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Showing 21 to 40 of 1396 Records
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2021 (4) TMI 1377
Surrender of tenancy rights in favor of the Bihar State Sunni Wakf Board and the subsequent induction of a new tenant - power of karta to handover of vacant possession to the Plaintiff - joint family business or not - Karta of joint family business has got authority to surrender the joint family business or not - surrender of joint family business or premises of joint family business - estoppel against the statute.
Jurisdiction to entertain the suit filed by the Plaintiff - HELD THAT:- It is not open to the Appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The Plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the Appellant who then filed an application for transfer of the suit to the Wakf Tribunal - The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where Plaintiff has invoked the jurisdiction of the Wakf Tribunal.
The argument raised by the learned Counsel for the Appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the Plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the Appellant as well as by the Waqf Board - it is not open to the Appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case.
Whether the order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court Under Article 226 of the Constitution of India as only a revision in terms of proviso to Sub-section (9) of Section 83 of the Act could be preferred? - HELD THAT:- The judgments referred to by the Appellant in Sadhana Lodh [2003 (1) TMI 701 - SUPREME COURT] and of Patna High Court in MD. WASIUR RAHMAN, HAJI MD. SAGHER VERSUS THE STATE OF BIHAR, THE D.C.L.R., SITAMARHI, THE CIRCLE OFFICER, THE EXECUTIVE OFFICER, THE DISTRICT AUQAF COMMITTEE, THE PRESIDING OFFICER, BIHAR, THE CHAIRMAN, BIHAR STATE SUNNI WAQF BOARD, THE CHIEF EXECUTIVE OFFICER, MD. NEYAZ AHMAD, [2018 (4) TMI 1982 - PATNA HIGH COURT] are not applicable to the facts of the present appeal. Sadhana Lodh is a judgment wherein an award of the Motor Accident Claim Tribunal was challenged by way of a Writ Petition. This Court held that the Writ Petition was not maintainable when an alternative remedy is provided under a statute
Non-appreciation of facts in a petition Under Article 227 of the Constitution - HELD THAT:- A perusal of the proviso to Sub-section (9) of Section 83 of the Act shows that it confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination. In fact, the statutory provision is acceptance of the principle that the jurisdiction of the High Court Under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India and Ors. [1997 (3) TMI 90 - SUPREME COURT] - Judicial orders of the civil court are not amenable to writ jurisdiction Under Article 226 of the Constitution.
When a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction Under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition Under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition - The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to Sub-section (9) of Section 83 of the Act does not act as the appellate court.
Whether Shri Devendra Prasad Sinha was running the joint family business and/or whether the act of surrender of possession was that of a joint Hindu family business or only of surrender of tenancy; or that as a Karta, surrender of tenancy was for the benefit of the joint Hindu family? - HELD THAT:- The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card un-less there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises - the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Business. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise.
Mere payment of rent by great grandfather or by the grandfather of the Plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis.
Whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of tenancy is in fact for the benefit of the joint family? - HELD THAT:- The learned High Court found that the letter of surrender was not reliable or tenable. The executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a witness as DW-5 - Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the Plaintiff who is not a party to such transaction. It is one thing to say that the document is unreliable and another to say that the document does not bind the Plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family.
The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs - appeal allowed.
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2021 (4) TMI 1376
Bogus LTCG - exemption of Long Term Capital Gain u/s 10(38) arising from sale of equity shares of listed company denied carried out through a recognized stock exchange and shares been transferred through Demat account - HELD THAT:- As regards the judgment of Hon’ble Supreme Court in the case of Suman Poddar [2019 (11) TMI 1237 - SC ORDER] we find that Hon’ble High Court of Delhi in its recent judgment in the case of PCIT V/s Krishna Devi & Others [2021 (1) TMI 1008 - DELHI HIGH COURT] dealing with the similar issue of claim of exemption u/s 10(38) of the Act for Long Term Capital Gain from sale of equity shares has duly considered the judgment of Hon’ble Supreme Court in the case of Suman Poddar V/s ITO (supra) and has confirmed the order of the Tribunal stating it to be the last fact finding authority who on the basis of evidence brought on record has rightly came to the conclusion that the lower tax authorities are not able to sustain the addition without any cogent material on record.
