Insolvency & Bankruptcy Code, 2016.
The application is otherwise complete and defect free. The name of the IRP has been proposed whose consent is on record at Annexure-'C', hence, we appoint the same person as IRP against him no disciplinary proceedings are pending - application admitted.
The application filed under Section 7 of the Insolvency & Bankruptcy Code, 2016 stands allowed.
-
2021 (3) TMI 1451
Dismissal of Resolution Plan already approved - failure to appreciate the fact that the COC did not consider the Resolution Plan of higher value submitted by Dr. Rajendar Singh viz. Rs. 32 Crores and approved the Resolution Plan of Successful Resolution Applicant having value of Rs. 30.10 Crores - HELD THAT:- Since the Appellant himself was not in the fray and as a member of the suspended Board of Directors was ineligible to submit a Resolution Plan, he could not be permitted to espouse cause of Unsuccessful Resolution Applicant thereby trying to meddle with the affairs of the Corporate Insolvency Resolution Process (CIRP) when the law forbids it to participate in such process. That apart, the Resolution Plan of the Successful Resolution Applicant has already been approved by the COC and is pending approval before the Adjudicating Authority. The Appellant having no locus and being ineligible to participate in the CIRP besides having no legal authority to espouse the cause, if any, of the Unsuccessful Resolution Applicant, cannot maintain the instant appeal. The Appellant is an alien who cannot enter the ring and participate in the CIRP Proceedings.
The appeal is accordingly dismissed for being not maintainable.
-
2021 (3) TMI 1450
Pronouncement of decision after completion of hearing by Settlement Commission - Text of the order un/s 245D(4) was pending to be issued which has not been done till date - petitioners have in effect prayed for the writ of mandamus commanding the respondent No.1 to pass an order under section 245D(4) of the Income Tax Act, 1961 in accordance with law - HELD THAT:- We dispose of this petition with the direction to the respondent No.1- Settlement Commission to consider the facts as stated by the petitioner and as recorded in the above order and if they are found to be correct, it may proceed to pass/issue appropriate formal orders on or before 31.03.2021 and if such facts are not found to be correct, the Commission would be free to proceed in accordance with law in its own wisdom and discretion.
-
2021 (3) TMI 1448
Principles of res judicata as well as constructive res judicata - Challenge to preliminary notifications bearing No. CI 196 SPQ 98 dated 19.12.1998, 29.01.2003 issued under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 and declaration and final notifications bearing No. CI 196 SPQ 98 dated 08.04.2003 and 05.07.2003 issued under Section 28(4) of the KIAD Act - seeking declaration that the acquisition proceedings initiated under the KIAD Act had lapsed as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Seeking quashing of the acquisition notifications - HELD THAT:- The filing of the writ petition seeking relief of quashing of acquisition notifications cannot be reconsidered and the writ petition has been rightly dismissed on the principles of res judicata as well as constructive res judicata. In this regard, it would be useful to note that this very appellant/petitioner had approached this Court in WP. Nos. 43358-59/2003. The said writ petition was partly allowed by the learned Single Judge of this Court by order dated 18.12.2003, inasmuch as 40% of the acquired lands i.e. the acquisition of the lands for township, construction of conventional centre are concerned was quashed. Insofar as 60% of the lands sought to be acquired for the formation of peripheral road, link road, service road and ramps are concerned were upheld.
Seeking a declaration that the acquisition of the lands in question had lapsed under Section 24(2) of the 2013 Act - HELD THAT:- Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of and owners whose lands are subjected to acquisition under any State enactment, such as the KIAD Act or BDA Act or Karnataka Urban Development Act, 1987 (KUDA Act). In fact, the Parliament itself has been conscious of the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands.
Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, KIAD Act, BDA Act or KUDA Act. The said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.
