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Showing 201 to 220 of 1598 Records
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2022 (3) TMI 1398 - CALCUTTA HIGH COURT
Validity of impugned SCN and subsequent impugned order of adjudication - full text of the impugned adjudication order was not available on the official portal of the respondents - impugned order of adjudication is non-speaking - impugned order of adjudication was passed without giving the petitioner any opportunity of hearing - violation of principles of natural justice - HELD THAT:- The allegations of the petitioner that the impugned order is not a speaking one and that the petitioner was not given any opportunity of hearing are not tenable; and so far as the non-availability of the full text of the adjudication order is concerned, there could not be any grievance since Mr Siddiqui has handed over a copy of the same to the petitioner on the basis of which the petitioner can now file a statutory appeal before the appellate authority within two weeks from date.
If such appeal is filed by the petitioner within the time stipulated, the appellate authority concerned shall take a lenient view while considering the issue of limitation for the purpose of filing the appeal.
Appeal disposed off.
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2022 (3) TMI 1397 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Seeking admission of the claims by the IRP based on corporate guarantee even though there is no default by the principal borrower, for whose debt, the corporate guarantee is furnished by the Corporate Debtor - inclusion of related party of the Corporate Debtor in the Committee of Creditors (COC) and the exclusion of interest from the claim of the Applicant - Financial Creditors or not - HELD THAT:- The claim of the Respondent No. 2 and 3 is that though the loan was recalled subsequent to the initiation of CIRP but the default had occurred prior to that, and so, the then IRP had rightly admitted the claims of Respondent No. 2 and 3 as a Financial Creditors and included them as members in the CoC
The definition of creditor is very wide, which includes not only a person to whom a debt is owed but also includes Financial Creditor, Operational Creditor, Secured Creditor, Unsecured Creditor or a Decree Holder. Therefore, definition of creditor makes it clear that as per Section 3(10) of IBC, 2016, there are different types or creditors, and Financial Creditor is one of them - And as per the definition of Financial Creditor, only those creditors will be treated as a Financial Creditor, to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred.
It is an admitted fact that the amount is not disbursed by the respondent no. 2 to the corporate debtor. Rather, the corporate debtor has simply executed the deed of guarantee, therefore, the IRP by filing an additional affidavit has rightly quoted the decision of the Anuj Jain's case [2020 (2) TMI 1259 - SUPREME COURT] and submitted that since the IRP is not empowered to review the order, therefore, the same may be considered by the Adjudicating Authority.
The Respondent No. 2 and 3 in their written submissions have contended that though there is a provision but the respondents have not appointed their nominee Director, which would be evident from the MCA data. As it is seen that part II of the Article of Association of the corporate debtor clearly says that in case of conflict between the two - the debenture holder will actively participate in the policy making process of the corporate debtor.
There are not even an iota of doubt that the Respondents no 2 and 3 are not in a position to have control over the policy decisions of the corporate debtor and on the composition of the board of directors. As per the definition of related party, what is required to be established is, whether a person is in a position to control the composition of the Board of Directors and it is not necessary that he/they is/are the director(s) of the corporate debtor or not. Hence, the contention of the Respondent no. 2 and 3 that they have not nominated any Director as yet and they are not in a position to take part in the policy making process, cannot be accepted.
Thus, in terms of the AOA, since the Respondents no. 2 and 3 are in a position to have control over the policy decisions of the corporate debtor and on the composition of the board of directors, hence they are related parties in terms of section 5(24) of the IBC, 2016 - the Respondents No. 2 and 3 can be treated as 'creditors' but they shall not be treated as 'Financial Creditors' under Chapter II, Section 5(7) of the IBC, 2016.
Application disposed off.
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2022 (3) TMI 1396 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking direction to Liquidator to accept the Global Corp Logistics LLC as base price - direction to Liquidator to conduct Swiss challenge among the prospective applicants including the interest received after the specified timelines for value maximization - HELD THAT:- It is relevant to refer RAVI DEVELOPMENT VERSUS SHREE KRISHNA PRATHISTHAN AND ORS. in which the Hon'ble Supreme Court has held with respect to adoption of Swiss Challenge Method that "The method is transparent inasmuch as all the parties were well aware of the "right of first refusal" accorded to the "originator of proposal". As per the method which was known to all the parties the originator of the proposal must in consideration of his vision and his initiative be given to the benefit of matching the highest bid submitted. Further has also held that an unsolicited bid or a proposal received from a developer can thus be subjected to a bidding process by different modes including the Swiss challenge method.