Dinesh Ramesh Vardhan [2020 (8) TMI 405 - ITAT MUMBAI] and Ashok Agrawal [2020 (11) TMI 650 - ITAT JAIPUR] the alleged transaction of earning Long Term Capital Gain from sale of equity shares of M/s Sunrise Asian Limited is neither bogus nor sham and thus eligible for exemption u/s 10(38) of the Act and no addition was thus called for u/s 68 of the Act. Decided in favour of assessee.
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2021 (4) TMI 1375
Seeking to protect two species of birds namely the Great Indian Bustard (GIB) and the Lesser Florican, which is on the verge of extinction - HELD THAT:- The laying of the underground power line more particularly of highvoltage though not impossible, would require technical evaluation on casetocase basis and an omnibus conclusion cannot be reached laying down a uniform method and directions cannot be issued unmindful of the fact situation. Though that be the position the consensus shall be that all low voltage powerlines to be laid in the priority and potential habitats of GIB shall in all cases be laid underground in future. In respect of low voltage overhead powerlines existing presently in the priority and potential habitats of GIB, the same shall be converted into underground powerlines.
The respondents No.5, 6 and 9 to 11 while arranging to lay the powerlines underground in respect of the powerlines, the feasibility of which is not in doubt shall proceed with the work right away. However, in cases where the respondents find that there are issues relating to feasibility, the matter shall be referred to the committee with all relevant material and particulars. The committee shall assess the matter and arrive at a conclusion as to whether the underground powerline is feasible or not. Based on the report to be rendered by the committee the further action shall be taken by the respondent.
In all cases where the overhead powerlines exist as on today in the priority and potential GIB area the respondents shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables into underground powerlines. In all such cases where it is found feasible to convert the overhead cables into underground powerlines the same shall be undertaken and completed within a period of one year and till such time the divertors shall be hung from the existing powerlines.
Petition disposed off.
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2021 (4) TMI 1374
Deduction u/s. 36(1)(viia) - assessee has made a provision for NPA of an amount but actually claimed in the return of income more - case of the AO is that the assessee is only eligible to the extent of provision made for NPA not for entire claim claimed by the assessee - CIT(A) allowed the entire amount claimed by the assessee - HELD THAT:- The similar issue has been considered in the case of State Bank of Patiala[2004 (5) TMI 12 - PUNJAB AND HARYANA HIGH COURT] and has held that making of provision for bad and doubtful debt equivalent to an amount claimed as a deduction in account books is necessary for claiming deduction u/s. 36(1)(viia) of the Act.
We find that the Hon'ble Punjab & Haryana High Court (supra) has laid down a clear ratio that to claim deduction making of provision for bad and doubtful debt equivalent to an amount claimed as a deduction in account books is necessary for claiming deduction u/s. 36(1)(viia) of the Act. Respectfully following the principles of precedent, we reverse the order passed by the Ld. CIT(A) - Appeal of the Revenue is allowed.
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2021 (4) TMI 1373
Suit for possession through specific performance of an agreement by way of execution of sale deed of land - it is alleged that the agreement dated 6.11.1992, put forth by the plaintiff was a forged document, which did not even bear their signatures.
Whether the courts below have misread and misinterpreted the agreement to sell Exhibit PW-1/A inasmuch as it clearly identifies the property subject matter of agreement to sell and the findings thus recorded are vitiated? - HELD THAT:- In the instant case, agreement to sell refers to a ‘Kutcha house’ allegedly owned and possessed by the defendants in an area of around 5 biswa at Kangar, Tehsil Haroli, District Una, with further rider that revenue papers regarding Khasra number etc., of the house would be produced at the time of registration of sale deed. Neither the land in question nor the house involved has been identified in the agreement. No khasra number finds mentioned in the agreement. The extent of the area alleged to have been sold by the defendants in the agreement is around 5 biswa, whereas the plaint talks about land measuring 0-9 marlas out of total land measuring 3 kanals and 4 marlas, comprised in specific khasra numbers - All material aspects which needed to be reflected with certainity have been left in the realms of speculation. Neither the agreement gives out clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted.
