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Showing 201 to 220 of 2046 Records
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2018 (10) TMI 1850
Levy of Service Tax - Business Auxiliary service - appellant was receiving certain amounts from various Banks and Financial Institutions for arranging finance for their customers - period July, 2003 to March, 2005 - extended period of limitation - penalty - HELD THAT:- It is seen from the sample agreement that the appellant, as representative of the Bank, was required to explain the financial scheme and facilities to the customers and facilitation depends in giving loan to the customers - thus, this activity is to be classified under BAS for payment of service tax.
Time Limitation - HELD THAT:- It is seen that the fact of providing such services to Banks and Financial Institutions, was detected by the Revenue in view of the report of investigation - Revenue was fully justified in invoking extending period for demand of service tax under Section 73 of the Finance Act, 1994.
Penalty - HELD THAT:- Keeping in view the fact that the service tax liability has already been discharged along with interest, this is a fit case for waiver of penalty by taking recourse to Section 80 of the Finance Act, 1994.
Appeal allowed in part.
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2018 (10) TMI 1849
Long term capital gain - Reference to DVO - whether it is discretion of the AO to refer or not to refer to DVO for valuation of a capital asset u/s Section 50C(2) in the peculiar facts of the case ? - assessee had sold its ancestral property at Etah (U.P) for a consideration of ₹ 36,00,000/- whereas for the purpose of payment of stamp duty the property was valued at ₹ 3,06,86,000/- - HELD THAT:- AO neither discussed the contentions of the assessee for taking actual consideration as fair market value of the property sold nor referred the matter to the DVO as was required U/s 50C(2) despite specific prayer made by the assessee at the first stage.
AO has also not found or alleged that the assessee received any excess amount over the sale consideration mentioned in the deeds.
On the failure of the AO to follow the course as prescribed under section 50C(2) no infirmity in the order of the CIT(A) in quashing the addition made by the AO.
Department cannot be allowed a second inning, by sending the matter back to AO, enabling it to fill in the lacunae and shortcomings of the assessment order, and putting the assessee virtually to face a re-trial for no fault of hisandto again put him to prove before the AO that the sale consideration was the “fair market value” of the property sold by him. This would amount to giving life to an order which on the basis of facts on records is unsustainable in law.
In view of our findings in the cases of ‘Tarun Agarwal [2018 (8) TMI 1989 - ITAT AGRA] and ‘Dr. Sanjay Chaubey (HUF) [2018 (7) TMI 133 - ITAT AGRA] and ANIMA INVESTMENT LTD. [2000 (1) TMI 150 - ITAT DELHI-D] with LALITHA KARAN, HYDERABAD [2017 (1) TMI 505 - ITAT HYDERABAD] we hold that at this stage, the AO cannot be allowed a second inning, by sending the matter back enabling him to make good his own shortcomings and putting the assessee virtually to face a re-trial for no fault on his part and to again prove before the AO that the sale consideration was the "fair market value" of the property sold by him. This would amount to giving a lease of life to an order which on the basis of facts on records is unsustainable in law.
Failure of the AO to follow the procedure as prescribed under section 50C(2) in particular, we do not find any infirmity in the order of the CIT(A) in quashing the addition made by the AO. - Decided against revenue.
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2018 (10) TMI 1848
Appointment of RP - HELD THAT:- In view of the order dated 12.10.2018 the IBBI confirmed the name of Mr. Bhuvan Madan having registration no IBBI/IPA-001/IP-P01004/2017-2018/11655 to be appointed as RP in place of Shri Ramchandra Dallaram Choudhary in pursuance of the resolution dated 24.09.2018 passed by the Committee of Creditors.
Newly appointed RP as well as Committee of Creditors is directed to take necessary steps towards the early payment of professional fee of the IRP namely Mr. Ramchandra Dallaram Choudhary - Application disposed off.
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2018 (10) TMI 1847
Challenge to certain clauses of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017notified on 3.3.2017 and the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 dated 3.3.2017 made under the Telecom Regulatory Authority of India Act, 1997.
HELD THAT:- In Secretary, Ministry of Information & Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal, (1995) 2 SCC 161, this Court referred to the pressing need to create a comprehensive enactment regulating airwaves, being public property. Public interest demanded that service providers be regulated and the usage of the airwaves through frequencies be regulated. A direction was thus issued to the Government of India to formulate a comprehensive enactment after noting the inadequacies that were felt in the Indian Telegraph Act, 1885 - the Government formulated a National Telecom Policy in 1994 and then decided to promulgate an ordinance which led to the enactment of the TRAI Act.
