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2022 (7) TMI 1494 - ITAT COCHIN
Late filing fee u/s 234E - late filing of TDS return - AR submitted that the assessee is maintaining cash system of accounting and due to some technical mistake TDS return was filed in Form 24Q2 on 20.10.2017 later on the mistake was rectified through filing of revised quarterly TDS return and filed the return in Form 26Q which was within the due date, therefore the levy of fee u/s 234E does not arise - HELD THAT:- We observe that the assessee filed quarterly TDS return in Form Q24 which has been processed By the CPC on 30.06.2018 and raised demand towards interest of late payment of Rs.567/- and late filing fee under Section 234E of Rs.47,000/-. During the course of hearing the learned A.R. submitted acknowledgement of quarterly statement which is a computer generated Form 24Q and it was filed on 20.10.2017.
From the orders of the lower authorities it is clear that the assessee has filed Form 24Q on 20.10.2017 and it was got revised later on but the lower authorities had not considered the original quarterly TDS return filed in Form 24Q and it has been considered from the date of revised return and imposed interest and late fee for delayed filing and payment.
Assessee was unable to produce before us the other particulars regarding filing of Form 20Q & 24Q and what was the data contained in Form 24Q and 26Q. He only submitted that the assessee is maintaining cash system of accounting. Therefore we think it fit to remit the matter to the AO for verification of the exact nature of the payment and which form is applicable, i.e. 24Q or 26Q in the case of the assessee.
Appeal filed by the assessee is allowed for statistical purposes.
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2022 (7) TMI 1493 - MADRAS HIGH COURT
Filing of sale certificates in Book No. 1 as per Section 89(2) or 89(4) of the Registration Act, 1908 - sale certificates were not issued by the Revenue officer, yet, a direction for filing a copy in Book No. 1 has been given - HELD THAT:- Section 89 of the Act of 1908 provides for sending copies of certain orders, certificates and instruments to the registering officers. The purpose of Section 89 of the Act of 1908 is different than as understood by the appellants. It is not for registration of document requiring stamp duty and keeping a copy of the sale certificate on the file of Book No. 1. The document therein is not presented by the purchaser, but sent by the court or the Revenue Officer.
The judgment in N. NARESH KUMAR VERSUS THE INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, CHENNAI AND THE SUB REGISTRAR, SUB REGISTRAR OFFICE, TRICHY [2018 (8) TMI 2140 - MADRAS HIGH COURT], makes it clear that it does not amount to registration, rather if the document is to be used for sale or any other purpose, stamp duty is to be paid for registration of the document at that stage. Section 17(2)(xii) of the Act of 1908 excluded document from compulsory registration if the certificate of sale is granted to the purchaser by the Civil or Revenue Officer.
In the case of B. ARVIND KUMAR VERSUS GOVERNMENT OF INDIA AND ORS. [2007 (5) TMI 657 - SUPREME COURT], the Apex Court thus gave a reference of Section 17(2)(xii) of the Act of 1908 to indicate that a sale certificate does not require compulsory registration and for that no separate deed is to be executed.
The writ petitions were filed when the sale certificate sent to the registering officer was not filed in Book No. 1 on the ground that stamp duty has not been paid. The appellants have failed to understand the import of Sections 17(2)(xii) and 89 of the Act of 1908, which does not require registration of sale certificate, but for filing a copy in Book No. 1. At this stage, it is necessary to clarify that the court granting certificate of sale would fall under Section 89(2) of the Act of 1908, while if it is granted by the Revenue officer, it would be under Section 89(4) of the Act of 1908 and the case on hand would fall under Section 89(2) and not under Section 89(4) of the Act of 1908.
The action of the appellants to demand stamp duty to keep a copy of the sale certificate on the file of Book No. 1 is going against the statutory mandate and the law enunciated by the Apex Court and this Court.
The writ appellants have even ignored Section 17(2)(xii) which excludes sale certificate from compulsory registration if granted by the Civil or Revenue officer. In a case where certificate is granted by the Civil officer apart from Revenue Officer, registration would not be compulsory, thus till it is not presented for registration, the question of stamp duty would not arise. It would be true that as per Section 35 of the Indian Stamp Act, 1899 such document would not be admissible in evidence.
