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Showing 201 to 220 of 1320 Records
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2021 (1) TMI 1122 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Approval of scheme of Amalgamation - seeking dispensation of meetings of shareholders and creditors of Rangoli Creation Private Limited (Transferor Company) with Rangoli Sarees (Transferee Company) Limited - HELD THAT:- Necessary directions issued regarding issuance of various notices - application disposed off.
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2021 (1) TMI 1121 - SUPREME COURT
Doctrine of separability of an arbitration agreement from the underlying substantive contract in which it is embedded - validity of arbitration agreement if the underlying contract was not stamped as per the relevant Stamp Act - fraudulent invocation of the bank guarantee furnished under the substantive contract - arbitral dispute or not.
HELD THAT:- It is deemed appropriate to refer the following issue, to be authoritatively settled by a Constitution bench of five judges of this Court:
Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty Under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument?
The Registry may place this matter before the Hon'ble Chief Justice of India for appropriate orders/directions.
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2021 (1) TMI 1120 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - account of Corporate Debtor was classified as NPA - whether appeal was barred by limitation as default occurred in the year 2013? - HELD THAT:- The account of Corporate Debtor was classified as NPA on 17thJune, 2013. The Corporate Insolvency Resolution Process (CIRP) was triggered by the Financial Creditor by filing application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I&B Code) on 1st April, 2019. It is by now well settled by a catena of judicial pronouncements from the Hon’ble Apex Court as also by this Appellate Tribunal that the application under Section 7 is governed by Article 137 of the Limitation Act providing for limitation period of three years which has to be reckoned from the date of default viz. the date on which the Account of Corporate Debtor was classified as NPA.
The impugned order admitting application under Section 7 filed by Respondent No.1- (Financial Creditor) in terms of the impugned order dated 4th February, 2020 cannot be sustained - Appeal allowed.
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2021 (1) TMI 1119 - ITAT HYDERABAD
Depreciation u/s 32(1)(ii) in respect of its “right to collect toll” - whether or not the assessee’s claim for depreciation on “license to collect toll”, an intangible asset, falls within the scope of Sec.32(1)(ii) ? - assessee’s stand qua its claim is that it has been holding the concessionare rights in the nature of license to collect road toll of an intangible asset u/s 32(1) - HELD THAT:- We are of the considered view that the issue as to whether an Infrastructure Development company that had constructed a road on build, operate and transfer (BOT) basis on the land owned by the Central Government would be eligible for claim of depreciation in respect of its intangible rights i.e “right to collect toll” under Sec. 32(1)(ii) - See Progressive Construction Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD]
There does not appear to be any dispute about the fact that the Assessing Officer’s assessment order; take for instance, the order dated 30th December, 2017 has not controverted the assessee’s plea that Clause 3.1 of the concession agreement has resulted in the NHAI granting concessionary rights to reconstruct, operate and maintain the corresponding national highway project. We wish to repeat here that the Assessing Officer has only quoted the Board’s Circular No.9/2014 dated 23rd April, 2014 in favour of amortization by following matching concept only. We observe in these factual backdrop that Revenue’s arguments supporting the impugned disallowance are not sustainable.We make it clear that assessee’s stand qua its claim is that it has been holding the concessionare rights in the nature of license to collect road toll of an intangible asset u/s 32(1)
Coming to the exclusive usage part; we see no material on record which would indicate that anybody other than the assessee is entitled to dilute its rights to construct, operate, maintain the project in lieu of the toll collections right for the specified agreement period. We therefore hold that the assessee’s right to collect toll would form an exclusive right in the nature of license eligible to be treated as an intangible asset as per Special Bench’s decision (supra).We thus decline the Revenue’s arguments supporting the impugned depreciation disallowance - Decided in favour of assessee.