In view of the above catena of judgments of the Hon'ble Supreme Court in Offshore Holdings (P) Limited, [2011 (1) TMI 1322 - SUPREME COURT] BANGALORE DEVELOPMENT AUTHORITY AND ORS. VERSUS THE STATE OF KARNATAKA AND ORS. [2018 (8) TMI 2149 - SUPREME COURT] and in Girnar Traders [2011 (1) TMI 1343 - SUPREME COURT], reliance cannot be placed on the judgment of the Division Bench of this Court in H.N. Shivanna [2012 (11) TMI 1333 - KARNATAKA HIGH COURT] to hold that in the absence of any time limit fixed under the provisions of KIAD Act for passing of an award, it would have to be made within a reasonable time, which is two years and if the award has not been passed within the said time, it would lead to grant of declaration that the acquisition has lapsed.
Therefore, the petitioners herein cannot be granted relief on the basis of the dictum of the Division Bench in H.N. Shivanna and reliance placed on the said judgment by learned counsel for the petitioners is of no assistance to them. This is because the judgments of the Hon'ble Supreme Court in the case of M. Nagabhushana [2011 (2) TMI 1167 - SUPREME COURT] and Anasuya Bai [2017 (1) TMI 1828 - SUPREME COURT] rendered under the provisions of the KIAD Act hold the field. Similarly, the judgments of the Hon'ble Supreme Court in the case of Offshore Holdings (P) Limited [2011 (1) TMI 1322 - SUPREME COURT] and Bangalore Development Authority which are rendered under the provisions of the BDA Act, 1976 are binding on this Court.
The learned Single Judge was right in holding that the provisions of Section 24(2) of the 2013 Act, is not applicable to an acquisition proceeding initiated under the provisions of the KIAD Act. Hence, there are no merit in the appeal.
Appeal dismissed.
-
2021 (3) TMI 1447
Seeking stay of the operation of the impugned order during the pendency of the present petition and/or to stay the final decision on the bail application filed by the respondent during the pendency of the present petition - HELD THAT:- After arguing for some time, learned counsel for the parties are ad idem that the impugned order be set aside and case be remitted to the learned Sessions Judge-cum-Special Judge, Gurugram under the Prevention of Money Laundering Act, 2002 to decide the matter afresh, after taking into account all aspects of the matter, as well as judgments cited by respective counsel for the parties by hearing the case as item No.1 on 02.03.2021 at 10:00 a.m. positively.
The matter remitted to the learned Sessions Judge-cum-Special Judge, PMLA, Gurugram to decide the matter afresh after taking into account all aspects of the matter - Petition disposed off.
-
2021 (3) TMI 1446
Grant of bail - Bike Boat Scheme - huge amount of the investors has been diverted by M/s. G.I.P.L. in the scheme of the applicant - HELD THAT:- As is evident from the record, applicant is not named in the F.I.R. He is not the Director, signatory or shareholder in M/s. G.I.P.L. Although allegation against the applicant is that investors' amount of the Bike Boat Scheme launched by M/s. G.I.P.L. was diverted to the applicant's company and application said to have been moved by the applicant's company does not bear the signature of the person moving it and said person had resigned from the post of Director prior to the date of moving the application yet commercial space has been allotted in the scheme launched by the applicant in favour of M/s. G.I.P.L. and its sister concern and possession over the commercial space has also been taken. The said allotted land is reported to be attached by the Enforcement Directorate in the proceedings started against main accused but accounts of the applicant's company have not been attached.
In view the facts and circumstances of the case, role assigned to the applicant to connect him with the present matter, comparing the same with the ingredients of the offences levelled against him in the FIRs in the present matters and also taking into consideration the settled principles of law for granting bail, without expressing any opinion on the merits of the case, the court is of the view that it is a fit case for bail.
The bail applications are allowed.
-
2021 (3) TMI 1445
Condonation of delay of four days in filing appeal - sufficient cause for filing the Appeal in time or not - Appellant claims and it has been argued that no free copy of the Order dated 08th May, 2019 was received by the Appellant or the Corporate Debtor - HELD THAT:- The argument that free copy was not served on the Appellant is not relevant. IBC does not have provision to serve free copies. Even if one is to rely on Section 421 (3) of the Companies Act, 2013, there is Judgment in the matter of Sagufa Ahmad and Ors. Vs. Upper Assan Plywood Products Pvt. Ltd. [2020 (9) TMI 713 - SUPREME COURT] passed by the Hon’ble Supreme Court of India which would be relevant. If the Appellant did not rely on supply of free copy and applied for certified copy and filed Appeal based on certified copy then the Appellant cannot rely on Section 421 (3) of the Companies Act, 2013, to count limitation.