The Applicant/ Liquidator is hereby allowed to fix Proposal -A as base price and accordingly adopt Swiss Challenge Method including the proposals received after the specified timeline considering the fact of maximization of the value of the Corporate Debtor - Application allowed.
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2022 (3) TMI 1395 - SC ORDER
Disallowance u/s 14A r.w.r. 8D - Tribunal remanding back the issue to assessing authority with a direction to allow the relief as the assessee do not have exempt income and as such no disallowance can be made under Section 14A read with Rule 8D contrary to provisions of Section 14A and Rule 8D and Circular No.5/2014 dated 11.2.2014 - HC held object of Section 14A is to curb the practice to claim deduction of expenses incurred in relation to exempt income against taxable income and at the same time avail of the tax incentive by way of exemption of exempt income without making any apportionment of expenses incurred in relation to exempt income - HELD THAT:- Issue notice.
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2022 (3) TMI 1394 - ITAT VARANASI
Penalty u/s. 271FA - non-compliance of provisions of Section 285BA(1) - HELD THAT:- The said penalty order was challenged by assessee by filing first appeal before CIT(A), who dismissed the appeal of the assessee on the grounds that the appeal against penalty order passed u/s 271FA for infringement of Section 285BA(1) of the 1961 Act, is not subject to challenge before ld. CIT(A) keeping in view provisions of Section 246 and 246A of the 1961 Act, and hence the appeal was dismissed by ld. CIT(A) as infructuous being not maintainable with ld. CIT(A) and directions were issued to the assessee to file its appeal with appropriate authority designated for adjudicating such appeals.
We are afraid that this finding of ld. CIT(A) is erroneous in the teeth of provisions of Section 246A(1)(q) of the 1961 Act, and infact ld. CIT(A) is the appropriate authority designated for adjudicating first appeal against an penalty order passed by AO u/s 271FA of the 1961 Act. The provisions of Section 246A(1)(q) of 1961 Act is a residuary provisions which stipulate that first appeal against an order imposing penalty under Chapter XXI shall lie with CIT(A). Undoubtedly, provisions of Section 271FA falls under Chapter XXI of the 1961 Act.
We are setting aside appellate order passed by CIT(A) as not sustainable in the eyes of the law and restore the matter back to the file of ld. CIT(A) for fresh adjudication of all the grievances/grounds of appeal raised by the assessee in its appeal before ld. CIT(A), by holding that CIT(A) is the correct designated appellate authority to adjudicate first appeal arising from an penalty order passed by AO u/s 271FA.
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2022 (3) TMI 1393 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Operational Debt or not - claim of the Licensor for payment of License Fee for use and occupation of Immovable Premises for commercial purposes - applicability of decision in the case of M. RAVINDRANATH REDDY VERSUS G. KISHAN [2020 (2) TMI 56 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that The alleged debt on account of purported enhanced rent of leasehold property does not fall within the definition of the operational debt in terms of Section 5(21) of the Code.
HELD THAT:- The questions framed in Referring Judgment dated 07th March, 2022 be placed for consideration before the 'Larger Bench'. Let the matter be placed before the Hon'ble Chairperson on the administrative side to constitute a 'Larger Bench' for considering the questions as framed in the Judgment dated 07th March, 2022.
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2022 (3) TMI 1392 - RAJASTHAN HIGH COURT
Seeking grant of Anticipatory Bail - allegation of evasion of tax - economic offender - offence punishable under Sections 132 (1)(a), (f),(h),(i),(1) of Central Goods and Services Tax Act, 2017 - HELD THAT:- It is admitted position that raid was conducted in M/s Miraj Products Private Limited and as per the story of the prosecution, there is evasion of tax of Rs.869 Crores.
The Hon’ble Apex Court in various pronouncement held that the economic offender should not be dealt as general offender because economic offenders run parallel economy and they are serious threat to the national economy. So, after considering the submission put-forth by learned counsel for the parties and in the facts and circumstances of the present case and also looking to the seriousness of the offence(s) alleged against the petitioner without expressing any opinion on the merits of the case, it is not considered a fit case to enlarge the petitioner on anticipatory bail under Section 438 Cr.P.C.
