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Showing 201 to 220 of 1439 Records
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2015 (7) TMI 1245
Scheme of amalgamation - Held that:- This court dispensed with the requirement of convening and holding of meeting of the equity shareholders, as well as secured and unsecured creditors of the petitioner company, who had given their consent to the proposed scheme. The requirement of the law to the present stage has been complied with. Thus Petition is admitted.
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2015 (7) TMI 1244
Sanction of a Scheme of Amalgamation - Held that:- Having considered the submissions made in this regard and being satisfied that amalgamation under the proposed scheme would be in the interest of the companies and their members and creditors, the Scheme is hereby sanctioned. Prayers in terms of paragraph 16 (a) of the Company Petition No. 144 of 2015 and 15 (a) of the Company Petition No. 145 of 2015 are hereby granted.
The petitions are disposed of accordingly. So far as the costs to be paid to the Central Government Standing Counsel are concerned, the same are quantified at ₹ 7,500/-per petition. The same may be paid to the counsel appearing for the Central Government Cost of ₹ 7,500/- be paid to the Office of the Official Liquidator towards cost for the Transferor Company.
The petitioner companies are further directed to lodge a copy of this order, the schedules of immovable assets of the Transferor Company as on the date of this order and the Scheme duly authenticated by the Registrar, High Court of Gujarat, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order.
The petitioner companies are directed to file a copy of this order along with a copy of the scheme with the concerned Registrar of Companies, electronically, along with INC-28 in addition to physical copy as per relevant provisions of the Act.
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2015 (7) TMI 1243
Valuation - physician samples manufactured, cleared on payment of duty of excise on the basis of the contracted value - Revenue entertained a view that appellant has to pay duty on the pro-rata basis corresponding to the value of the regular packs - Held that: - where such physician samples are not being manufactured by the regular pack manufacturer, the same are required to be assessed to duty on the transaction value/contracted value in terms of the purchase orders - issue has been settled in the case of M/s GELNOVA LABORATORIES (I) PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE [2014 (2) TMI 581 - CESTAT MUMBAI], where it was held that physician samples manufactured on principal to principal basis are required to be assessed under Section 4(1)(a) of the Central Excise Act - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1242
Scheme of amalgamation - Held that:- Taking note of aforesaid facts and supporting documents on record duly supplied by the applicant and considering the material on record especially the consent letters of shareholders of transferor/ transferee companies and certificates issued by the Chartered Accountant certifying number of creditors (secured/ unsecured) of the transferor and transferee companies as also the proposed scheme of amalgamation, this court considers it appropriate to dispense with the meetings of shareholders and unsecured creditors of the transferor company No.2 (Divine Heritage Hotels Private Limited) for considering scheme of amalgamation with the transferee company (Mahindra Holidays & Resorts India Limited). Instant application stands allowed.
Consequently, holding of meeting of shareholders and unsecured creditors of applicant transferor company No.2 (Divine Heritage Hotels Private Limited) is dispensed with.
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2015 (7) TMI 1241
ALV determination - annual value of the property was determined by the AO on the basis of rent received and notional interest on the interest free security received from the tenant - Held that:- As in the own case of the assessee for earlier assessment year held that the municipal value should be taken as ALV without deduction of any municipal taxes which were borne by the tenant.
Disallowance under section 14A r.w. rule 8D - Held that:- CIT(A) has rightly restricted the disallowance to ₹ 4,77,399/- as the disallowance can not exceed the total expenses claimed in the Profit and Loss Account by the assessee and thus we find no infirmity in the order of CIT(A) and therefore the ground no 2 is dismissed.
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2015 (7) TMI 1240
Refund claim - service tax paid during the pre-registration period - Held that: - registration is not compulsary for refund - appellant is entitled to the Cenvat credit of the services availed prior to registration and entitled to the refund thereof in view of no taxability due to export of services - refund allowed.
Refund claim - non-establishment of nexus between input service and output service - Held that: - Record reveals that there is no evidence placed before the Adjudicating authority to consider nor any justification was shown by him. Therefore, this aspect is remanded to Adjudicating authority to examine the evidence - appeal allowed by way of remand.