Since the Regulation made under Section 36 of the said Act is under challenge, it must first be stressed that a restrictive meaning cannot be given to the words “regulation” or “regulate”, as otherwise the very object of the Act would be stultified - under Section 36 of the TRAI Act, the Authority is empowered to carry out the purposes of the said Act as can be discerned from the Preamble to the Act. What is clear from the amended Preamble to the Act is that the interests of service providers and consumers are of paramount importance, both of which have a role to play when regulations are framed under Section 36.
It is clear that only a person who is licensed under Section 5 of the Indian Wireless Telegraphy Act can use a teleport from India from which a TV channel is to be uplinked to a satellite. Equally, to be uplinked to a satellite and thereafter downlinked from such satellite to an MSO, permission would be required from the Central Government. This would be clear from a reading of the separate guidelines for uplinking and downlinking channels issued by the Government of India.
The provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of this Act. It is important to remember that under Section 11(1)(a)(iv), one of the functions of the Authority, though recommendatory, is to facilitate competition and promote efficiency in the operation of telecommunication services (which includes broadcasting services) so as to facilitate growth in such services. What is also clear from Section 11(1)(b), is that terms and conditions of interconnectivity between different service providers have to be fixed, which necessarily includes terms that relate not only to carriage simpliciter as submitted by Dr. Singhvi, but to all terms and conditions of interconnectivity between broadcaster, MSO, Cable TV operator and the ultimate consumer, so as to ensure that the object of the Act is carried out, namely, that both broadcasters and consumers get a fair deal. Towards this end, Section 11(2) makes it clear that the Authority may, from time to time, notify the rates at which telecommunication services, including broadcasting services, within India and outside India, shall be provided under this Act - It is only when TRAI issued a second consultation paper dated 4.5.2016 that Star India submitted its response in June, 2016 where it raised for the first time the issue relating to the Copyright Act as an afterthought. What is important to notice is that even in this response, Star India reiterated that discount caps should be provided for as this checks discriminatory behavior during negotiation and will facilitate designing of discount criteria based on intelligible differentia which will help serve the diverse needs of consumers. In a third response to the draft regulations and tariff order, Star India raised jurisdictional issues of TRAI.
The Regulation and the Tariff Order have been made keeping the interests of the stakeholders and the consumers in mind and are intra vires the regulation power contained in Section 36 of the TRAI Act. Consequently, we agree with the conclusion that these writ petitions deserve to be dismissed.
If in exercise of its regulatory power under the TRAI Act, TRAI were to impinge upon compensation payable for copyright, the best way in which both statutes can be harmonized is to state that, the TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over the Copyright Act which is an Act which protects the property rights of broadcasters. We are, therefore, of the view that, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter - Appeal dismissed.
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2018 (10) TMI 1846
Allowable revenue expenditure - Expenditure on replacement of old machinery by purchase and installation of new machinery - HELD THAT:- A Division Bench of this Court, in the case of Super Spinning Mills Ltd., Vs. ACIT [2013 (9) TMI 88 - MADRAS HIGH COURT] considered an identical Substantial Question of Law, as framed in these appeals and after taking note of the decision of the Hon'ble Supreme Court in Saravana Spinning Mills Pvt. Ltd., and Mangayarkarasi Mills (P) Ltd., remanded the matter to the CIT (Appeals) to decide the issue as to whether the expenditure, in effect, could be treated as revenue expenditure.
In the light of the legal position as enunciated in Saravana Spinning Mills Pvt. Ltd. [2007 (8) TMI 16 - SUPREME COURT] and Mangayarkarasi Mills (P) Limited [2009 (7) TMI 17 - SUPREME COURT] we are of the considered view that the matter has to be remanded for fresh consideration. Though in the case of Super Spinning Mills Ltd. [2013 (9) TMI 88 - MADRAS HIGH COURT] the Division Bench thought fit to remand the matter to CIT(A), we are of the considered view that the matter should be remanded to the Assessing Officer, since the assessee company is under liquidation and there has also been a change of name.