The anticipatory bail application under Section 438 stands dismissed.
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2022 (3) TMI 1391 - SC ORDER
Suit for infringement of this trademark and passing off - HELD THAT:- Hon’ble Mr. Justice B.R. Gavai pronounced the Judgment of the Bench comprising Hon’ble Mr. Justice L. Nageswara Rao and His Lordship.
The appeal is allowed in terms of the Signed Reportable Judgment.
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2022 (3) TMI 1390 - ITAT BANGALORE
Delayed employees’ share of contribution to PF and ESI - amount not paid on or before the due date as mentioned in Sec 36(1)(va) - HELD THAT:- The Hon’ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (2014 (3) TMI 386 - KARNATAKA HIGH COURT) has taken the view that employee’s contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee’s share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon’ble Karnataka High Court.
In this case there is no dispute that the assessee made payment of the Employees share of PF/ESI on or before the due date for filing return of income for AY 2017-18 u/s.139(1) of the Act.
Whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also? - As we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act, deserves to be deleted. - Decided in favour of assessee.
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2022 (3) TMI 1389 - ITAT DELHI
Delayed payment of employees’ contribution to ESI & PF account within the due date provided under the PF & ESI Act - Adjustments and intimation u/s 143(1) - HELD THAT:- It is well settled that any adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of Section 143(1) of Income Tax Act. In this regard, we respectfully mention the order of Hon’ble Jurisdictional High Court in the case of ACIT vs. Haryana Telecom Pvt. Ltd. [2009 (5) TMI 607 - ITAT DELHI]
At the very least, Revenue should have given due consideration to the fact that the issue was highly debatable and controversial. As already discussed earlier adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of section 143(1) of Income Tax Act. Revenue was clearly in error, in making the aforesaid adjustments u/s 143(1) of Income Tax Act on 16.10.2019 a debatable and controversial issue.
Further, it is also well settled that retrospective amendment cannot be invoked to make addition by way of adjustment and intimation u/s 143(1) of Income Tax Act. This view was taken by the Hon’ble Supreme Court in the case of CIT vs. Hindustan Electro Graphites Ltd.
[2000 (3) TMI 2 - SUPREME COURT] in which the view of Hon’ble Kolkata High Court in the case of Modern Fibotex India Ltd. & Anr.[1994 (3) TMI 17 - CALCUTTA HIGH COURT] was approved. Same view was taken by the Hon’ble Madhya Pradesh High Court in the case of CIT vs. Satish Traders [2000 (9) TMI 51 - MADHYA PRADESH HIGH COURT]
We are of the view that the aforesaid additions by way of adjustment and intimation u/s 143(1) of Income Tax Act, were beyond the scope of Section 143(1) of Income Tax Act; and further, that the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue - Decided in favour of assessee.
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2022 (3) TMI 1388 - PUNJAB AND HARYANA HIGH COURT
Reopening of assessment u/s 147 - As contented that the exercise of reopening in the present case is not in consonance with the instructions dated 04.03.2021 issued by the CBDT and further clarified on 12.03.2021 inasmuch as the prior approval of the Chief Commissioner, Income tax had not been accorded - HELD THAT:- As asserted that as per the afore-noticed instructions the CCIT was enjoined to call for the list of the potential cases along with details and evidences from the Subordinate Authorities and thereafter upon careful examination was to suggest to the A.O. the potential cases to be taken for consideration for action u/s148 - Still further subsequent to the issuance of notice under Section 148 of the Act, the A.O. was required to upload all the underlying/relevant documents relied upon as also the satisfaction recorded. It is the categoric submission made by counsel that such procedure has been given a complete go-by.
Reliance has also been placed upon judgment of the Apex Court in UCO Bank vs. Commissioner of Income Tax [1999 (5) TMI 3 - SUPREME COURT] to argue that the circulars issued under Section 119(1) of the Act would have binding effect and are enforceable.
Notice of motion returnable for 18.07.2022. Further proceedings in the meanwhile shall be kept in abeyance.