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2015 (7) TMI 1239
Claim of deduction u/s 80P - whether CIT (A) erred in directing to allow deduction u/s 80P to the assessee even though assessee carries on the banking business and other business in the name of a credit cooperative society? - Held that:- We find the judgment of the Hon’ble Bombay High Court in the case of Quepem Urband Cooperative Credit Society Ltd (2015 (6) TMI 573 - BOMBAY HIGH COURT ) is relevant for the following proposition:
‘Where assessee-cooperative society could not be regarded as ‘Co-operative Bank’ on, mere fact that an insignificant proposition of revenue was coming from non-members, and thus, was entitled for deduction under section 80P(2)(a)(i) of the Act.’ - Decided against revenue
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2015 (7) TMI 1238
Punishment of dismissal of the respondent from the service - validity of Dismissal order passed by the competent authority - law relating to "Ratification" - Held that:- Keeping in mind the contents of the Resolutions, it is difficult to agree with the view taken by the High Court that the BOG did not pass the dismissal order but it was passed by the Principal & Secretary. In other words, keeping in view the contents of the four Resolutions, we have no hesitation to hold that the dismissal order dated 16.08.1996 was passed by the BOG and the Principal & Secretary only signed the order for and on behalf of the BOG on the strength of authorization made in his favour by the BOG vide Resolution dated 11.03.1996.
Applying the law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondent's dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.
In such circumstances, the respondent's grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived.
We differ with the view taken by the High Court and accordingly hold that the dismissal order dated 16.08.1996 was passed by the Competent Authority, namely, the BOG as prescribed in the Rules and hence it was legal and proper. It is accordingly upheld.
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2015 (7) TMI 1237
Clearances by 100% EOU to DTA - CENVAT credit - Section 3(1) of the Central Excise Act, 1944 - Held that: - issue covered by the decision in the case of M/s. Gopala Polyplast Limited Versus Commissioner of Central Excise & ST., Ahmedabad [2014 (11) TMI 30 - CESTAT AHMEDABAD], where it was held that If the view put forth by the Revenue is accepted than under proviso to Section 3(1) no duty more than the duty of excise leviable under the First Schedule to Central Excise Act can be recovered from a 100% EOU - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1235
Expenditure on creation of new cabins in business center - revenue in nature OR capital in nature - Held that:- The issue is squarely covered in favour of the assessee by the finding of the Tribunal in the own case of the assessee for A.Y. 2007-08 the expenditure incurred by the assessee for maintaining furniture, fixtures etc. for running the business center were Revenue in nature and thus allowable has been upheld by the Hon’ble Bombay High Court. Thus, the issue is now squarely covered by the decision of the Hon’ble Bombay High Court in the own case of the assessee. Thus, the claim of the expenditure by the assessee on this issue for A.Y. 2005-06, 2006-07 & 2010-11 is accordingly allowed.
Disallowance of prior period expenses - AO disallowed an amount claimed as business promotion expenses on the ground that the same pertained to the period prior to the assessment year under consideration - Held that:- CIT(A) correctly relying upon the decision of the ITAT Delhi Bench in the case of “Goetze India Ltd. vs. CIT” [2007 (7) TMI 341 - ITAT DELHI-C] held that since the quantum of actual liability was crystallized during the year under consideration, hence the expenditure was allowable during the current year. He, therefore, deleted the disallowance. - Decided in favour of assessee
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2015 (7) TMI 1234
Penalty u/s 272A(2)(c) - validity of notice issue u/s 133 (6) - non complying with the requirement of the notice u/s 133 (6) but was not issued by the Assessing Officer or the DCIT(A) or Jt.CIT or CIT(A) - reasonable cause for the failure of the assessee to submit the report - Held that:- Since, the notice was issued by the ITO, it has to be seen that whether he is an assessing officer or not as per section 2 (7A) of the I. T. Act. As per this section, an ITO is also an assessing officer if he is vested with the relevant jurisdiction by virtue of directions or orders issued under sub section (1) or sub section (2) of section 120 or any other provisions of this Act. Hence, it has to be seen that whether in the present case, the ITO who issued the impugned notice was assessing officer or not as per these provisions of section 2 (7A) of the Act. Since, there is no finding of CIT (A) in this regard, the matter has to go back to CIT (A) for fresh decision after giving specific finding on this aspect of the matter if we find that the penalty is otherwise justified because if the penalty is not found to be justified for other reasons, this aspect will be of academic interest only and hence, no decision on this aspect will be necessary and therefore, in that situation, we will not restore the matter back to CIT (A).
As submitted by the assessee that due to failure of the computer server of the branch of the assessee, the required report could not be submitted in time. In our considered opinion, it should be accepted as reasonable cause for the failure of the assessee to file report in time. As per section 273B, if the assessee can establish that there was reasonable cause for the failure of the assessee to submit the report, penalty u/s 272A (2) should not be imposed. Therefore, we delete the penalty because in our considered opinion, there was reasonable cause for the failure of the assessee to submit the report in time. - Decided in favour of assessee.
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2015 (7) TMI 1233
Assessment of income - income earned on sale/redemption of investment - chargeability to tax - Held that:- Following question is framed for determination:
“Whether the ITAT was correct in law in holding that the income earned on sale/redemption of investment is chargeable to tax?”