Whether the courts below were wrong in dismissing the suit for specific performance by holding it to be hit of Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act in the absence of any such plea raised by the respondents in the written statement and the findings thus recorded are beyond pleadings? - HELD THAT:- Section 29 of Indian Contract Act entitles a defendant to avoid an agreement if the same is void. Also the defendant is entitled to take the defence of vagueness & void nature of the agreement in order to avoid its specific performance under Section 9 of the Specific Relief Act. Such a defence would essentially revolve around frame of the agreement and its logical interpretation in the facts of the case. Agreement being vague & therefore un-enforceable is a plea, which can be raised by the defendants even without specifically expressing it in the written statement - In TILAK RAJ BAKSHI VERSUS AVINASH CHAND SHARMA (DEAD) THROUGH L. RS. AND ORS. [2019 (8) TMI 1899 - SUPREME COURT], the Apex Court was inter-alia considering two questions viz i) whether the High Court was right in, without even a plea, holding that the family settlement is vague and unenforceable and void ii) Whether the High Court was right in holding that the Courts could not exercise discretion under Section 20 of the Specific Relief Act 1963 as the contract is not specifically enforceable.
Whether the courts below have misread and mis appreciated the statements of PW-1 and PW-2 and the findings thus recorded are vitiated? - HELD THAT:- The stamp vendor was not examined by the plaintiff. Defendant No.2 Malkit Singh while appearing in examination-in-chief stated that Ext. PW1/A, dated 6.11.1992, was a forged document and never executed by the defendants. This witness was not at all cross-examined by the plaintiff in respect of the valid execution of the agreement. No suggestion was given to this witness by the plaintiff that he had executed the agreement. Burden of proving due execution of the agreement was on the plaintiff, which he failed to discharge. Under the circumstances, there was hardly any necessity for expert opinion about signatures on the document - Plaintiff miserably failed to prove due execution of the agreement (Ext. PW-1/A).
The agreement dated 6.11.1992 (Ext. PW-1/A) is vague & void, therefore, not capable of being enforced. Plaintiff even otherwise has failed to prove its execution by the defendants in accordance with law. No interference in concurrent dismissal of plaintiff’s suit by the learned Courts below, is called for.
Appeal dismissed.
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2021 (4) TMI 1372
Seeking grant of anticipatory bail - informant was abused by the applicant and co-accused, knowing that he belongs to scheduled caste - no specific role was assigned to the applicant in the F.I.R. - HELD THAT:- It is a settled principle of law that a man cannot be stated to be guilty unless his guilt is proved after adducing reliable evidence. Sending a person to custody after finding his guilt is a rule. But before finding the accused guilty, it is not always possible or permissible to conclude on the basis of the charge-sheet or on the basis of the process issued under Section 204 in a complaint case that custody of that person is necessary. The word "bail" has not been defined in the Code, the literal meaning of the word "bail" is to set free or liberate a person on security being given of his appearance.
The most crucial part of the investigation lies in the examination of witnesses. The statements made by them can hold a person guilty. The police officer who is investigating the case has been empowered to conduct witness examination. The witnesses are bound to answer the questions which are related to the case truly. Section 161 lays down the procedure for the examination of witnesses by the police.
There should be no delay on the part of the police officer investigating the case in examining the witnesses. In the event of a delay of the examination of the witness, the onus lies on the investigating officer for explaining the reasons for the delay.
The purpose of a charge-sheet is to notify a person of criminal charges being issued against them. After the charge-sheet is filed, the person against whom the charge-sheet has been filed comes to be known as an accused. The filing of charge-sheet with the magistrate indicates commencement of criminal proceedings.