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2022 (3) TMI 1387 - ORISSA HIGH COURT
Enhancement of turnover in the absence of any material to establish that goods found short have been sold is lawful and valid - Applicability of decision of MAHABIR RICE MILL VERSUS STATE OF ORISSA [1980 (9) TMI 268 - ORISSA HIGH COURT] where it was held that the dealer was liable to tax on sale of gunny bags as estimated by the assessing officer.
HELD THAT:- On perusal of the order of the ACST, the Court finds that the order is an elaborate one discussing in detail the fraud reports on the basis of which the enhancement was sought to be made. In particular, the ACST appears to have carefully analyzed the materials placed on record and found that explanation was available for at least 50% of the so called sale suppression. It is on that basis that the enhancement as ordered by the STO was reduced by almost 50%. The order of the ACST when read carefully does not give impression that it was done in a flippant manner or without discussing the evidence. On the contrary, the discussion is elaborate and involves very minute analysis of the entire evidence. The Court is therefore not able to concur with the Tribunal for reversing the order of the ACST and restoring the order of the STO as far as the enhancement of taxable turnover is concerned.
The Court is unable to sustain the reasoning of the Tribunal for restoring the order of the STO and reversing the order of the ACST. The question framed by this Court is answered in the negative by holding that the enhancement of turnover, in the absence of any material to establish that the goods found short have been sold, is neither lawful nor valid and is contrary to the law explained by the Court in Mahabir Rice Mills.
The question is accordingly answered in favour of the Assessee and against the Department - the revision petition is disposed off.
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2022 (3) TMI 1386 - CESTAT MUMBAI
Seeking for early hearing of appeal - HELD THAT:- On going through the averments made in the said application, it is opined that the prayer made in support of out of turn hearing merit consideration in the interest of justice. Accordingly, the early hearing application is allowed.
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2022 (3) TMI 1385 - GUJARAT HIGH COURT
Violation of principles of natural justice - legality and validity of the order passed in Form GST MOV-09, challenged essentially on the ground that the same has been passed without giving any opportunity of hearing - HELD THAT:- Issue Notice to the respondents, returnable on 6th April 2022. No notice now be issued by the Registry to the respondents as Mr. Sharma has already entered his appearance on their behalf.
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2022 (3) TMI 1384 - ITAT MUMBAI
Reopening of assessment u/s 147 - assessee was not carrying genuine business of trading in diamonds and was engaged only in providing accommodation entries - undisclosed commission income on protective basis - HELD THAT:- We find that this addition made by the A.O has been deleted by the ld. CIT(A) and revenue is not in appeal against the said deletion.
GP estimation - gross profit rate declared by the assessee in the year under consideration is too low i.e 1.19% as compared to the gross profit percentage declared by other such concern of the Shri Bhanwarlal Jain group - A.O adopted average gross profit rate of 11.5% and made addition for the difference in gross profit rate of 10.31% [11.5 (-) 1.19] - HELD THAT:- As assessee submitted that the Income-Tax authorities cannot blow hot and cold in the same breath. According to him if Income Tax Department has accepted the assessee as controlled and managed by Shri Bhanwarlal Jain for providing accommodation entries, then addition to compensate gross profit rate is not justified. The ld. D.R also could not controvert the fact that the assessee has been held a concern controlled by Shri Bhanwarlal Jain engaged only for providing accommodation entry bills. In our opinion such circumstances, the lower authorities are not justified in sustaining the addition to cover the low gross profit rate on the basis of books of account of the assessee which has not been accepted by the department and percentage commission has been assessed treating the purchase and sales recorded in books of accounts. Similarly commission income has also been estimated on the unsecured loan advanced by the assessee also. We have noted that in the case of Bhanwarlal Jain, the department has taken stand that accommodation entries have been provided through the assessee concern. The revenue has to take one stand and cannot treat the assessee simultaneously as accommodation entry provider as well as genuine concern engaged in trading of the diamond. In view of the above discussion, we set aside the finding of the ld. CIT(A) on the merit of the addition and direct the A.O to delete the addition - Since, we have already allowed the appeal of the assessee on merit the Ground No. 1 raised by the assessee challenging the legality/validity of reassessment proceedings has been rendered only academic, and therefore we are not adjudicating upon the same. The Ground is rendered infructous and therefore is dismissed.