Appeals filed by the Revenue are allowed and the orders passed by the Tribunal, the Commissioner of Income Tax (Appeals) as well as the assessment orders are set aside and the matter is remanded to the Assessing Officer for fresh consideration, who shall afford an opportunity to the assessee or the liquidator, who is incharge of liquidation proceedings, to state their case in a proper perspective and decide on the issue as to whether the expenditure, in effect, could be treated as Revenue expenditure.
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2018 (10) TMI 1845
TP Adjustment - interest income adjustment - lower authorities had taken domestic interest rates as the relevant benchmark for arriving at the impugned arm’s length adjustment involving foreign currency denomination loans to the overseas associate enterprise(s) - CIT(A) as directed AO/ TPO to bench mark the impugned loan transaction at LIBOR rate than domestic interest rates keeping in mind the nature of international transaction - HELD THAT:- A catena of case law has already concluded that such foreign currency denomination loans have to be benchmarked at LIBOR rate only. learned departmental representative fails to indicate any legal or factual exceptions thereto. We therefore uphold the CIT(A) findings under challenge.
CIT-A concluding that corporate guarantee does not amount to an international transaction within the meaning of Section 92B - HELD THAT:- The revenue fails to quote any judicial precedent to the contrary. We affirm the CIT(A) findings on the instant legal issue as well. The Revenue’s identical first substantive ground seeking to revive ALP adjustment on interest as loans and corporate guarantee fails therefore.
Addition u/s 36(1)(va) read with section 2(24)(x) - delayed employees contribution to ESI/PF - HELD THAT:- CIT(A) holds that the assessee had paid the amount in issue before the due date of filing return not inviting any disallowance as per decision in CIT vs Vijay Shree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] and CIT vs Coal India Ltd. [2015 (8) TMI 1451 - CALCUTTA HIGH COURT] respectively. We affirm the CIT(A)’s findings under challenge.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- Assessee has not derived any exempt income in the impugned assessment year. The CIT(A) has followed hon’ble Madras high court’s decision in Redington (India) Ltd. [2017 (1) TMI 318 - MADRAS HIGH COURT] that the impugned disallowance provision does not apply in the absence of exempt income - Decided against revenue.
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2018 (10) TMI 1844
Exemption u/s. 10B computation - whether at the stage prior to arriving at the gross total income i.e., before allowing set off for carry forward of losses or the carry forward losses must be set off against the gross total income & then exemption u/s. 10B should be allowed? - HELD THAT:- Since, it is a recurrent issue and the issue has been allowed in the assessee’s own case [2018 (2) TMI 1998 - ITAT CHENNAI] relying on the judgement of the Hon’ble Apex Court in the case of CIT vs Yokagawa India Ltd [2016 (12) TMI 881 - SUPREME COURT] the Revenue’s appeal is dismissed.
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2018 (10) TMI 1843
Addition u/s 14A - Disallowance of interest expenditure - HELD THAT:- The facts of the present case are similar to the facts of the case of Sudhir MehtaI [2017 (12) TMI 1668 - ITAT MUMBAI] wherein as set aside the order of the CIT(A) and direct the AO to allow deduction in respect of said interest accrued and calculated at 12% per annum after disallowing proportionate interest in respect of the investment in shares amounting after verifying the calculation of the interest quantification.
Levy of interest u/s. 234A, 234B and 234C - HELD THAT:- As relying on case of Sudhir MehtaI [2017 (12) TMI 1668 - ITAT MUMBAI] we direct the AO to recompute the interest liability after reducing the amount of tax deductible at source on the income earned. Appeal of assessee is allowed for statistical purpose.
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2018 (10) TMI 1842
Addition u/s 69 - Unexplained investment - payment in cash over and above the sales consideration recorded in the sale deeds - assessee alleged as no opportunity of cross examination given - HELD THAT:- Addition is not based merely on the statement but the documentary evidence in the shape of agreement dated 11/05/2005, the bank statement of the sale deeds showing deposits of cash on the dates of the execution of the agreement as well as sale deeds and further the part consideration paid through cheque find mentioned in the agreement to sell as well as in sale deed established the fact of existence of the said agreement between the parties.
The statements recorded by the Investigation Wing further corroborates the documentary evidence and hence it is not a case of addition based on mere statement of third party. Further the statements of the seller cannot be said to be the statement of the third party but they were very much party to the transaction of sale of the lands in question to the assessee. As regards the opportunity for cross examination, the ld CIT(A) called for a remand report from the Assessing Officer after allowing the opportunity of cross examination.