The Hon'ble Supreme Court has held in number of cases that fair investigation, which precedes filing of charge-sheet, is a fundamental right under Article 21 of the Constitution of India. Therefore, it must be fair, transparent and judicious. A tainted and biased investigation leads to filing of a charge-sheet which is infact based on no investigation and therefore, the charge-sheet filed in pursuance of such an investigation cannot be held to be legal and in accordance with law.
In the present case, from the perusal of the statement recorded by the Investigating Officer, this Court finds that the incident in dispute took place on 04.04.2020 when the first corona wave was sweeping the country and the informant has stated that being a journalist, he got the crowd removed with the help of police since there were chances of spread of infection. Thereafter, the applicant and co-accused persons threatened him not to become a big journalist and he was subjected to caste related abuses and his mother and sister were subjected to abuses. When he tried to speak, they used the word "chamaar" etc., and he was beaten by legs and fists. When he raised alarm, Kamlesh and Rajbir Singh came and saved him. Thereafter, the accused persons left the scene, threatening him of life. Both the accused persons are habitual of misbehaving with the people of locality. The statements of other witnesses recorded by the Investigating Officer also proves the above allegations - From the statements of witnesses recorded by the Investigating Officer, the allegation of intimidation with intent to humiliate a member of scheduled caste in public view by taking his caste name is fully proved.
Bail application rejected.
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2021 (4) TMI 1371
Entitlement for rental income - grievance is that the Petitioners have moved applications before the NCLT and the same have not been taken up for hearing and are being adjourned from time to time - HELD THAT:- Taking on record the statements of ld. Counsels for both the Respondents, that the matter is listed tomorrow i.e. on 13th April, 2021, this Court does not deem it appropriate to pass any further orders. Needless to add that the difficulty of the Petitioners may be appreciated by the NCLT, and it is hoped that the applications of the Petitioners would be taken up for hearing and orders are passed expeditiously, and if possible, within a period of one month from today.
The present petition with all pending applications is disposed of.
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2021 (4) TMI 1370
Maintainability of petition u/s 9 of IBC - petition barred by time limitation or not - BIFR proceedings were finalized and was under implementation in respect of the defaulted outstanding debt of the workers/employees of the CD - commencement of CIRP in respect of the debt arising out of the Sanctioned Rehabilitation Scheme by the Hon'ble BIFR/AAIFR which is yet to be implemented after the BIFR/AAIFR stands dissolved - Pre-existing dispute or not - HELD THAT:- This case is a case as to how simple issues can be complicated inadvertently. As noted from the written submissions made by the Operational Creditor, issues involved is implementation of BIFR Scheme approved by the AAIFR which is to be treated as an approved resolution plan in terms of provisions of Section 252 r.w. EIGHTH SCHEDULE of Insolvency and Bankruptcy Code, 2016. Once this is so, application under Section 9 of Insolvency and Bankruptcy Code, 2016 is as such not maintainable because for non-implementation for an approved resolution plan, a different application has to be made as per the provisions of Section 33(3) of Insolvency and Bankruptcy Code, 2016.
From the perusal of 3rd proviso which was inserted in the EIGHTH SCHEDULE with effect from 24.05.2017 by the Insolvency Bankruptcy Code (removal of difficulties) order, any scheme sanctioned or under implementation in terms of provisions of SICA Act, 1985 is deemed to be an approved resolution plan and the same is to be dealt with in accordance with Part-II of the Code. Part-II of the Code pertains to Corporate Insolvency Resolution Process and also provide for passing of an order of liquidation under Section 33(2) of Insolvency and Bankruptcy Code, 2016 in case an approved resolution plan is not implemented. Any aggrieved party can initiate such action. Accordingly, this application is not maintainable and therefore, rejected.
Even otherwise, such application, is not maintainable because this application has been filed after expiry of 643 days from 01.12.2016, being the date of Insolvency and Bankruptcy Code, 2016 becoming effective and as per the 2nd proviso of the EIGHTH SCHEDULE, this should have been filed within 180 days therefrom. Thus, for this reason also, application filed under Section 9 of Insolvency and Bankruptcy Code, 2016, is not maintainable.
This application stands dismissed.