There are no merit in the writ appeals and are dismissed.
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2022 (7) TMI 1492 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Dismissal of application filed under Section 7 of IBC - guarantee given to the Financial Creditor or not - whether only the securities were pledged by the Pledge Agreement dated 27.02.2015? - HELD THAT:- It is apparent from the facts of the case that when it was decided by the Financial Creditor to extend loan to the Borrower a Facility Agreement was executed in which security package was given as contained in the terms and conditions. The only personal guarantee in the Facility Agreement is that of Manoj Kumar Agarwal and none else but it appears that this security was not found sufficient by the Financial Creditor, therefore, on the same date an Unattested Pledge Agreement was also executed in which the present Respondent i.e. Mahananda Suppliers Limited and Sungrowth Share and Stocks Limited came forward to support the Borrower i.e. Adhunik Meghalaya Steels Private Limited and all of them pledged their security which has been mentioned in the Schedule appended with the Agreement and made themselves liable to pay the dues of the Financial Creditor jointly and severally, meaning thereby giving an option to the Financial Creditor to initiate action against the security of any of the pledgor but in no case the pledgor can be termed as a principal debtor for the purpose of recovery of the entire amount that too by resorting to the filing of the application under Section 7 of the Code.
There are no error in the findings recorded by the Adjudicating Authority - the present appeal is totally without any merit and deserves to be dismissed - appeal dismissed.
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2022 (7) TMI 1491 - GUJARAT HIGH COURT
Dishonour of Cheque - failure to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act - HELD THAT:- It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, the accused has succeeded in rebutting the presumption, showing preponderance of probability and hence, onus shifts upon the complainant to prove otherwise, however, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt as there is nothing on record to show that the land belonged to the complainant and that, he had 30% share in the said land - On re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned Sessions Judge has meticulously considered the evidence and came to such a conclusion and in the considered opinion of this Court, the learned Sessions Judge has rightly come to such a conclusion, which does not call for any interference at the hands of this Court.
In the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned Sessions Judge do not call for any interference - Appeal dismissed.
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2022 (7) TMI 1490 - ITAT KOLKATA
Addition u/s 56(2)(viib) - share premium in excess of Fair Market Value - FMV determination - Valuation of shares - issuance of equity shares to its non-resident angel investors was by way of conversion of CCDS into equity shares - valuation of equity shares which ultimately leads to the quantification of the addition to be made u/s 56(2)(viib) in the hands of the assessee in the form of excess of aggregate consideration over and above the fair market value of the equity shares - HELD THAT:- Owing to the observations made by the ld. CIT(A) on the non-submission of MIS data and other details relevant to the valuation report placed on record, the above conclusions drawn in the case of Innoviti Payment Solutions Pvt. Ltd. [2019 (1) TMI 688 - ITAT BANGALORE] apply mutatis mutandis and we direct, both, the assessee and the ld. AO to comply with the same, for which in the conspectus of factual matrix, applicable law deliberated above, we remit the issue of valuation of shares to the file of ld. AO for the limited purpose of verification in terms of conclusions noted above so as to arrive at satisfaction on the scientific basis of valuation and rationality of assumptions adopted to build hypothesis on the valuation of shares. The assessee is also directed to make available the MIS data and all the other details of various assumptions adopted to arrive at the given valuation of equity shares issued by it. Ld. AO is also directed to analyze the data and projections which have undergone in arriving at the FMV on the basis of DCF method opted by the assessee and to come to a conclusion accordingly in terms of the applicable law.
Before parting on this issue, we make it clear that we have not expressed any of our views on the correctness and completeness of the valuation report submitted by the assessee by adopting DCF method under Rule 11UA(2)(b) of the Rules so as not to impair or injure the verification process before the ld. AO. The observations made herein by us in remitting the matter back to the file of the ld. AO will also not impair or injure the case of the assessee and not cause any prejudice to the defence/explanations of the revenue. Accordingly, these two grounds are allowed for statistical purposes.