Under Section 61 of IBC, the appeal has to be filed within 30 days. This Tribunal may allow an appeal to be filed after the expiry of said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal in time but such period shall not exceed 15 days. Thus the period of appeal is 30 days and the delay which this Tribunal can condone is only of 15 days over and above the period of appeal. For reasons discussed above, even if limitation was to be counted from 07th June, 2019 as mentioned, the appeal filed on 13.08.2019 must be said to be barred by limitation as it was not filed within 30 days plus 15 days of knowledge.
The Application to condone the delay is rejected. The Appeal being time barred, the same is rejected.
-
2021 (3) TMI 1444
Liquidation of Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - opportunity of hearing was not provided to Appellants - violation of principles of natural justice - HELD THAT:- During Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor, no Expression of Interest (EoI) was received and the Committee of Creditors (COC) in its meeting held on 3rd September, 2020, passed the Resolution for the liquidation of the Corporate Debtor. In absence of any EoI being filed and no Resolution Applicant coming forward with a viable and feasible Resolution Plan, no option was left with either the COC or the Adjudicating Authority but to send the Corporate Debtor into liquidation.
The explanation to Section 33(2) by Act No. 26 of 2019 enforced w.e.f. 16th August, 2019 sufficiently makes it clear that the COC is empowered to take decision to liquidate the Corporate Debtor any time after its constitution and before the confirmation of Resolution Plan which, in plain terms, gives a pre-eminent position to the COC in taking such business decision in exercise of their commercial wisdom even when a Resolution Plan duly approved by it with requisite vote share is pending before the Adjudicating Authority for approval.
In view of the same, it should not lie in the mouth of the Appellant that it was not given an opportunity of being heard, more so when the Corporate Debtor was contesting the matter and duly represented.
There are no merit in this appeal. The same is dismissed.
-
2021 (3) TMI 1443
Levy of GST on broken rice, bran and husk - consideration payable in terms of Section 2(31) of the Goods Service Tax Act 2017 - whether High Court has erred in holding that in terms of Clause 17 of the agreement, the consideration was only the price for milling of paddy, as fixed? - HELD THAT:- Issue notice, returnable in eight weeks.
Till the next date of listing, no coercive steps shall be taken against the petitioners on the basis of the impugned judgment and order of the High Court dated 20 November 2020 in WP No 45971 of 2018.
-
2021 (3) TMI 1442
The judgment was delivered by Hon'ble Mrs. Sunita Agarwal and Hon'ble Mrs. Sadhna Rani (Thakur), J. The appellant was represented by Hare Krishna Mishra, and the respondent was represented by C.S.C., Shyam Mani Shukla. The writ petition was dismissed as withdrawn upon the petitioner's counsel stating that they do not want to press the petition.
-
2021 (3) TMI 1441
Maintainability of petition - petition not pressed - HELD THAT:- The petitioners states that the first information report was lodged against the petitioner no. 2 under Section 366 IPC and at this stage he does not want to press the present writ petition and the same may be dismissed as not pressed.
The writ petition is dismissed as not pressed.
-
2021 (3) TMI 1440
Accrual of income in India - Alleged Permanent Establishment ('PE’) in India of the Appellant under the Article 5(1) and 5(2)(i) of the India - UAE Tax Treaty (‘Tax Treaty’) - HELD THAT:- As decided in [2019 (12) TMI 1667 - ITAT DELHI] concurrent reading of the Strategic Oversight Agreements (SOA), the assessee has been technically operating the hotel belonging to the owners namely, Asian Hotels Ltd. (AHL) through the employees who are recruited by them. The hotel premises have been at the disposal of the assessee during their period of stay. The employees has stayed for a period of 158 days as per the assessee in India while rendering the services. In terms of OECD commentary on Article 5(1) the assessee can be said to be having a permanent establishment owing to existence of a place of business i.e. a facility such as premises, and that place was fixed and established as a distinct place with certain degree of permanence and the foreign enterprise (the assessee) is carrying the business through this fixed place i.e. the premises of the hotel. The assessee can be said to be dependent on the personnel to conduct the business of the foreign enterprise in the State in which the fixed place situated. The assessee is found to be meeting all these requirements stipulated in the OECD.