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2021 (4) TMI 1369
Restraining the appellant from invoking the shares pledged in its favour by the respondents/borrowers - HELD THAT:- It was obligatory for the learned Single Judge, while passing the order restraining the lenders/lessees from invoking the pledge of shares, to return at least a prima facie finding and provide some reason as to why the invocation of the pledge deserved to be interdicted by way of an interim measure. Unfortunately, there are no reasons forthcoming in the impugned order dated 26.03.2021 which, therefore, continues to operate as on date.
The operation of the orders dated 26.03.2021 and 08.04.2021 passed in the aforesaid OMPs, suspended till further orders - List on 27.05.2021.
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2021 (4) TMI 1368
Removal of attachment - certain transfers to be void or not - first charge over the properties in view of Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- When it is established that the earliest demand notice under the IT Act with reference to the assessment years 2012-13 and 2013-14 was issued by the Income Tax Authorities on 31.03.2015 prior to the mortgage executed in favour of the petitioner-Bank on 27.01.2016 and 06.02.2016, the provisions of Section 281 of the IT Act would be applicable and the question of priority would not arise, in view of the fact that once the provision of Section 281 of the IT Act is applied, then the said transfer become void ab initio and the mortgage or transfer made thereafter is consequently void. Such transfers are to be construed as fraudulent transfers or mortgage and therefore, the mortgage in favour of the petitioner-Bank cannot be held as valid in the eye of law and since it is held as invalid, the question of invoking Section 26E of the SARFAESI Act would not arise at all.
In view of the facts and circumstances that the earliest demand notice at the first instance issued by the Income tax Department on 31.03.2015 is not disputed, it is to be construed that the proceedings under the IT Act for recovery of tax dues were pending on the date, i.e., 31.03.2015 and therefore, any transfer made thereafter is hit by the provision of Section 281 of the IT Act and all such transfers are void and therefore, the subsequent mortgage became consequently invalid in the eye of law and therefore, the application of SARFAESI Act would not arise at all. Further, the scope of Section 26E of the SARFAESI Act is relatabe to the priority and the priority would arise only if more than one person could able to establish the right over the property and in the present case, when there is no right to mortgage was vested with the assessees, the question of priority would not arise at all.
When the assessee has no right to mortgage the property purchased, then the Bank cannot accrue any right to deal with the mortgaged property or to claim priority based on the provision of Section 26E of the SARFAESI Act.
The petitioner could not establish any right to deal with the property and even in such cases where such right are claimed, the persons aggrieved has to approach the Income Tax Authorities under Schedule 2 Rule 11 of the IT Act and in the present case, the question does not arise as the transfer itself became void.
Petition dismissed.
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2021 (4) TMI 1367
Fraudulent GDR issue - Fraudulent and Unfair Trade Practices relating to Securities Market - Sigle entity subscriber to the GDR issue - penalty on directors - HELD THAT:- As appellant Mr. Govind Das, Mr. Bharat Kumar and Mr. Avichal were admittedly independent non executive directors. The resolution itself would show that they did not participate in the issue of GDR proceeds at any point of time after passing of the resolution. All the necessary followup was to be carried by the Managing Director. No case of adverse inference that they should have taken efforts to bring back GDR proceeds was made out against them in any of the impugned order as argued before us and, therefore, they could not have been penalised or restrained as detailed supra.
Appellant Mrs. Jyoti Bankda is concerned, admittedly on the very day of the passing of the resolution she had resigned from the Directorship of the Company and the same was accepted. Necessarily she cannot be made liable for the subsequent acts of entering into account charge agreement by appellant Mr. Ajay Bankda, the Managing Director with the EURAM Bank on the strength of the resolution. Therefore, she also could not have been penalised or restrained by the respondent SEBI.
Appellant Mr. Ajay Bankda the then Managing Director of the Company, the Company itself and appellant Mr. Jagdish Bagaria, the Whole Time Director are concerned, they cannot escape the liability. The Company would be liable for the acts of the Managing Director. So also the Managing Director is also liable for any default committed by the Company.