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2022 (7) TMI 1489 - ITAT SURAT
Rejection of application u/s 154 as alleged Long Term Capital Gain on sale of agricultural land made by the Appellant - assessee has shown LTCG on sale of agricultural land. The said agricultural land is situated outside the Municipal limit having population of less than 10,000 - as argued section 237 which prescribed that if a person satisfies AO that the amount of tax paid by him or his on behalf for treated by him or on his behalf for any assessment year, exceeding the amount which he is properly chargeable under the Act for that year, he shall be entitled to a refund of excess - HELD THAT:- We are in full agreement with the submission of Ld. AR for the assessee that as per mandate of Section 237 if the amount of tax on behalf of assessee is paid in excess of the amount, he is properly chargeable; the assessee is entitled for refund of it.
Further, Article-265 of the Constitution of India also mandates that no tax can be levied or collected without authority of law. In the case in hand, we find a peculiar situation, wherein the assessee himself offered and paid the impugned tax, however on realizing his mistake, the assessee immediately filed an application for rectification u/s 154 of seeking refund of tax paid. Therefore, considering the peculiar facts of the case and various submissions of assessee and the ratio of various decisions, we treat the rectification application filed under section 154 of assessee as additional claim of the assessee and admit the same for consideration.
Our view is also strengthen by the decisions Hon'ble Supreme Court in Goetez (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] while discussing the scope of power of Tribunal under section 254 clarify though the assessing officer is not empower to entertain new claim without the assessee revising the return of income, however, this restriction is not impinge on the power of Tribunal under section 254.
Further in the case of CIT vs Mitesh Impex [2014 (4) TMI 484 - GUJARAT HIGH COURT], Pruthvi Broker & Shareholders Pvt. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT],CIT Vs Sam Global Securities Ltd. [2013 (9) TMI 876 - DELHI HIGH COURT] wherein it was held that Ld. CIT(A) as well as Tribunal have jurisdiction to consider additional claim. It was also held that such claims need not be those which became available on account of change of circumstances of law but which were even available when return of income was filed. (emphasis added by us).
As we have admitted such claim, thus, the issue is restore back to the file of assessing officer to adjudicate the same in accordance with law. The Assessing Officer to examine the fact that whether the LTCG earned on sale of such agricultural land, is exempt or not as the assessee claimed that the agriculture land sold by the assessee does not fall within the definition of asset as define section 2(14) of the Act.
Appeal of the assessee is allowed for statistical purposes.
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2022 (7) TMI 1488 - ALLAHABAD HIGH COURT
Maintainability of petition - Tribunal has yet not been constituted - HELD THAT:- Matter requires consideration.
All respondents may file counter affidavit within a period of six weeks. Petitioner shall have two weeks thereafter to file rejoinder affidavit - List thereafter.
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2022 (7) TMI 1487 - SUPREME COURT
Principles of natural justice - entire criminal proceedings including the charge-sheet and the summoning order quashed by High Court - High Court has not properly appreciated and/or considered the larger conspiracy while quashing - mini trial can be conducted by the High Court in exercise of powers Under Section 482 Code of Criminal Procedure or not? - HELD THAT:- At the outset, it is required to be noted that the High Court has delivered the impugned judgment and order after a period of six months after the matter was reserved for judgment. Though the judgment and order passed by the High Court may not be set aside on the aforesaid ground only, however it is always advisable that the High Court delivers the judgment at the earliest after the arguments are concluded and the judgment is reserved. While emphasizing the need to pronounce the reserved judgment at the earliest and within a reasonable time this Court in the case of ANIL RAI VERSUS STATE OF BIHAR [2001 (8) TMI 1330 - SUPREME COURT] has observed and held It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come up to the expectation of the society of ensuring speedy, untainted and unpolluted justice.
Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers Under Section 482 Code of Criminal Procedure, it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application Under Section 482 Code of Criminal Procedure. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers Under Section 482 Code of Criminal Procedure jurisdiction and at the stage of deciding the application Under Section 482 Code of Criminal Procedure, the High Court cannot get into appreciation of evidence of the particular case being considered.
The impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers Under Section 482 Code of Criminal Procedure.
The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos. 260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the Rules and Regulations of the Excise Department and Excise Law - The High Court has quashed the criminal proceedings by observing that there was no loss to the Excise Department. However, the High Court has not at all appreciated the allegations of the larger conspiracy. The FIR need not be an encyclopedia.