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2021 (1) TMI 1118 - MADRAS HIGH COURT
Registration of sale certificate - petitioner Bank submitted that the provisions under the SARFAESI Act will have primacy over the proceedings in an Arbitration Tribunal - HELD THAT:- Division Bench of this Court, in which Hon'ble Mr.Justice M.M.SUNDRESH is a party, in M/S. AACHI MASALA FOODS PVT. LTD. VERSUS M/S. EDELWISS ASSETS RECONSTRUCTION CO. LTD., M/S. JAI BHAVANI STEELS ENTERPRISES PVT. LTD., THE TAX RECOVERY OFFICER INCOME TAX DEPARTMENT, GOVT. OF INDIA, THE ASSISTANT COMMISSIONER COMMERCIAL TAX DEPARTMENT, THE ASSISTANT COMMISSIONER OF CUSTOMS BONDS, THE SUB-REGISTRAR [2020 (10) TMI 150 - MADRAS HIGH COURT] was pleased to hold that the proceedings under the SARFAESI Act would have primacy, especially in a case where the mortgage in favour of the Bank was earlier.
In the case on hand also, the registered mortgage was admittedly prior. The 9th respondent in W.P.(MD)No.6976 of 2020 / 8th respondent in W.P.(MD)No. 1101 of 2021 sought for an attachment in an arbitration proceedings, in which, the petitioners Bank was obviously not a party, as the transaction has got nothing to do with it. The said order was also subsequent to the mortgage created in favour of the petitioner. Now, a third party right has also been created through the sale certificate issued in favour of the auction purchasers. If the 1st respondent raise a contention that in view of the recording of the attachment order by it already, the subsequent sale deed cannot be registered, then the very act of recording the said interim order of attachment passed by the Tribunal itself ought not to have been done, as there was a subsisting mortgage on that date.
The petitioner Bank cannot be denied the relief as sought for - Petition allowed.
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2021 (1) TMI 1117 - ITAT HYDERABAD
Correct head of income - Rental receipts - assessable as ‘Income from house property’ OR ‘business income’ - HELD THAT:- As the assessee has itself declared the very kind of receipt derived in the subsequent assessment years under the head ‘business income’ only and therefore, it does not dispute the lower authorities action under challenge which has been the subject matter above extracted twin grounds. And more so, in view of hon’ble apex court’s decision in Chennai Properties & Investment Ltd. [2015 (5) TMI 46 - SUPREME COURT] and tribunal’s decision in assessee’s own case for A.Y. 2010-11 dated 11.7.2016. We decline the assessee’s above two substantive grounds in foregoing terms therefore.
Admission of assessee’s additional ground - HELD THAT:- We are of the opinion that the tribunal’s jurisdiction continues right from filing of the appeal till final disposal u/s 254 of the Act. Their lordships landmark judgement in NTPC [1996 (12) TMI 7 - SUPREME COURT] has clarified that this second appellate jurisdiction has to be taken in widest than in a narrower sense. We make it clear the hon’ble jurisdictional high court’s decision (supra); even if taken as directly dealing with the issue, came much prior in time. We thus go by the judicial hierarchy to decline the Revenue’s objections regarding admission of asssessee’s additional ground. We also quote this tribunal’s decision All Cargo Global Logistics Ltd. Vs. DCIIT [2012 (5) TMI 466 - ITAT MUMBAI] that we can very well entertain and admit an additional ground to determine the correct tax liability of an assessee provided the relevant facts are already on record.
Higher and secondary education cess paid - eligible deduction u/s 37 r.w.s. 40(a)(ii) while computing income under the head ‘profits and gains of business /profession’ - HELD THAT:- We hold that the asssessee’s paper book running clearly demonstrate that it had itself added back the education cess amount suo moto. Its further argument that we have to go by hon’ble apex court’s decisions dealing with central excise law also does not find favour with us in view of hon’ble Bombay high court’s decision in Sesa Goa Ltd.[2020 (3) TMI 347 - BOMBAY HIGH COURT] specifically dealing with this plea onwards thereby concluding that “a cess under the provisions of the Act is not to be taken as “tax” for the purpose of s.40(a)(ii) disallowance”. Therefore we accept assessee’s claim seeking to allow education cess and direct the Assessing Officer to finalise the consequential computation as per law. The assessee’s instant additional substantive ground is allowed.