Despite various opportunities given by the Assessing Officer, both the parties kept on seeking deferment of remand proceedings and finally the statements on behalf of the sellers were made that they stand by their statements made on the earlier occasions. Assessing Officer made sincere efforts for granting the opportunity to cross examine to the assessee, however, it appears that both the parties in collusion avoided the cross examination.
Thus, the blame cannot be shifted on the Assessing Officer for non-cross examination if any.
Addition made by the Assessing Officer in the hand of seller U/s 68 instead of capital gain would not affect the merits of the addition made in the hand of the assessee.
Having analysed the entire facts, the relevant record including the evidence brought on record by the Assessing Officer, we do not find any error or illegality in the orders of the authorities below, hence uphold the order of the ld. CIT(A) qua this issue.- Decided against assessee.
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2018 (10) TMI 1841
TP Adjustment - Forex loss on cancellation of forward contract - removing forex fluctuation gain from operating profit - HELD THAT:- As in FISERV INDIA PVT. LTD. [2016 (1) TMI 1276 - DELHI HIGH COURT] has decided this issue in favour of the assessee and against the Revenue - As directed to treat the foreign exchange gain/loss as an operating item. The AO/TPO was directed to compute the ALP of the international transactions entered into by FIPL with its AEs.
Also see AGILIS INFORMATION TECHNOLOGIES INTERNATIONAL (I) PVT. LTD. [2016 (2) TMI 1078 - DELHI HIGH COURT] we direct the Assessing Officer to treat the forex fluctuation gain as operating income for calculation of OP/OC. The assessee succeeds on this point.
Comparable selection - inclusion of Infosys Ltd and Wipro Technologies as good comparables - HELD THAT:- As decided on own case . [2015 (5) TMI 637 - ITAT DELHI] and [2015 (6) TMI 132 - ITAT DELHI] respectfully following the judgment of the Hon'ble jurisdictional High Court in Agnity India [2013 (7) TMI 696 - DELHI HIGH COURT] we hold that Infosys Technologies Ltd., cannot be treated as comparable with the assessee company. This company is, therefore, directed to be excluded from the list of comparables.
WIPRO Technologies Services Ltd - Comparable as excluded by the Tribunal in the case of Microsoft India [R&D] Pvt Ltd. [2018 (10) TMI 70 - ITAT DELHI]
Reduction in deduction allowed u/s 10A - HELD THAT:- Once the forex fluctuation gain is treated as part of operating profit, then the same deserves to be allocated amongst various units of the assessee and basis of allocation should be same as that deduction for the allocation of expenses amongst various units. We, accordingly, direct the Assessing Officer to allocate forex fluctuation gain also to Pune unit based on turnover. The assessee succeeds on this issue.
Calculation of surcharge and education cess - AO has calculated surcharge and education cess on the gross amount without giving effect to the MAT credit deduction by the assessee for the year under consideration - HELD THAT:- As relying on M/S. VACMENT INDIA AGRA [2014 (10) TMI 787 - ALLAHABAD HIGH COURT]we direct the Assessing Officer to calculate the surcharge and education cess on net tax liability. The assessee succeeds on this issue also.
Short credit of TDS - HELD THAT:- We direct the assessee to furnish relevant details of TDS and the Assessing Officer is directed to verify the same and allow credit of TDS as per provisions of law.
Charging of interest is consequential and the Assessing Officer is directed to charge interest as per provisions of law.
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2018 (10) TMI 1840
Deduction claimed u/s 80IB - assessee has not completed the project within the stipulated period of five years in order to avail deduction - Disallowance on account the project which was not completed within the stipulated time as discussed by the AO - HELD THAT:- As decided in own case [2017 (1) TMI 445 - ITAT MUMBAI] assessee has completed the project within five years from the end of the relevant year in which the approval was taken.
Project is completed and occupation in respect of all the blocks that is “A”, “B”, “C”, “D” “E” are obtained within stipulated time limit of 31.3.2013 and there is no violation of any of the conditions mentioned in the provisions of section 80IB(10) of the Act. Accordingly we have no hesitation in allowing this claim of assessee and accordingly the same is allowed. - Decided in favour of assessee.