The impugned judgment and order passed by the High Court is hereby quashed and set aside - appeal allowed.
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2022 (7) TMI 1486 - SUPREME COURT
Change of Surname of minor child after death of biological father - Appointment of Guardians to the Minor Child - grant of visiting rights of the minor child pending disposal of O.P.
Whether the mother, who is the only natural/legal guardian of the child after the death of the biological father can decide the surname of the child. Can she give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband? - HELD THAT:- While an adoption deed is not necessary to effect adoption and the same can be done even through established customs, in the present case the Appellant submits that on 12th July, 2019, during the pendency of the present petition, the husband of the Appellant/ step father of the child adopted the child by way of Registered adoption deed - While the main object of adoption in the past has been to secure the performance of one’s funeral rights and to preserve the continuance of one’s lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family. Therefore, in light of the above observations, the first issue is settled in favour of the appellant.
Whether the High Court has the power to direct the Appellant to change the surname of the child specially when such relief was never sought by the respondents in their petition before the trial Court? - HELD THAT:- While this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/ son of respondents. It is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.
In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors. [2009 (11) TMI 942 - SUPREME COURT] held Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.
In this case while directing for change of surname of the child, the High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground.
The appeals stand allowed in part.
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2022 (7) TMI 1485 - ITAT MUMBAI
Reassessment order passed in the name of non existing company - assessee company having been dissolved - HELD THAT:- We note the fact that company has already been dissolved and is not in existence since 18th March, 2011. The copy of the registrar of companies certificate was also submitted before the learned Assessing Officer vide letter dated 15th December, 2015. Despite this, the notice u/s 27th March, 2015 culminated into the assessment order passed in case of a non existing company i.e. ‘Silver Line Trading Pvt. Limited’.
The issue has already been decided in assessee’s own case 2018 (2) TMI 1936 - ITAT MUMBAI] by the ITAT which was followed by the learned CIT (A). This issue is also covered by the decision of the Hon'ble Supreme Court in case of PCIT vs. Maruti Suzuki India Ltd.[2019 (7) TMI 1449 - SUPREME COURT]. In view of this, we do not find any infirmity in the order of the learned CIT (A) in quashing re–assessment order passed in the name of non existing company. Decided in favour of assessee.
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2022 (7) TMI 1484 - ITAT MUMBAI
TP Adjustment - specified domestic transactions entered into by the assessee - HELD THAT:- As relying on MAHINDRA TWO WHEELERS LTD [2022 (8) TMI 482 - ITAT MUMBAI] the transfer pricing adjustment made by the AO is not sustainable - AO is directed to examine the allowability of expenditure in terms of provisions of section 40A(2).
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2022 (7) TMI 1483 - ITAT RAIPUR
Categorization of income Surrendered during survey - assessable as business income OR undisclosed income - huge difference of stock and excess cash found at the business premises - HELD THAT:- As excess stock was found in the business premises of the assessee on physical verification by the survey team with the help of employees of the assessee. Assessee, without objecting to the figures of excess stock arrived at by survey team accepted the same and offered the same as undisclosed income for the current year. In this context, we are of the considered view that since the excess stock of rice and paddy are the commodities in which the assessee was dealing under his regular business and accordingly any surrender on account of mismatch in physical stock and accounting balance of the stock can not be treated as income from the other source, the same has to be brought to tax under income from business, which the assessee has rightly done. See BAJARGAN TRADERS C/O. KALANI & CO. [2017 (11) TMI 388 - RAJASTHAN HIGH COURT]
Thus we are of the opinion that the investment in the excess stock ought to be taxed under the head “business income” and not under the head “income from other sources”. Accordingly, we set aside the orders of the authorities below and direct the AO to delete the addition. Assessee appeal allowed.