Appellant Mr. Jagdish Bagaria was the Whole Time Directors and, therefore, he cannot plead that he was not aware of the day to day affair of the Company which included non return of GDR proceeds to the Company. Their involvement in the fraudulent activity as detailed supra is writ large from the record. Though the appellant Mr. Ajay Bankda claims that he had merely signed the documents religiously on instructions by the Lead Manager, being a Managing Director he cannot claim that he was not aware of the result of the account charge agreement i.e. misappropriation of the GDR proceeds.
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2021 (4) TMI 1366
Request for adjournment has been made on the ground that Mr. Prakash Shah, appellant has still not recovered from his illness. The matter is adjourned. List on May 21, 2021.
Parties are directed to take instructions from the Registrar 48 hrs. before the date fixed in order to find out as to whether the matter would be taken up for hearing through video conference or through physical hearing.
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2021 (4) TMI 1365
Suit filed for possession - Malaise of constant abuse of procedural provisions which defeats justice - Order XXI Rule 97 of the Code of Civil Procedure (CPC) - HELD THAT:- The vendor and her son (judgment debtors) after executing the sale deed in respect of a major portion of the property, questioned the transaction by a suit for declaration. The decree holders also filed a suit for possession. During the pendency of these proceedings, two sets of sale deeds were executed. The vendors' suit was dismissed-the decree of dismissal was upheld at the stage of the High Court too. On the other hand, the purchasers' suit was decreed and became the subject matter of the appeal. The High Court dismissed the first appeal; this Court dismissed the Special Leave Petition. This became the background for the next stage of the proceedings, i.e. execution. Execution proceedings are now being subsisting for over 14 years. In the meanwhile, numerous applications including criminal proceedings questioning the very same documents that was the subject matter of the suit were initiated. In between the portion of the property that had been acquired became the subject matter of land acquisition proceedings and disbursement of the compensation.
This Court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing [1872 (3) TMI 2 - PRIVY COUNCIL] which observed that the actual difficulties of a litigant in India begin when he has obtained a decree.
Thus, to avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, the Court must play an active role in deciding all such related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in any suit.
It is directed that all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers Under Article 227 of the Constitution of India and Section 122 of Code of Civil Procedure, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with Code of Civil Procedure and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.
Appeal dismissed.
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2021 (4) TMI 1364
Validity of seizure / requisition by income tax authority - assessment proceedings initiated by the jurisdictional AO at Kolkata - HELD THAT:- By order presently under challenge, the petitioner and others were noticed to appear before the jurisdictional AO on 10.03.2021 at Kolkata and certain other directions were issued in paragraph 8 of the order. In view of these directions, there is no reason to interfere in the matter at this stage.
We however direct the concerned respondents to invest the money in question in an interest bearing Fixed Deposit with a nationalized Bank initially for a period of three months with auto - renewal facility. The amount along with interest accrued thereon shall be subject to such orders as may be passed in the proceedings referred to in the order passed by the High Court.
The Special Leave Petition is, accordingly, dismissed.
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2021 (4) TMI 1363
Seeking grant of anticipatory bail - no approval has so far been sought from the Commissioner (Additional Director General, DRI) for any effective arrest of the applicant for an offence punishable under Section 135 of the Customs Act, 1962 - HELD THAT:- It has been submitted on behalf of the applicant thus that in the event of any notice being issued by the DRI, the applicant undertakes to join the proceedings.
It is apparent that the present application seeking grant of anticipatory bail is premature and is disposed of accordingly.
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2021 (4) TMI 1362
Classification of goods proposed to be imported - Portable Computers viz. Barcode Mobile Computers, RFID Mobile Computer and Tablet Mobile Computer - to be classified under heading 8471 or not - HELD THAT:- From the working and features of the impugned devices, it appears that these are not the units of ADP machines, but ADP machines themselves. Note 6(D) to chapter 84 lists certain separately presented products that are to be excluded from heading 8471, even if they can be classified as part of an ADP system. Note 6(E) to chapter 84 mentions that a machine incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. As the impugned devices, as described by the applicant, appear to be akin to ADP machines performing capturing of data and its further processing, notes 6(D) and 6(E) do not appear to have application in this case.