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2018 (10) TMI 1839
Levy of interest under Section 42(3) of the Tamil Nadu Value Added Tax Act, 2006 - failure to transfer the amount lying to the credit of merged company after merger - HELD THAT:- In view of the submission made by the learned Senior Counsel appearing for the petitioner that the petitioner would pay the sum of ₹ 2,17,72,602/- without any dispute, there will be an order of interim stay of recovering interest alone in pursuant to the impugned proceedings, subject to the condition that the petitioner pays the sum of ₹ 2,17,72,602/- within a period of two weeks from the date of receipt of a copy of this order.
Post the matter on 25.10.2018 for reporting compliance and getting instructions.
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2018 (10) TMI 1838
Jurisdiction - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- National Company Law Tribunal is bereft of jurisdiction to deal with these cases because jurisdiction to try the cases against guarantors has not yet been notified by the Government till now.
This Bench has already decided that National Company Law Tribunal is bereft of jurisdiction as stated by the respondents in miscellaneous applications, M/s. L and T Infrastructure Finance Co. Ltd., another financial creditor, filed against more or less against the same respondents for they remained guarantors even to the loan availed by the same corporate debtor from M/s. L and T Infrastructure Finance Co. Ltd., under same section of law - Nevertheless this point of filing independent petitions will not make any difference to the legal point of want of jurisdiction to deal with these cases ; therefore we place that discussion to apply it in toto to these cases to say that these cases shall also be dismissed in limine on the same point.
Petition dismissed.
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2018 (10) TMI 1837
Liquidation of the corporate debtor - absence of any resolution plan - HELD THAT:- It is stated in the application that the corporate debtor does not have any running business nor any employees. The assets of CD majorly comprise factory land and building situated in Faridabad lying unused and various advances recoverable form related parties of Corporate Debtor. In the absence of any resolution plan it was decided in the 3rd meeting held on 14.06.2018 that the Corporate Debtor cannot be revived and should be liquidated - It is pertinent to note here that the Resolution Professional has submitted its willingness to act as a liquidator and undertook to submit its consent in specified form as per section 34(1) of the Code.
Thus, in the absence of any resolution plan and for want of time beyond statutory Corporate Insolvency Resolution Process period; there is no other alternative but to order, in conformity with the 100% decision of the CoC, for liquidation of the corporate debtor under Section 33 of the Code - corporate debtor is ordered to be liquidated - application allowed.
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2018 (10) TMI 1836
MAT credit including Surcharge & Edu.Cess - Tax credit in respect of tax paid on deemed income relating to certain companies u/s 115JAA - HELD THAT:- On careful reading, the sub-section 2A, the tax credit to be allowed shall be the difference of tax paid for any AY under sub-section (1) of 115JB and the amount of tax payable on his total income computed in accordance with the other provisions of this Act. The important word used is tax paid and as per the Hon’ble Apex Court decision in the case of K. Srinivasan [1971 (11) TMI 2 - SUPREME COURT] the term ‘tax’ includes surcharge.
Sub-section (5) of section 115JAA. “Set off” in respect of brought forward tax credit shall be allowed for any AY to the extent of difference between tax on his total income and the tax which would have been payable u/s 115JB, as the case may be for that AY. On careful reading, the term used are tax not income tax or any other term. Needless to say the term tax includes surcharge.
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2018 (10) TMI 1835
Deduction u/s 10A computation - HELD THAT:- As decided in HCL TECHNOLOGIES LTD. [2018 (5) TMI 357 - SUPREME COURT] what is excluded from ‘export turnover’ must also be excluded from ‘total turnover’, since one of the components of ‘total turnover’ is export turnover. Hence, the substantial question of law as suggested at (1) would no more survives for consideration.
TP Adjustment - comparable selection - tribunal holding that certain comparables are functionally different and liable to be excluded from the list of comparables - grant Market Risk Adjustment - HELD THAT:- As decided in M/S. SOFTBRANDS INDIA P. LTD. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] This court cannot be expected to undertake the exercise of comparison of the comparables itself which is essentially a fact-finding exercise. Neither the sufficient Data nor factual information’s nor any technical expertise is available with this Court to undertake any such fact-finding exercise in the said appeals under Section 260-A of the Act. This Courtis only concerned with the question of law and that too a substantial one, which has a well-defined connotations as explained above and findings of facts arrived at by the Tribunal in these type of assessments like any other type of assessments in other regular assessment provisions of the Act, viz. Sections 143, 147 etc. are final and are binding on this Court. While dealing with these appeals undersection 260-A of the Act, we cannot disturb those findings of fact under Section 260-A of the Act, we cannot disturb those findings of the fact under Section 260-A of the Act, unless such findings are ex-facie perverse and unsustainable and exhibit a total non-application of mind by the Tribunal to the relevant facts of the case and evidence before the Tribunal.