The place of business may also be situated in the business facilities of any other enterprise too. Thus, it can be said that the assessee who is running the business operations at the premises available for constant disposal in the hotel can be said to be a place of business. The availability of an office premises to a foreign company in the premises of the contracting party in order to ensure that both the parties comply with their obligations to the contract for a long period of time will constitute a permanent establishment. As long as, the premises is at the disposal of the assessee and having the right to use the premises for the purpose of the assessee’s business on behalf of the party to the agreement can constitute a fixed place PE. We also find that the physical criteria (existence of a geographical location), subject to criteria (right to use the place) and the functional criteria (carrying on the business through that place) as mentioned in the OECD principles with relation to the existence and determination of PE as held by the Mumbai Tribunal in the case of Air Lines Rotables Vs JDIT [2010 (5) TMI 683 - ITAT MUMBAI] have been found to be met by the assessee before us, so as to treat them as having a PE in India.
Attribution of profits to alleged PE of the Appellant in India inspite of entity level operating losses - alternative taxation of India source income as ‘Royalty’ under Section 9(1)(vi) of the Income Tax Act, 1961 (‘the Act’) and Article 12 of the Tax Treaty - For the sake of ready reference and convenience, operative part of the order [2019 (12) TMI 1667 - ITAT DELHI] as based on the clauses of the Strategic Service Agreement and Strategic Oversight Agreements, we hold that the revenue’s earned by the assessee are taxable under Article 12 of the DTAA. Regarding the determination of the profit, taken up at ground no. 4 by the assessee, we hereby hold that the taxable profits may be computed in accordance with the provisions of Section 44DA of Indian Income Tax Act and Article 12 of Indo-UAE, DTAA. During the arguments, it was also submitted that the assessee has incurred losses in the assessment year 2008-09. The assessed be given an opportunity of submitting the working of apportionment of revenue, losses etc. on financial year basis with respect to the work done in entirety by furnishing the global profits earned by the assesse, so that the profits attributable to the work done by the PE can be determined judiciously. The same may be considered while determining the taxable profits in India in accordance with the provisions of Section 90(2).
Appeal of the assessee is partly allowed.
-
2021 (3) TMI 1439
Permission to withdraw the writ petition - Permission to complete obligation of manufacturing and exporting copper wire by purchasing additional copper of the same grade from the open market - seeking extension of the Advance Authorisation Licenses which has been issued - HELD THAT:- Considering the nature of the matter, the Petitioner is permitted to withdraw the present writ petition and make a representation before the DGFT. If such a representation is made, the same shall be considered and decided within a period of 45 days. The remedies of the Petitioners, if any, upon the said decision being taken by the DGFT, are left open. Needless to add, this Court has not examined the merits of the present case.
The petition is dismissed as withdrawn.
-
2021 (3) TMI 1438
Doctrine of forum non convenience - Territorial jurisdiction to entertain the writ petition - impugned order was passed by the Employees Provident Fund Appellate Tribunal situated in Delhi - Petitioner is situated in Faridabad in Haryana - HELD THAT:- In the facts of the present case, as they emerged before the Delhi High Court, it is apparent that the Appellant, Dina Nath Public School, is situated in Faridabad, Haryana. Likewise, the second and third Respondents are also situated in Faridabad. During the course of the hearing, learned Counsel appearing on behalf of the third Respondent, who is a former employee of the school, also stated that it would be more convenient for her to pursue the proceedings before the Delhi High Court as opposed to the Punjab & Haryana High Court at Chandigarh. Be that as it may, having regard to the fact that the parties are all situated at Faridabad and since the Delhi High Court has, as a matter of principle followed its own earlier decision and come to the conclusion that it had territorial jurisdiction, but declined to entertain the writ petition only on the ground of forum non-convenience, we are inclined to set aside the impugned order and to restore the proceedings back to the Delhi High Court for disposal.