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2021 (1) TMI 1116 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking grant of status quo order or any interim directions in the Application for consideration before this Tribunal - HELD THAT:- The Application in simpliciter is an Application seeking early hearing of the main Company Petition. The Applicants / Petitioners seem to have been frustrated by the Covid-19 pandemic as that has put an effective break upon the mediation proceedings undertaken by the Mediator as well as the valuation exercises and aggrieved by it and in the circumstances they seem to have filed this Application - It is also evident from the record of proceedings that at the instance of the Applicants / Petitioners, this Tribunal has evolved a mechanism for sale of the properties giving adequate representations to all the family group concerned, all being closely related to each other vide order dated 16.04.2019, under the instance of the Applicants / Petitioners. Further this Tribunal has also ordered for a change of the independent Observer, appointed by this Tribunal namely one Mr. Sankara Narayanan, Senior Advocate to Mr. 0m Prakash Ellanty, Senior Advocate vide its order dated 12.06.2019.
Taking into consideration the pendency of the Mediation proceedings as well as the overall interests of the parties concerned and that of the 1st Respondent Company, the mediation proceedings should be expedited as it is more than a year since passing of the order dated 03.01.2020 wherein we had given a time frame to complete the mediation proceedings by the Mediators - it is appropriate for the Mediator in case the Mediator is not comfortable with the mediation proceedings being conducted in physical mode, at the least, to conduct the same, virtually.
The Mediator are directed to re-commence the mediation proceedings at the earliest commencing from 1st February 2021 and complete the process of mediation by March 15, 2021 after giving advance notice to the parties concerned - application disposed off.
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2021 (1) TMI 1115 - BOMBAY HIGH COURT
Grant of bail - attachment of London based property - foreign proceeds of crime - siphoning off of funds - criminal conspiracy with Kapil Wadhwan, Promoter Director of M/s.DHFL and others for extending financial assistance to M/s. Dewan Housing Finance Corporation Ltd (DHFL) in lieu of substantial undue benefit to applicant and his family members through companies held by them - HELD THAT:- The proceeds of crime according to complainant involved in this case is ₹ 5050 Crores. It is also revealed that the applicant had siphoned off huge amount out of India through his family/group owned controlled companies. It is found that out of the proceeds of crime of ₹ 600 Crores, ₹ 378 Crores were invested overseas. The investigation in relation to exact foreign proceeds of crime is still under investigation. The applicant and his family members have incorporated or beneficially interest in various companies. The applicant is desperately trying to dispose of his property. He has given online advertisement for sale of his London based property - The said property is attached by ED vide provisional attachment order dated 25th September 2020 being proceeds of crime in terms of Section 2 (1) (u) of PMLA Act. According to complainant if the applicant is released on bail, he will try to sell that property. Further investigation is still in progress.
The offence is of serious nature. There is voluminous evidence showing involvement of the applicant in the crime. In the light of nature of evidence, no case for grant of bail is made out. It is settled law that while granting bail the Court has to keeping in mind the nature of accusations, evidence in support thereof. Huge loss of public fund is required to be viewed seriously. The Special Court under PMLA has analysed the material on record - there are no reason to deviate from the said observation. The applicant being MD/CEO of YES Bank has allegedly misused his position to gain undue financial gain to him and his family members. The applicant and his family earned beneficial. The statement of witnesses shows the modus operandi of the accused.
Investigation revealed that YES Bank extended loans to entities despite incurring losses. These entities extended loan to company owned by family members of applicant. There was no active or operating business in DUVPL. The loan proposal was approved by DHFL on the basis of standard properties furnished as security by DUVPL, a company owned by daughters of applicant. DUVPL has no business activity and not generating revenue. Investigation revealed that money was laundered to buy properties at several places in India and abroad - There are specific allegations against applicant that he has gained financial benefits. The submissions urged by applicant is in the nature of defense. It cannot be disputed that money lying with YES Bank is public Money.
It is settled law that, the Court has to take into consideration nature of accusations, evidence in support, severity of punishment which conviction will entail, reasonable apprehension of witnesses being tampered with larger interest of public/state. It is also settled law that economic loss of public offences involving huge funds to be viewed seriously.
On the basis of evidence on record no case for grant of bail is made out - bail application ejected.
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2021 (1) TMI 1114 - KARNATAKA HIGH COURT
Maintainability of petition - requirement of Non Banking Finance companies (NBFC) to take registration from RBI to conduct business - seeking directions to register the information of alleged cognizable offences committed under the Reserve Bank of India Act - withdrawal made by the petitioner of the PIL filed before this Court - principles of res judicata.
Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court? - HELD THAT:- In pursuance of the directions of the Delhi High Court in INDIA AWAKE FOR TRANSPARENCY VERSUS UNION OF INDIA REPRESENTED BY SECRETARY DEPARTMENT OF FINANCIAL SERVICES MINISTRY OF FINANCE AND ORS [2017 (5) TMI 1757 - DELHI HIGH COURT] has been passed by RBI - the releifs sought for by the petitioner in the PCR is for the RBI to take action against the Respondents 2 to 7 on the basis of the allegation that the Respondents 2 to 7 have violated Section 45-IA of the RBI Act, the RBI having already considered the said request and passed an order according to RBI dated 05.09.2017, the reliefs sought for in the PCR cannot be granted, as such the question of issuance of a certiorari to quash the order dismissing the PCR, restoring the PCR and issuing directions to the RBI to consider the alleged offence would also not arise. The RBI having contended that the letter dated 05.09.2017 is an order, the Petitioner would be at liberty to challenge the same in accordance with law.
The present writ petition is not maintainable in view of the orders passed by the Hon’ble Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court as also the order passed by the RBI dated 05.09.2017.
Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata? - HELD THAT:- The order of the Delhi High Court was only a direction to the RBI to consider the complaints and pass an order. Such a direction not being one on merits cannot be termed to operate as resjudicata. For an order to operate as resjudicata it has to be passed on merits between the same parties - The order of the Hon'ble Delhi High Court would not qualify to be that passed between the same parties since the parties in the present matter are different and as such, the said order would not operate as rejudicata - thus, the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would not amount to rejudicata.
The writ petition filed is an abuse of process of law and of this Court, the same is not maintainable. The grievance of the petitioner has already been addressed by RBI by its order dated 5.09.2017 passed. If at all the petitioner has any grievance as regards the said order, the petitioner is required to take adequate and necessary steps not by filing of proceedings by way of a private complaint before the Magistrate or by way of writ petition before this Court - Petition dismissed.
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2021 (1) TMI 1113 - KARNATAKA HIGH COURT
Maintainability of petition - assets removed from the companies - seeking constitution of Multi disciplinary investigation team to investigate the matter - violation of provisions of SEBI Act - HELD THAT:- In Sarguja Transport Services, [1986 (11) TMI 377 - SUPREME COURT] it is held by the Apex Court that the principle underlying in Rule 1 of Order XXIII. of Code of Civil Procedure should be extended in the interest of administration of justice to the cazes of withdrawal of writ petition also, not on the ground of res judicata but on the ground of 'public policy'. It is further held that while the of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without permission.
A careful perusal of the representations annexed to the PIL and this writ petition show that the grievance of the petitioner; is one and the same so far as violation of provisions of SEB] Act and Regulations are concerned. Admittedly, petitioner bas withdrawn the PIL unconditionally. Therefore, this writ petition cannot be entertained in view of law laid down in Sarguja Transport Service.
Petition dismissed.
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2021 (1) TMI 1112 - KARNATAKA HIGH COURT
Maintainability of petition - Money Laundering - scheduled offences - seeking constitution of multidisciplinary investigation team to investigate and prosecute respondent No. 11 and his associates for the offences alleged to have been committed by them - Direction against the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences - HELD THAT:- In Sakiri Vasu Vs. State of Uttar Pradesh and Others [2007 (12) TMI 485 - SUPREME COURT], the Apex Court has held that when some one has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under Section 482 Cr-P.C., High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy.
Admittedly, petitioner has filed a petition under Section 190(1)(c) read with Section 156(3) of Code of Criminal Procedure before the Special PMLA Court.
This writ petition is not maintainable on the ground of public policy is sustained - petition dismissed.