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2022 (7) TMI 1482 - ITAT MUMBAI
Validity of Assessment u/s 153A - Deemed dividend u/s. 2(22)(e) - whether incriminating documents found during the course of search? - HELD THAT:- Assessing Officer has issued the notice u/s. 153A of the Act without indicating any details on the incriminating material found during search and we observe that the assessee has raised this jurisdictional issue before us that Assessing Officer has issued improper notice u/s. 153A of the Act to initiate proceedings in unabated assessment year under consideration. In the similar situation the Coordinate Bench of this Tribunal has decided the similar issue relying on the decision of Underwater Services Co. Ltd. v. ACIT & others [2021 (10) TMI 1158 - BOMBAY HIGH COURT] AND in the case of D Décor Exports Pvt. Ltd., v. DCIT [2022 (4) TMI 1180 - ITAT MUMBAI] issuance of notice is the preliminary step which enables the assessee to effectively deal with the case made out by the revenue.
Further, the section 153A provides that an assessment has to be made under the said section only on the basis of seized material u/s 132 or 132A, in the absence of such details in the notice issued under the said section, the assessee is not in a position to appreciate which return of income should be filed in response to the notice issued u/s 153A, whether the original return of income filed or revised return of income.
Thus we are inclined to accept the submissions of the Ld. AR that notice issued u/s. 153A is bad in law and assessment made by issue of improper notice is also bad in law. Assessment made u/s. 143(3) r.w.s. 153A of the Act is bad in law - No merit of additions made by the Assessing Officer u/s. 2(22)(e) - Decided in favour of assessee.
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2022 (7) TMI 1481 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Seeking to set aside the order which states to initiate the suspension of the operation of windmills till further order - direction also sought to allow the corporate debtor to run the windmills - also seeking directions to Respondent No. 1 to direct BESCOM to continue releasing 90% of the power sale revenue to the customers of the corporate debtor and continue retaining 10% thereof.
HELD THAT:- Since no one appeared on behalf of the Respondents in this proceedings despite service of notice, it is not known that Respondent No. 1's stands on the proposal dated 09.01.2020 submitted by the Corporate Debtor for renewal of the lease - it is considered proper to direct the Respondents to allow the Corporate Debtor to run the windmills as per the Respondents own order dated 23.07.2020 on the same conditions as mentioned therein - thus, to keep windmills working is essential part in relation to resolve insolvency of the Corporate Debtor.
Application allowed.
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2022 (7) TMI 1480 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Validity of Resolution plan - Fraudulent misrepresentation or not - Whether the Resolution Professional made any misrepresentation or fraudulent misrepresentation, while issuing Information Memorandum, inviting expression of interest to submit resolution plan? If not, whether the order passed by the Adjudicating Authority refusing to recall the order passed in I.A. No. 224 of 2018 dated 27.02.2019 be sustained? - HELD THAT:- Based on the Information Memorandum, the amount due to the financial creditors is arrived at, therefore, the contention of the Appellants that they submitted resolution plan based on the details as to production capacity of the industry is without any substance.
In the instant case, representation was made by the Resolution Professional in Information Memorandum inviting expression of interest. To constitute fraudulent misrepresentation, there must be material on record that CIRP has not exercised due diligence as a reasonable man and intentionally made such misrepresentation. But, no such material is place that misrepresentation was made intentionally, consequently failed to establish none of the ingredients to constitute misrepresentation or fraudulent misrepresentation - In the present facts of the case, there is absolutely no allegation that the Resolution Professional made any representation with fraudulent intention or with an intent to deceive the resolution applicants i.e. appellants herein. In the absence of such allegation and proof of it, by producing prima facie material, it is difficult for this Court to accept the contention of the Appellants, that the appellants have submitted the resolution plan based on such fraudulent misrepresentation made by Resolution Professional.
Viewed from any angle, the Resolution Professional prima facie did make no misrepresentation or false representation, much less, fraudulent misrepresentation as alleged by the Appellants.
In any view of the matter, based on fact situation, more particularly about the calculation of production capacity by specific formula extracted above and for the failure of these appellants to inspect the premises before making expression of interest for submitting resolution plan indicates that the appellants are not diligent in submitting the resolution plan.
The word 'relevant information' is required under Section 29 to formulate its resolution plan. When once the Resolution Professional disclosed relevant material in Information Memorandum based on MITCON Report which is equivalent to the information collected by GITCO, which the Appellants relied on is sufficient to conclude that the Resolution Professional did make no misrepresentation or fraudulent misrepresentation, therefore, when the appellants failed to make necessary investigation in the matter and proceeded to submit its resolution plan, this the act of the Resolution Professional cannot be held to be the fraudulent misrepresentation.