The impugned order set aside - the writ petition filed before the Single Judge shall stand restored to the file for disposal on merits.
-
2021 (3) TMI 1437
Penalty u/s 15HA of the SEBI Act - Jurisdiction of the Special Court treating offences committed territorially under the SEBI Act - scope of proceedings after the amendment of the SEBI Act 2014 and offences under the SEBI Act committed prior to the 2002 amendment - HELD THAT:- As petitioner seeks almost a mercy relief qua the interest payable on the penalty imposed of Rs.1 crores which amount stands finalized right up to the Supreme Court. However, it is not a case where the petitioner has paid this amount and seeks some indulgence on interest.
At the request of petitioner on instructions last opportunity is granted to deposit the amount of Rs.1 crore with the respondent on or before 15.04.2021, failing which no further consideration will take place and the Special Leave Petition will stand dismissed without any further order.
List for directions on 15.04.2021.
-
2021 (3) TMI 1436
Maintainability of appeal in Tribunal on low tax effect - HELD THAT:- The stand of the Revenue is that after circular no.17/2019, the Department has issued circular no.23/2019 dated 6.9.2019. According to the new circular certain classes of cases have been carved out from availing of the benefit of circular no.17 of 2019.
We have discussed this issue in our order [2020 (9) TMI 1252 - ITAT AHMEDABAD], and we have held that on 14.8.2019 when the appeals were dismissed on account of low tax effect involved in them by virtue of relief given by the CIT(A), the condition for exclusion of certain classes of cases was not available. Following our order extracted (supra), we find no merit in these misc. applications of the Revenue. They stand dismissed.
-
2021 (3) TMI 1435
Disallowance u/s 14A r.w.r.8D - whether no exempt income is earned? - as per CIT(A) assessee has received dividend income from only one company - HELD THAT:- It is true that the assessee has earned dividend income which has been claimed as exempt. It is equally true that certain expenses need to be disallowed u/s 14A r.w.r. 8D of the Rules.
There is no dispute that the assessee has received dividend income only from one company, namely, Times of Money Ltd - AO should have considered only those investments which yielded exempt income. We find that the directions of the ld. CIT(A) are in consonance with the provisions of the law. We, therefore, do not find any reason to interfere with the same.
Disallowances of expenses - HELD THAT:- As CIT(A) noticed that similar issues were considered by the Tribunal in assessee’s own case in A.Ys 2006-07 to 2008-09 and following the findings of the Tribunal, the ld. CIT(A) deleted the same.DR could not bring any distinguishing decision in favour of the Revenue.
We find that the Tribunal [2017 (7) TMI 172 - ITAT DELHI] for A.Ys 2006-607 to 2008-09 has deleted the disallowance.
Depreciation on software licences @ 25% OR 60% - CIT(A) deleted the disallowance - HELD THAT:- CIT(A) found that similar issue was decided by his predecessor in A.Y 2009-10 [2022 (5) TMI 1591 - ITAT DELHI] in favour of the assessee - Since the deletion has been made following his predecessor, we do not find any error or infirmity in the findings of the ld. CIT(A).
Revenue appeal dismissed.
-
2021 (3) TMI 1434
Dishonour of Cheque - factum of settlement has already been recorded by the learned Metropolitan Magistrate - HELD THAT:- Keeping in view that the dispute between the parties has been amicably resolved, this Court is inclined to quash the FIR in question, as no useful purpose would be served in continuing with the proceedings arising out of the present FIR.
FIR No. 390/2019, registered at police station Vikas Puri, New and consequent proceedings emanating therefrom are hereby quashed - Petition allowed.
........
|
9911796707