From the note, it is clear that a composite machine performing various functions is to be classified according to the principal function performed by such a device - In the instant case, these devices combine computing and scanning functions for monitoring deliveries, tracking assets, and managing inventory. 18 out of 36 devices also have communication capabilities. However, for the products under consideration, automatic data processing appears to be the main function, while other functionalities of said machines are not different from auxiliary functions that could be seen on any computer, such as desktop or laptop computers.
In circular no. 20/2013- Cus, dated 14.05.2013, clarification has been given by the Central Board of Excise and Customs (CBEC) regarding the classification of "tablet computers" under heading 8471 - as per the said circular, tablet computers are classifiable under heading 8471 and not under heading 8517 despite the fact that the product is having cellular connection functionality, considering its principal function as automatic data processing. Similarly, in this case, the principal function of the impugned devices is barcode scanning and data processing for monitoring deliveries, tracking assets and managing inventory. Therefore, these devices appear to merit classification under heading 8471 and not under heading 8517.
The devices under consideration are principally not telephones for cellular networks. In fact, 18 out of 36 models do not have the functionality of cellular connectivity, which shows that the SIM is not an integral part of these devices, as these devices are able to perform their primary function with or without the SIM card. These devices do not appear to be convenient for the purpose of telephony as a principal function. As per circular no. 20/2013- Cus., dated 14.05.2013, "the difference between a "smartphone" and "tablet computer", is not based on whether the product has a voice calling function or not, but on the principal features that a producer has intended for the device when designing and developing it". These devices are essentially ADP machines with additional connectivity capabilities, including cellular connectivity for 18 models - the devices under consideration are not classifiable as smartphones. They merit classification under subheading 8471 30 90.
Thus, the 36 devices are classifiable under Customs tariff heading 8471 and more specifically, under subheading 8471 30 90 of the first schedule to the Customs Tariff Act, 1975.
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2021 (4) TMI 1361
Disallowance of depreciation on assets given under finance lease - HELD THAT:- This Tribunal in assessee’s own case for assessment year 2011-12 and 2013-14 [2019 (6) TMI 660 - ITAT BANGALORE] considered similar issue by following decision of Hon’ble Supreme Court in case of ICDS vs CIT [2013 (1) TMI 344 - SUPREME COURT]. Subsequently, for assessment year 2014-15 [2020 (6) TMI 98 - ITAT BANGALORE]and for assessment year 2012-13 in [2020 (10) TMI 1352 - ITAT BANGALORE], this Tribunal had remanded the issue back to ld. AO for fresh decision after verifying if the terms and conditions mentioned in the lease agreement are similar to the terms and conditions that are mentioned by Hon’ble Apex Court in case of ICDS vs CIT (supra). As directed by this Tribunal that in the event there is no material variation in the context, then depreciation must be granted to assessee as claimed.
As the department has not been able to bring out any factual difference for the year under consideration vis-à-vis the preceding assessment years, we also remand this issue back to the Ld.AO with similar direction.
Not allowing set off of brought forward depreciation loss - HELD THAT:- We note that, as the OGE to the orders passed by this Tribunal in the preceding assessment years are pending with Ld.AO, the relief granted by this Tribunal was not available with the Ld.AO while passing the impugned order for year under consideration. It is noted that the ld. AO does not dispute regarding availability of set off of brought forward loss to assessee if any in the preceding year while computing income for the year under consideration. Therefore, set off of brought forward losses is to be granted, if there is loss for assessment years 2008-09, 2009-10 and 2013-14, after passing the OGE to the orders of this Tribunal for assessment years 2008-09, 2009-10 and 2013-14.
Direct the Ld.AO to pass the order giving effect to all the previous years from assessment year 2008-09 to assessment year 2014-15 and thereafter to provide the set off of brought forward losses.