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2021 (1) TMI 1111 - NATIONAL COMPANY LAW TRIBUNAL, KERALA
Date of removal of disqualification of Director - whether the Corporate Debtor has complied with the conditions stipulated in the settlement agreement produced before this Tribunal? - HELD THAT:- It is true that the IBA has been disposed of on the basis of settlement arrived between the parties stating that they have settled the matter stating that on 26.8.2020 settlement has been arrived for a total sum of ₹ 2,25,00,000/- as full and final settlement of the entire claim between the Corporate Debtor M/s Sree Bhadra Parks and Resorts Limited on the terms mentioned in the settlement agreement. When a settlement has been arrived between the parties, it is duty bound by the Corporate Debtor to make good the payments proposed in that settlement. They cannot go back making various allegations including maintainability of the IBA after making default in the payment agreed to between the parties.
The contention regarding the application is not maintainable as the order stipulates for filing a fresh application cannot be accepted because merely on technicalities the Corporate Debtor cannot wash away their hands from complying with the conditions stipulated in the final order passed by this Tribunal - Application allowed.
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2021 (1) TMI 1110 - KERALA HIGH COURT
Levy of penalty - release of subject goods on payment of redemption fine conforms to the scheme of Sections 2(33), 111(d) and 135 of Customs Act, 1962, section 3 of FTDR Act, 1992 read with notification dated 18.12.2019 and 28.3.2020 issued by Union of India or not? - HELD THAT:- The Customs Act defines what is prohibited goods and effect of importing prohibited goods; consequence of goods imported contrary to Section 111(d) option to pay redemption fine in lieu of confiscation or confiscation. This Court is of the view that the exercise of discretion and jurisdiction either by the adjudicating authority or by the Appellate Tribunal ought not to be moulded by a cast. The jurisdiction under Sections 111 (d) and 125 of Customs Act, 1962 is read with the provisions of FTDR Act, 1992, foreign trade policy and the notifications issued by the Government from time to time - The combined exercise of authority and discretion by Customs Commissioner etc. in these matters, conform to the requirements of judicial discretion. The discretion or power is exercised combining the relevant provision in the Act, notification and facts prevailing on the date of consideration etc. The authorities are guided by the information available to them in a given case.
The consideration of Appellate Tribunal in the case on hand is illegal, ignored relevant notifications, the mandate of FTDR Act and Customs Act 1962. The adjudications of a dispute in these matters is neither on the pedestal of travesty of justice or we have so much discretion for doing proverbial justice to an importer. In matters of this nature, such approach would go contrary to the object sought to be implemented by the authorities, in whom power is conferred particularly in matters of import, export, price etc. In our considered view, the other question whether it is restricted, prohibited the decisions rendered under customs under import and export etc., need not be considered. By juxtaposing the order of Commissioner of Customs and the order under appeal we are fully convinced that the Appellate Tribunal committed serious error in law by ordering release of goods under Section 125 - question is answered in favour of Revenue and against the Importer.
Penalty - HELD THAT:- The importer, as noted by the Commissioner of Customs is familiar with the practices and procedures for import and export of goods. The chronological events in the matter are already noted in the preceding paragraph. The importer in the case on hand files an application for trade licence on 22.04.2020. Bill of lading is dated 27.04.2020. Bill of entry is filed on 23.06.2020. The importer used its volition and choices for importing the subject goods. It is not the argument of importer that for contravention in any import the authorities does not power to levy the penalty - Penalty upheld.
Appeal allowed in part.
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2021 (1) TMI 1109 - ITAT DELHI
Settlement of dispute relating to the tax arrears for the assessment years under consideration under The Direct Tax Vivad se Vishwas Act, 2020 - as stated that the necessary declaration in accordance with Section 4 of The Direct Tax Vivad se Vishwas Act, 2020 has been filed by the assessee - appeals have been preferred by the assessee against the Separate orders passed by the Learned Commissioner of Income Tax (Appeals)-16, New Delhi {CIT(A)} for Assessment Years: 2008-09 & 2007-08 - HELD THAT:- As aforesaid is subject to a caveat that in case the dispute relating to tax arrears for the captioned assessment years are not ultimately resolved in terms of the aforestated Act, the appellant (i.e., the assessee) shall be at liberty to approach the Tribunal for reinstitution of the appeals and the Tribunal shall consider such applications appropriately as per law. The respondent (i.e., the Revenue) has no objection with regard to the aforesaid caveat.
In view of the aforesaid, the appeals are consigned to the records and, for statistical purposes, are treated as dismissed.