Advance for occupying additional space - Disallowance u/s 37(1) - AO had held that the rental deposit is in the nature of capital investment and it is not adjustable out of future rental expenditure - HELD THAT:- Tribunal found that the amount is towards advance for lease of additional space and the loss of money is in the course of business which amount has been written off as workable capital. It is not in dispute that the assessee had paid a sum of ₹ 20,00,000/- towards advance for lease of additional space for its business expansion. Due to breach of contract the assessee has suffered loss of ₹ 20,00,000/- as the assessee could not recover the same, which amount is written off as irrecoverable. The finding arrived at by the Tribunal as well as the Commissioner is a finding of fact which would not give rise to any substantial question of law.
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2018 (10) TMI 1834
Maintainability of second petition on same cause of action - Corporate Debtor failed to make repayment of its debt - existence of dispute or not - HELD THAT:- On perusal of the order of the Hon'ble Supreme Court in the case of Macquarie Bank Ltd. [2017 (12) TMI 850 - SUPREME COURT], it is clear that Hon'ble Supreme Court has discussed the judgment of Hon'ble NCLAT passed in the case of Smart Timing Ltd. However, Hon'ble Supreme Court has not overruled its earlier judgment and the judgment of NCLAT, whereby the SLP was dismissed. It is clear that this case has been based on the same cause of action. This case has been finally decided by the Hon'ble Supreme Court by order dated 18.8.2017 whereby the appeal filed against the Hon'ble NCLAT has been dismissed.
It is also clear that Hon'ble Supreme Court has further laid down the law in case of Macquarie Bank Ltd. (supra), but Hon'ble Apex Court has not overruled the judgment passed in case of Smart Timing [2017 (8) TMI 1590 - SC ORDER].
Thus, second petition on the same cause of action is not maintainable - this petition is dismissed on the threshold.
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2018 (10) TMI 1833
CIRP Process - time limitation - exclusion of time consumed in litigation and otherwise - extension of CIRP beyond the statutory time limit of 270 days - the applicant wants to issue fresh Form G by excluding the said property, which belongs to the corporate debtor - HELD THAT:- Admittedly, Form-G were issued three times and not even a single Resolution Plan was received. Further, admittedly, the land which is sought to be excluded belongs to the corporate debtor and any asset which belongs to the corporate debtor, cannot be excluded from the information memorandum.
Application dismissed.
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2018 (10) TMI 1832
Interpretation of statute - applicability of provisions of the Indian Penal Code - offences also within the purview of the Information Technology Act, 2000 - whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000?
HELD THAT:- Perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code.
The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.
n such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for - it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian Penal Code, in light of the specific provisions contained in the Information Technology Act, 2000 and leave it to the discretion of the Police Authorities to decide in which direction the investigation is to be proceeded. The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology.
The subject FIR insofar as the investigation into the offences punishable under the Indian Penal Code is set aside - petition allowed.
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2018 (10) TMI 1831
Territorial Jurisdiction - validity of order of transfer of employees - services of the petitioner has been transferred from district Durg to district Surajpur - HELD THAT:- The issue of transfer and posting of an employee, whose services, is transferable, has been considered time and again by the Apex Court and the various High Courts of this country and by now which stands settled by a catena of decisions, that it is entirely upon the competent authority to decide when, where and at what point of time a public servant has to be transferred. It has also been repeatedly held by the Courts that transfer is not only an incident to service, but is also an essential conditions of service - The transferable employee cannot claim as a matter of right nor does he have a vested right to work at a particular place and the Courts cannot interfere with a transfer and posting made on administrative grounds or even if it is made in public interest. Transferring of an employee does not affect any of his legal rights nor does it affect the conditions of service in any manner and so far as the employee is concerned, he can have no choice in the matter and many a times it is done for the efficiency in the public administration.
This Court does not find any strong case made out by the petitioner calling for an interference with the order of transfer, which has been made on the administrative ground - Petition dismissed - decided against petitioner.
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