There are no ground to interfere with the order passed by the Adjudicating Authority - appeal dismissed.
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2022 (7) TMI 1479 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - Construction Services supplied by the Respondent - fraud and forgery on the part of the Respondent - fault in calculations of the profiteered amount, saleable area and the total turnover of the Respondent by the DGAP - time limitation - HELD THAT:- This Authority finds that, the narrated submissions of the Applicant No. 1 require due scrutiny and consideration. Therefore, without going into the merits and the other submissions made by the Respondent and the Applicant Nos. 1 & 2 at this stage, the Authority finds that this case needs to be reinvestigated by the DGAP based on the above observations of this Authority. Thus the Authority directs the DGAP to reinvestigate the matter as per the provisions of rule 133(4) of the CGST Rules 2017.
The DGAP shall and must determine the authenticity and correctness of the data/information and records upon which its Report is based and after determining the authenticity of such information/data & records reinvestigate and redetermine the profiteered amount, if any, for the Project and for each eligible recipient of supply in the said Project based upon such authentic and correct data, information and records.
The Hon'ble Supreme Court in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER], while taking suo motu cognizance of the situation arising on account of Covid-19 pandemic, has extended the period of limitation prescribed under the general law of limitation or any other special laws (both Central and State) including those prescribed under rule 133(1) of the CGST Rules, 2017 - Accordingly this Order having been passed today falls within the limitation prescribed under rule 133(1) of the CGST Rules, 2017.
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2022 (7) TMI 1478 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Fraudulent GDR issue - Vintage was the sole subscriber was not intimated to the stock exchange and to the Indian investors and, accordingly, the Company and its Directors were charged with violation of Section 12A of the SEBI Act and Regulations 3 and 4 of the PFUTP Regulations - Penalty imposed on directors - HELD THAT:- We are of the opinion that since the loan has been repaid and the GDR proceeds have been utilized in accordance with the objects of the GDR the finding that a fraud was committed by the Company is patently erroneous.
We are of the opinion that when the proceeds have come into the Company and have been utilized by the subsidiary and have been ulitized for the purpose of which the GDR was issued the debarment of the Non-Executive Director for five years and penalty of Rs. 10 lakhs only on the basis that they were signatories to the resolution of the Board of Directors dated 31st March, 2008 appears to be excessive as well as unjustified. Other than this there is no evidence that they were part and parcel in the issuance of the GDR.
A categorical statement has been made by these Directors that they were not involved in the day to day affairs of the Company. In the absence of any finding, merely because they were signatories to the resolution these Non-Executive Directors cannot be held to be part of the fraudulent scheme. The imposition of penalty and the debarment cannot be sustained.
A penalty of Rs. 20 lakhs has been imposed upon the Directors of the Company. We find that in similar circumstances in the case of Visu International Ltd. a penalty of Rs. 10 lakhs was imposed upon the Directors and in Govind Das Pasari a penalty of Rs. 15 lakhs was imposed - penalty of Rs. 20 lakhs is excessive. Considering the fact that they have already undergone debarment for more than three years we think it fit and proper if the penalty is reduced to Rs. 10 lakhs each to be paid by the Directors.
Consequently, while affirming the order of the WTM and AO of the aforesaid violations committed by the Company we reduce the debarment period of the Company and the Managing Director, Director and Independent Director from five years to the period undergone. In so far as the penalty imposed by the AO is concerned, the penalty against the Company is reduced to Rs. 25 lakhs. The penalty against the Managing Director and Director is reduced to Rs. 10 lakhs. The penalty imposed against the Independent Director is quashed. The appeals are partly allowed.
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2022 (7) TMI 1477 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - Global Depository Receipts issued to sole subscriber - WTM as debarred from accessing the securities market for a period of five years and imposed a penalty of Rs. 5 lakhs for violation of the provisions of Section 12A(a), (b), (c) of SEBI Act r.w.r. 3(a), (b), (c), (d) and 4(1) of the SEBI (‘PFUTP Regulations’) - HELD THAT:- Merely by participating as an Independent Director in the resolution of the Board of Directors on 16th March, 2010 does not make the appellant a part of the fraudulent scheme and arrangement of the Company with regard to the issuance of the GDR.