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2021 (1) TMI 1108 - ITAT MUMBAI
Deduction u/s 80P - AO treated the assessee as a cooperative bank other than primary agricultural credit society and denied the claim of deduction u/s 80P - HELD THAT:- As relying on decisions in the case of the appellant [2018 (6) TMI 1746 - ITAT MUMBAI] and the decision of the Hon'ble High Court of Karnataka in the case of Tumkur Merchants' case [2015 (2) TMI 995 - KARNATAKA HIGH COURT] it is held that the appellant is eligible for deduction u/s. 80P(2)(a)(i) in respect of the income and it is also eligible for deduction in respect of dividend income of ₹ 1,19,589/- u/s. 80P(2)(d) of the Act. The AO is directed to allow deduction u/s. 80P as claimed by the appellant and assess the total income at Rs. Nil. Ground no. 1 is allowed of assessee.
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2021 (1) TMI 1107 - BOMBAY SESSIONS COURT
Seeking seven days custody of both the accused for their interrogation - money laundering - proceeds of crime - diversion of funds - schedule offence under Section 420 of IPC - HELD THAT:- No doubt udner Section 17(1)(f) of PMLA on 26.01.2021 the statement of accused Babulal Varma came to be recorded by ED and also questions pertaining to ₹ 410 crores obtained from Yes Bank was also put forth including non-constructions of tenements. But the facts remain to be answered that when these two persons are now arrested and produced before this Court, who not only obtained SRA scheme for construction, but mortgaged it and now even without making construction of the Rehab scheme at Wadala and Antop Hill they have diverted ₹ 410 crores, which was obtained as a loan from Yes Bank, after mortgaging FSI and after construction of rehabilitating building.
The proceeds of crime diverted out of criminal activities in view of schedule offence under Section 420 of IPC has been used and parked by the accused and thus, projected them as untainted. In such circumstances, complaint came to be registered and it needs to be investigated in detail. If it is not investigated definitely diversion of funds, for the purpose of which it was obtained was not carried out and thereafter, obtaining loan of ₹ 3,155/- crores out of said loan ₹ 2,755 crores was disbursed. Out of the same ₹ 1800 crores is outstanding and same has turned NPA.
Hence entire factual aspects of this money laundering after registration of FIR is within exclusive knowledge of both the accused and all these crucial facts, which are in their domain has to be exploded to being unearth deeply and direct involvement of M/s Omkar Realtors & Developers Pvt. Ltd. It appears active conspiracy in the case. Even both the accused form 25.01.2021 assisting the investigation and came to be arrested on 27.01.2021. Therefore, further investigation by ED has to be carried out for which their presence along with ED officials pertaining to this ECIR is necessary.
Both the accused i.e Babulal Varma and Kamalkishore Gupta, remanded in the custody of ED for further interrogation till 30.01.2021 - application allowed.
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2021 (1) TMI 1106 - ITAT BANGALORE
Foreign tax credit available - Eliminating double taxation of doubly taxable income in the hands of assessee - difference in FTC available to assessee on taxes paid in USA, Japan and Germany vis-s-vis Korea - HELD THAT:- India US DTAA - A perusal of the aforesaid provision makes it clear that, if a resident Indian derives income, which may be taxed in United States, India shall allowed as a deduction from the tax on the income of the resident, an amount equal to the tax paid in United States of America, whether directly or by deduction. The conditions mandated in the treaty is that if any "income derived" and "tax paid in United States of America on such income", then tax relief/credit shall be granted in India on tax paid in United States of America.
India Japan DTAA - Article 23(2) of India Japan DTAA deals with elimination of double taxation.
India Germany DTAA - All these clauses are identically worded as Article 25(2)(a) of India US DTAA. Relevant clauses for elimination of double taxation in the treaties under consideration states that, foreign tax credit shall not exceed the part of the income tax as computed before the deduction is given, "which is attributable as the case may be, to the income which may be taxed in that other State". We also note that, these clauses uses the expression 'income', which essentially means 'income' embedded in the gross receipt, and not the 'gross receipt' itself. We therefore do not agree with the computation adopted by Ld.AO.