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2015 (7) TMI 1232
Revival upon the company's name being struck off - application of a person who did not qualify under sub-section (6) of the relevant provision and without notice to the others who may have been interested in the company - Held that:- As to the company's contention that the present application has been filed with ulterior motive, it does not matter if the applicant is guided by some other motive once it is demonstrated that the applicant had an interest in the matter pertaining to the order which is sought to be recalled and the applicant had no notice of the proceedings at the relevant point of time.
Since it was the company which had applied to have its name struck off under the relevant scheme, the company could not have applied under Section 560(6) of the Act unless such application was made within a short time of its name being struck off and an obvious mistake on the part of the company to apply under the scheme was demonstrated. Though the company seeks to assert that the word "company" in Section 560(6) of the Act has to be given a wider meaning, it is not possible to accept that a company whose name had been struck off on its invitation six or seven years back would be permitted to apply under such provision for the striking-off to be undone. In such a situation, it would be only a creditor or a shareholder of the company who may apply within 20 years of the company's name being struck off for its revival. In any event, the petition under Section 560(6) of the Act was not filed by the company.
Since neither a shareholder nor a creditor of the company applied for its revival upon the company's name being struck off on the company's application, and a shareholder of the company is in Court today seeking the order of revival to be recalled, no ground is made out to resist the same.
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2015 (7) TMI 1231
Interest income considered as income from other sources - interest on FDRs - claim of the assessee that the impugned interest income is a capital receipt which is permissible to be set-off against the capital work-in-progress - Held that:- It is quite apparent that the funds deployed in FDRs are tied up funds and not surplus funds. Rather, in my considered opinion, the impugned funds are inextricably linked to the development and construction of assessee’s project of integrated market complex at White Field, Bangalore. In the background of the aforesaid factual position, in my view, the income on FDRs is required to be capitalized to be reducd from the capital work-in-progress, and is fully covered by the ratio of the judgment of the Hon'ble Supreme Court in the case of CIT v/s Bokaro Steel Ltd., [1998 (12) TMI 4 - SUPREME Court], and not by the judgment of Hon'ble Supreme Court in Tuticorin Alkali Chemicals & Fertilisers Ltd. (1997 (7) TMI 4 - SUPREME Court a), as contended by the Revenue.
Thus conclude by holding that the assessee has rightly reduced the said interest income from the capital work-in-progress, because the funds deployed are only for an ultra short period which in inextricably linked with the project. Hence, set aside the impugned order passed by the learned Commissioner (Appeals) and hold that the addition needs to be deleted. - Decided in favour of assessee.
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2015 (7) TMI 1230
Addition on loans - non adherence to personal presence of the creditors - loans are through banking channel - creditors had died before completion of reassessment proceedings - Held that:- No hesitation to hold that the assessee discharge his onus establishing genuineness of the transaction and creditworthiness of the respective creditors and the Assessing Officer only stressed upon the personal presence of the creditors who had died before completion of reassessment proceeding. The AO and the CIT(A) have not undertaken any verification or examination from the assessment records of the respective creditors as per details and documentary evidence submitted by the assessee in the confirmation in the form of PAN number and assessment ward details. In this situation, addition u/s 68 of the Act cannot be made without demolishing the explanation and affidavit submitted by the assessee and without discharging the onus which was shifted by the AO after submission of explanation and all relevant documents by the assessee.
Thus we hold that the addition made by the AO and upheld by the CIT(A) during the second round of proceeding cannot be held as sustainable and in accordance with letters and sprit of Section 68 of the Act specially when the assessee has shown by substantial evidence that the loans have been returned to the respective creditors then the addition u/s 68 of the Act cannot be held as correct and justified. Accordingly sole ground of the assessee is allowed.
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2015 (7) TMI 1229
Maintainability of appeal - case of Revenue is that the appeal is not maintainable insofar as it relates to determination of question having relation to rate of duty - Held that: - the disputes that fall within the jurisdiction of the High Court, as culled out by the Karnataka High Court in its decision in CCE., MANGALORE Versus MANGALORE REFINERIES & PETROCHEMICALS LTD. [2010 (9) TMI 756 - KARNATAKA HIGH COURT] in mind, a look at the facts of the case clearly establish that the issue pertains to rate of duty that is payable by the respondent. In such a scenario, in view of the above position of law, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent is liable to be sustained in view of the decision of the Supreme Court in Navin Chemicals [1993 (9) TMI 107 - SUPREME COURT OF INDIA] - while this Court is not inclined to deal with the matter, while disposing off the present appeal as not maintainable, is inclined to grant liberty to the appellant/assessee to pursue the matter before the Supreme Court, if so advised.
Appeal dismissed with liberty granted to the appellant/assessee to move before the Supreme Court.