TP addition - specified domestic transaction within the ambit of section 92B - re-characterisation of payment made towards administration and support services by assessee to Cisco India - Scope of omitted provisions - HELD THAT:- On combined reading of the omitted provisions and the inserted proviso to section 40A, it is amply clear that the new proviso to section 40A is a saving clause by virtue of which, any specified transaction on or before 01.04.2016 has to be tested as per the provisions of section 92C.
We therefore respectfully following the ratio laid down by Hon’ble Supreme Court in case of Kolhapur Canesugar works Ltd. [2000 (2) TMI 823 - SUPREME COURT] and General Finance Co. [2002 (9) TMI 3 - SUPREME COURT] hold that as the transaction under consideration is prior to 1/04/2016, has to pass through the tests laid down under the Transfer Pricing provisions.
Assistance staff for administrative support services and marketing and sales support services - whether assessee could have deployed its own employees for the day to day administrative functions and marketing services on its own? - assessee purchases goods from its AE which is sold to third-party customers who approach assessee for financial assistance for purchasing Cisco equipments. As assessee do not have its own staff, Cisco India provides administrative support services and marketing and sales support services - HELD THAT:- The transaction needs to be bench marked separately and there has to be a segregation based on the customers who approach assessee for financing/leasing after entering into agreement with the AE, and the leasing/financing activity that assessee has with the third-party customers independently. In our view, only such services that assessee is rendering to third-party for assisting them in financing/leasing, wherein the third-party directly enter into agreement with the AE could be considered to be interlinked with the international transaction entered into by assessee with its AE.
Assessee has been carrying out these activities in a bundled format in the preceding years which has not been objected by the Ld. TPO/AO. Further that all these expenses incurred by assessee towards administrative expenses and sales and marketing expenses stands subsumed in the operating expenses under TNMM for computing the arm’s length margin of the international transaction, a separate benchmarking may not be necessary. However all these things deserves verification at the end of Ld.AO/TPO. AO/TPO shall verify the transactions as indicated hereinabove. In the event the expenses are subsumed under TNMM we do not find any necessity for a separate benchmarking.
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2021 (4) TMI 1360
Attachment of Bank Account - violation of order of this court - Recovery of demand raised on account of the issue which is now pending with the Adjudicating Authority in pursuance of the remand order passed by the Tribunal - HELD THAT:- The attachment of the bank account clearly violates the interim order granted by the Hon'ble Division Bench of this Court, therefore, the respondent are directed to raise the attachment forthwith.
The learned senior standing counsel appearing for the respondent/ Revenue shall report the raising of the attachment on the next date of hearing - Post the matter on 29.04.2021.
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2021 (4) TMI 1359
Appointment of Special Officer - petition for oppression and mismanagement has been pending since 2016 - compliance with the mandate of Section 422 of the Companies Act 2013 - alternative submission is the shareholding is held within the members of a family and is closely held, it would be appropriate if mediation is resorted to so that any one or more of the groups of shareholders can buy out the shareholding of others.
HELD THAT:- The appellants are permitted to move the NCLT for expeditious hearing having regard to the mandate of Section 422. Any offer which the appellants have for an amicable solution through a mediatory process can be urged before the NCLT when the proceedings are taken up - no observations or findings made thereon and it is left open to the NCLT to take an appropriate view.
Appeal dismissed.
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2021 (4) TMI 1358
Rejection of recall of order - Application filed under Section 7 of IBC withdrawn by the Appellant - Adjudicating Authority had ignored CoC formed after settlement was informed to IRP - HELD THAT:- It is difficult to take a different view from the Adjudicating Authority. There is difference between withdrawal simplicitor making statement that parties have settled. It is different when bringing the settlement on record, and making it a part of the Order of withdrawal liberty is taken and brought on record to restore the proceedings in case of default. IBC is not a recovery proceeding where because the money or part of it has not come, the party may repeatedly come to the Court. Adjudicating Authority has rightly observed that no liberty to revive was there and so declined to interfere. The Appellant would be at liberty to pursue other remedies in law.
There are no substance in the Appeal to entertain the Appeal - The Appeal is dismissed.
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