For eliminating double taxation of doubly taxable income in the hands of assessee, it would be necessary to establish the taxes paid by assessee in USA, Japan, and Germany. The condition stipulated is very clear that FTC is available on taxes paid in these countries.
India- Korea DTAA - On perusal of the said Article, we find that, in India FTC is available to the taxes paid in Korea and such credit shall not exceed the taxes payable in India on doubly taxed income. Thus there is a difference in FTC available to assessee on taxes paid in USA, Japan and Germany vis-s-vis Korea.
In the present facts of the case, respective treaty countries withheld taxes against income from the source state at a particular rate. Article 25 of Indo U.S Treaty, Article 23 (2) of Indo-Japan Treaty and the Indo-Germany Treaty, allows FTC in India to the extent of tax paid in these countries, whereas, Article 23 of Indo-Korea Treaty allows FTC which shall not tax payable on such doubly taxable income in India.
We note that authorities below failed to understand the treaty provisions applicable in present facts with these countries regarding granting of FTC to assessee. On perusal of treaty provisions, we are of the view, that assessee is eligible for FTC in full, amounting to taxes paid in USA, Japan and Germany. We draw support from decision of Hon’ble Karnataka High Court in case of Wipro [2015 (10) TMI 826 - KARNATAKA HIGH COURT]
Only in case of Korea, FTC is limited to taxes payable on such doubly taxed income in India, before any deduction. In other words, FTC is limited to or taxes paid in Korea or India, whichever is less. AO is therefore directed to grant FTC in respect of taxes paid in USA, Japan and Germany. In case of taxes paid in Korea, FTC will be tax actually paid in Korea or payable in India on such doubly taxable income, which ever is lower.
Income earned income from Taiwan - We note that, India has not entered into double taxation avoidance agreement with Taiwan. Therefore, foreign tax credit available to assessee against taxes paid in Taiwan will be computed in accordance with section 91 of the Act.
The said provision provides for deduction of tax paid in any country from the Indian Income tax payable by assessee of a sum calculated on such doubly taxed income, even though there is no agreement under Section 90 for the relief or avoidance of double taxation. Explanation (iv) defines the expression income tax in relation to any country includes any excess profit tax or business profits tax charged on the profits by the Government of any part of that country or a local authority in that country. Therefore, even in the absence of an agreement under Section 90 of the Act, by virtue of the statutory provision, the benefit conferred under Section 91 of the Act is extended to the income tax paid in foreign jurisdictions.
We have dealt with FTC available to assessee in respect of foreign taxes paid by assessee in Japan, Korea, Germany and USA. For year under consideration credit has to be computed in similar manner as has been tabulated by assessee for assessment year 2013-14 reproduced hereinabove.
Our observations for assessment year 2013-14 in allowing tax credit to assessee is applied mutatis mutandis for year under consideration.
Insofar as Taiwan is concerned, section 91 also interprets computation of foreign tax credit to assessee in the similar manner. Section 91 contemplates the situation where there is no agreement between the Central Government and the other country concerned for the grant of relief in respect of income which has suffered taxation in both the countries or for the avoidance of double taxation of the same income.
This section lays down its own conditions for and extent of the relief contemplated to be given to an assessee. The first condition is that the assessee should be a resident in India as per term defined in Section 6 of the Act. The second condition is that the income which has accrued or arisen outside India to such resident in India should not be deemed to accrue or arise to him in India. The third condition is that such resident-assessee should have paid income-tax on such income under the law in force in that country. Once these three conditions are fulfilled, such resident-assessee would be entitled to the deduction from the Indian income-tax, as is payable by him, of a sum calculated on the doubly taxed income at the Indian rate of tax or the rate of tax of the other country concerned, whichever is the lower.
Thus, as per section 91 of the Act, in case of Tiwan, FTC is to be computed based on rate of tax applicable in India or Korea, whichever is less, on such doubly taxable income.
We are of the view that assessee is eligible for FTC in full, amounting to taxes paid in USA, Japan and Germany. We draw support from decision of Hon’ble Karnataka High Court in case of Wipro( [2015 (10) TMI 826 - KARNATAKA HIGH COURT]
In case of Korea, FTC is limited to taxes payable on such doubly taxed income in India, before any deduction. In other words, FTC is limited to or taxes paid in Korea or India, whichever is less. In case of Tiwan, FTC is to be computed based on rate of tax applicable in India or Korea, whichever is less, on such doubly taxable income. AO is thus directed to compute FTC accordingly.