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2015 (7) TMI 1228
CENVAT credit - duty paying documents - denial on the ground that photocopy of the courier Bill of Entry is not a proper document in terms of Rule 9 of the Cenvat Credit Rules, 2004 - Held that: - Since, the Courier Bill of Entry has been issued by the courier agency in favour of various parties/consignees, there was no scope for issuing the original invoice in favour of each and every party - since those photocopies of the courier bill of entry issued in favor of the consignees are duly authenticated by the authorities posted at the port of import, the authenticity of the said documents cannot be doubted and credit cannot be denied for the reason that the same is not a prescribed document for availment of Cenvat credit - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1227
Stay of Pre-deposit - non-compliance - Held that: - the compliance was to be reported on 02/02/2015 and various adjournments were given on this ground only as to that the appeals are pending before the Hon’ble High Court. No stay order has been produced before us staying the operation of our order directing the appellants to deposit the amount - since there is no compliance with our stay order, we dismiss the appeal for non-compliance.
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2015 (7) TMI 1226
Order of reinvestigation - whether the learned Chief Judicial Magistrate could have directed for reinvestigation? - whether it could have directed for reinvestigation by another investigating agency? - Held that:- A Magistrate can disagree with the police report and take cognizance and issue process and summons to the accused. Thus, the Magistrate has the jurisdiction to ignore the opinion expressed by the investigating officer and independently apply his mind to the facts that have emerged from the investigation.
Having stated thus, we may presently proceed to deal with the facet of law where the Magistrate disagrees with the report and on applying his independent mind feels there has to be a further investigation and under that circumstance what he is precisely required to do.
High Court has fallen into error in its appreciation of the order passed by the learned Chief Judicial Magistrate. It has to be construed in the light of the eventual direction. The order, in fact, as we perceive, presents that the learned Chief Judicial Magistrate was really inclined to direct further investigation but because he had chosen another agency, he has used the word “reinvestigation”
As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such investigation shall be supervised by the concerned Superintendent of Police. After the further investigation, the report shall be submitted before the learned Chief Judicial Magistrate who shall deal with the same in accordance with law. We may hasten to add that we have not expressed any opinion relating to any of the factual aspects of the case.
Thus the order passed by the High Court is set aside except where it has held that the learned Magistrate could not have allowed another agency to investigate. We have clarified the position in the preceding paragraph.
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2015 (7) TMI 1225
Disallowance for excess purchase - difference in comparison to purchase reflected in Profit & Loss account entered in the C.P.U. found and impounded during the course of survey u/s 133A - Held that:- What the first appellate authority ought to have caused, proving or validating his inference of the purchase as reflected being a subset of that disclosed subsequently. Though the Revenue has 'disallowed' purchases, what it in effect has is to consider the assessee's trading results as deflated to that extent. As shall be apparent, no definite finding, one way or the other, can be issued in the absence of the sales figure up to 03.03.2008. And, two, in the event of the two trading results being not in agreement, the absence of the assessee's explanation, if any, toward the same, so as to be considered for being satisfactory, cogent, etc. on merits, or not so.
We, accordingly, restore the matter back to the file of the A.O. to allow the assessee an opportunity to explain the difference, with reference to its accounts, between the gross profit obtaining up to the date of survey, covering a period of little over 11 months of the year, with that disclosed for the entire year and, thus, having not deflated the latter to any extent. - Decided in favour of assessee by way of remand.
Addition u/s 68 - Held that:- The assessee has clearly not discharged the onus on it u/s. 68 toward satisfactorily proving the credit. Rather, on the contrary, it is apparent that the assessee's books of account were not complete, as found during survey, a finding as to which has been given by the first appellate authority and confirmed by us, holding that the same would not by itself lead to the conclusion of the same being correct. Sales, and even purchases, have not been fully recorded. Cash in hand as on 28.02.2008, as per the impugned books, is at (-) ₹ 52,60,066.the impugned cash credits, stated to be unsecured loans, do not appear in these accounts, completely discrediting the assessee's claim in its regard. If cash was required for business purposes, why was the same not recorded in the books? - Decided against assessee.
Unexplained investment u/s.69 - documents/loose sheets were found, inventories and impounded during survey - Held that:- The loose sheets/documents are not on record. If, as stated, these are dumb documents, not representing actual transactions, as contended by the assessee, no case for addition is made out. Though the onus to exhibit so is on the assessee; it claiming the same to be dumb documents, the Revenue, in our view, has not discharged the primary onus to show that the same represented information from which a reasonable inference as to their representing 'transactions' could be drawn. As aforestated, as much as even the relevant documents are not on record. The assessee, on its part, has explained the transactions on most of the sheets. No addition, under the circumstances, is called for, and we decline interference. - Decided in favour of assessee.
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