Resolution only directs opening of a bank account with EURAM Bank account for the purpose of receiving subscription money in respect of GDR and authorises the Managing Director to sign such documents as required. By being part of such resolution does not make the appellant part of a fraudulent scheme in as much the resolution of 16th March, 2010 does not by itself makes it a fraudulent resolution.
It is the subsequent acts of the Company and its Managing Directors by issuing a pledge agreement for the purpose of providing guarantee to Vintage so that it could secure a loan for the purpose of subscribing to the GDR issue makes it fraudulent. However, there is no evidence to indicate that the appellant was party to the execution of the pledge agreement nor there is anything on record to indicate that he was aware of the loan agreement or the pledge agreement.
A specific assertion was made by the appellant that he was not part of the day to day affairs and management of the Company. This fact has not been disputed by the respondent. Therefore, unless and until there is further evidence to indicate that the appellant had participated in the issuance of GDR and/or knew about the fraudulent scheme, in our opinion, the restraint order passed by the WTM and the penalty imposed by the AO on the ground that the appellant was part of the fraudulent scheme cannot be sustained.
In view of the aforesaid, the impugned orders passed by the WTM and AO cannot be sustained and are quashed. Both the appeals are allowed.
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2022 (7) TMI 1476 - ITAT HYDERABAD
Disallowance of bad debts in respect of six Government undertakings - As submitted that the assessee was incapacity on account of the fact that the assessee was a non function company and the record of the assessee companies are not available at that time, therefore the requisite details were not filled before the lower authority - HELD THAT:- These six companies happens to government companies and dues pertains to supply of electricity to these companies, we deem it appropriate to remand back the matter to the file of the AO with the direction to pass a fresh assessment order, after affording opportunity giving to the assessee. Needless to say that the assessee shall produce all the documents in support of the claim at the first hearing and shall not take any undue adjournment in the matter.
Disallowance u/s 14A - disallowances, was confirmed by the CIT(A) by applying the formula given in Rule 8D(iii) r.w.s 14A @0.5% of the average value of investment in respect for which is exempt from the tax - HELD THAT:- Recently, in the case of Williamson Financial Services Ltd. [2022 (7) TMI 451 - ITAT GAUHATI] had the occasion to examine the above said provision and also the aspect whether the recent amendment in section 14A was clarificatory in nature and hence, have a retrospective applicability. After examining the details, the co-ordinate Bench had came to the conclusion that the amendment to section 14A was clarificatory in nature and therefore, it is required to be applied retrospectively even to the pending appeals before the Tribunal.
The amendment in section 14A is retrospective, hence matter is restored back to the file of Assessing Officer with a view to re-examine the issue in the light of newly amended Section 14A read with applicable rules and decide accordingly.
Appeal of the assessee is allowed for statistical purposes.
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2022 (7) TMI 1475 - ITAT VISAKHAPATNAM
Deemed dividend U/s. 2(22)(e) - assessee being a 25% share holder in loan granter company - HELD THATA:- The accumulated profits to the extent available in the books of account shall be considered for the purpose of determining the deemed dividend U/s. 2(22)(e) of the Act.
The reliance placed by the Ld. AR in the case of Promod Kumar Dang [2005 (11) TMI 193 - ITAT DELHI-A] has been rightly distinguished by the Ld. CIT(A) and cannot be applied to the instant case. However, we also find that the assessee has included the undisclosed income in its books of account resulting an increase in the accumulated profits of the company. The Ld. CIT(A) has rightly computed the accumulated profits for the purpose of section 2(22)(e) of the Act subject to verification of certain tax challans of the CIT(A)'s order. We also note that the Ld. AO has rightly considered the directions of the Ld. CIT(A) and passed the consequential order revising the order passed U/s. 143(3) r.w.s 254 of the Act.
Reopening u/s. 148 - As we find from the record that the Ld. AO has rightly given the reasons for such reopening and reopening is well within the period as prescribed under the Act. Therefore, this ground raised by the assessee is dismissed.
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