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2021 (1) TMI 1105 - SUPREME COURT
Maintainability of application - initiation of CIRP - Corporate Debtor failed to repay the loan obtained from the Assignor Bank - Non Performing Asset - Financial Debt - time limitation - HELD THAT:- It is well settled by a catena of decisions of this Court, that Article 137 of the Limitation Act gets attracted to applications filed under Sections 7 and 9 of the IBC. The right to sue accrues when a default occurs, and if that default has occurred over three years prior to the date of filing of an application under Section 7 of the IBC, the application would be barred under Article 137 of the Limitation Act. At the highest, limitation started ticking on 27th March 2003, when a Recovery Certificate was issued by the DRT. The appellant has not disclosed any material in its application under Section 7 of the IBC to demonstrate that the application is not barred by limitation.
In its application under Section 7 of the IBC, the Appellant has not shown that the debt due to the Appellant from the Corporate Debtor is not barred by limitation. The right to sue accrued on 1st April 1993 when the amount of the Corporate Debtor with the Assignor Bank was declared NPA. In Part IV of its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. The claim is apparently barred by limitation - Under Section 18 of the Limitation Act, 1963, the acknowledgement of liability in writing, signed by a party in respect of any right or property claimed by such party within the prescribed period of limitation to file a suit and/or application, leads to computation of the period of limitation afresh, from the time when the acknowledgement is so signed.
It is reiterated that in its application under Section 7 of the IBC, the Appellant declared the date of default as 1st April, 1993. At the highest, limitation started running from 27th March, 2003, when the Recovery Certificate was issued by the DRT in favour of the Assignor. The NCLAT has rightly held that the application of the Appellant under Section 7 of the IBC barred by limitation - In any case, there are pending proceedings in the DRT, in respect of the dues of the Corporate Debtor. The Appellant has been substituted in place of the Assignor Bank in the execution proceedings in the DRT. There is an amended Certificate issued by the DRT. Orders have, from time to time, been passed in the Execution Proceedings. The Appellant is not without remedy against the Corporate Debtor.
There is no infirmity in the judgment and order of the NCLAT under appeal that calls for interference of this Court - appeal dismissed.
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2021 (1) TMI 1104 - MADRAS HIGH COURT
Maintainability of petition - no notice of personal hearing provided - HELD THAT:- A reply has been filed to the show cause notice as early as on 23.08.2010 and thereafter, no further proceedings have been initiated by the respondent. The petitioner has also not bothered to appear before the respondents or seek a clarification with regard to what has transpired thereafter. Even without approaching the respondent by way of a representation or a letter seeking clarity in the matter, the petitioner has approached this Court seeking a certiorari of the show cause notice, which is more than a decade old.
Moreover, there appears to be absolutely no trigger for the present Writ Petition and no notice of personal hearing or any other communication has been received after the show cause notice issued in August, 2010 - there is no cause of action at this juncture to justify this Writ Petition - Petition dismissed.
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2021 (1) TMI 1103 - ITAT DELHI
Disallowance of the additional depreciation claimed by the Appellant Company u/s. 32(1)(iia) - Manufacture or production - AO has held that the process of delivery of CNG to automobiles at the CNG filling centres does not amount to manufacture or production or an article or thing which is mandatory requirement for claiming additional depredation u/s. 32 (1)(iia) - Whether the compressed natural gas produced by the appellant, having different name, character and use from natural gas can be said to be covered by the phrase manufacture or production? - HELD THAT:- As decided in CENTRAL U.P. GAS LIMITED [2016 (12) TMI 814 - ALLAHABAD HIGH COURT] compressed natural gas in its compressed form has a distinct identity and character and use. It is settled law of the Apex Court in the case of Income Tax Officer Vs.Arihant Tiles and Marbles P. LTD. reported in [2009 (12) TMI 1 - SUPREME COURT] that when a commodity acquires a distinct name, use and commercial identity, it would acquire the trait of 'manufacture'.
Question is answered in favour of the assessee.
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