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2022 (3) TMI 1383 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH, COURT-IV
Power/Jurisdiction of Tribunal to review/recall its own order - present proceeding have been initiated on fraudulent basis or not - HELD THAT:- In the present matter, the respondent had appeared on 04.02.2021 and thereafter, matter was adjourned for 25.03.2021. On that day the respondent was directed to file the reply within two weeks.
On 25.03.2021, no one has appeared on behalf of the Respondent/Corporate Debtor. Even, the reply was not filed. Accordingly, the right to file the reply was closed and the order was to be fixed for 17.09.2021. On the said date, the Ld. Counsel for the Corporate Debtor appeared and stated that the reply’ could not be filed as one of his office colleagues tested Covid19 positive and therefore, other colleagues including himself were quarantine. Though, no such record was placed on record, but even then, taking a lenient view, this Tribunal granted further 10 days time to file the reply. Despite that the reply was not filed on behalf of the respondent, even on the next date fixed i.e. 22.07.2021. Accordingly, the right to file the reply was closed. Hence, as per record sufficient opportunities were given to the respondent to file the reply, but the respondent kept on lingering the matter one pretext or other.
This Tribunal is vested with no powers to recall or review its own orders once the specific findings have been recorded though qua the procedural aspects - The NCLAT, New Delhi noted that there is no express provision for ‘review’ under the NCLAT Rules, and that the applicant/appellant cannot fall back upon Rule 11 of the NCLAT Rules, which provides for ‘inherent powers’. Hence this Tribunal has got no jurisdiction to review/recall its own order.
The present application being devoid of any merit stands dismissed.
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2022 (3) TMI 1382 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Right to file reply - prayer for modification of an order - Rule 11 of the NCLT, Rules - HELD THAT:- It is clear that Reply could not be been filed by the Corporate Debtor and the right to file Reply was closed on 10.12.2020 which was again reiterated on 14.01.2021. Subsequently along with the I.A. as above said, Copy of the Reply was annexed and request was made to take the Reply on record by modifying the Order dated 10.12.2020. Present is not the case where the Adjudicating Authority has exercised its power of review on merits of any issue decided by the Adjudicating Authority. Present is the case where with regard to the pleading i.e. accepting the Reply, inherent power has been exercised by the Adjudicating Authority under Rule 11 of the NCLT, Rules. The substantial justice has been done by the Adjudicating Authority in taking the Reply on record.
The present is not the case where this Tribunal should exercise its appellate power. The Appeal is dismissed.
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2022 (3) TMI 1381 - CALCUTTA HIGH COURT
Blocking of Input Tax Credit - HELD THAT:- There is no scope of passing any interim order in the matter at this stage since the impugned order of blocking of ITC of the petitioners, prima facie appears to me not illegal or without jurisdiction and for final adjudication on the issues involve in this writ petition, it requires affidavit from the respondents.
List this matter for final hearing after seven weeks.
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2022 (3) TMI 1380 - ITAT MUMBAI
Deemed dividend u/s 2(22)(e) - additional evidence pertains to the said transaction which according to the Ld. AR is a business transaction was not accepted by the Ld. CIT(A) - HELD THAT:- Though in the present case, the additional evidence was available with the assessee he was prevented by adducing the same due to wrong interpretation of the provision. We are of the considered opinion that the assessee may be given an opportunity to be heard before the Ld. CIT(A) and the Ld. CIT(A) is directed to consider the additional evidence and adjudicate the matter in the light of those evidences produced by complying with the procedures enumerated in Rule 46(A)(3) of the Income Tax Rules 1962. Since the second ground of appeal has to be adjudicated afresh based on the additional evidence before the Ld. CIT(A), it becomes infructuous. The matter is remanded back to the Ld. CIT(A) with the above observation. Appeal filed by the assessee is allowed for statistical purposes.
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2022 (3) TMI 1379 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Recovery of dues under IBC - Section 52(4) of the IBC - HELD THAT:- The applicant had an option to recover its dues u/s. 52(4) of the IBC. Once that option is foregone and the charge on the secured assets is relinquished by the secured creditor, the secured creditor cannot once again seek priority payment to the secured first charge creditor. There is no infirmity in the distribution of the assets by the Liquidator.
Application dismissed.
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