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Showing 201 to 220 of 1569 Records
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2023 (7) TMI 1370
Maintainability of SLP - Availability of statutory remedy - HELD THAT:- The factual debate must take place before the NCLAT on the application of the law and then would it be only appropriate for this Court to apply its mind against the order of the NCLAT which is also a statutory remedy.
The correct approach would not be to directly entertain the special leave petitions against the orders of the NCLT - appeal dismissed.
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2023 (7) TMI 1369
Entitlement to foreign tax credit - required Form No. 67 is not filed in accordance with the provision of rule 128(9) - violation of procedural mandate - HELD THAT:- It is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory.
Admittedly, Rule 128 does not prescribe denial of credit of FTC. Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of such declaration on or before due date of filing of ROI. Further rule 128 (4) clearly provides the condition where the foreign tax credit would not be allowed. Rule 128 (9) does not say that if prescribed form would not be filed on or before the due date of filing of the return no such credit would be allowed.
By the amendment to the rule with effect from 1 April 2022, the assessee can file such form number 67 on or before the end of the assessment year. Therefore, legislature in its own wisdom has extended such date which is beyond the due date of filing of the return of income.
The fact in the present case is quite distinct then the issue involved in the decision of the honourable Supreme Court in case of Wipro Ltd [2022 (7) TMI 560 - SUPREME COURT] Here it is not the case of violation of any of the provisions of the act but of the rule, which does not provide for any consequence, if not complied with.
Therefore, we hold the assessee is eligible for foreign tax credit, as he has filed in form 67 before completion of the assessment.
We hold that the claim of foreign tax credit cannot be denied and we direct the AO to allow the FTC based upon the belated form No. 67 filed by the assessee accordingly. Appeal of the assessee is allowed.
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2023 (7) TMI 1368
Jurisdiction to entertain petition - Prayer for stay of the summoning of the petitioners, its Officers, Representatives and Managers by the Officers of Respondent Nos.2 - HELD THAT:- The objection taken by Respondent No.4 regarding jurisdiction to entertain the writ petition is ill founded inasmuch as the registration of the E.C.I.R. is consequent to the registration of the F.I.R. dated 15.04.2023 at Greater Noida, U.P. which is very much within the territorial jurisdiction of this Court. Based on the ratio laid down by the Apex Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT], the objection of Respondent No.4 to the territorial jurisdiction of this Court does not merit consideration and is, accordingly, overruled.
It is found that ex-facie the dispute is of civil in nature and has been given a colour of criminal nature. It is also found that Respondent No. 3, YEIDA has not made any attempt to institute civil proceedings against Petitioner No.2, except by lodging the present F.I.R. This action appears to be mala fide and unsustainable.
The petitioners have made out a case for grant of the interim as relief prayed for - List the case in the week commencing 28 August, 2023.
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2023 (7) TMI 1367
Initiation of mala fide criminal proceedings against financial institutions/lenders and their officers, representatives and managers, to somehow restrain them from pursuing recovery proceedings of their enforceable debts, and/or to compel them to make settlement of their dues - HELD THAT:- It is not deemed appropriate to permit the petitioners to approach the respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the respective High Courts to consider and decide the petitions expeditiously, not later than six months of their presentation.
All the petitions including contempt petition and pending applications, stand disposed of.
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2023 (7) TMI 1366
Contest to the grant of anticipatory bail to Respondent No. 2 - Forging documents for transferring ownership of land - appellant contended that the High Court acted on the erroneous assumption that the alleged 1996 GPA in favor of Respondent No. 2 is genuine - HELD THAT:- It goes without saying that the alleged offences of forging documents for transferring ownership of land worth crores of rupees are grave in nature. Hence, while it is extremely important to protect the personal liberty of a person, it is equally incumbent upon us to analyze the seriousness of the offence and determine if there is a need for custodial interrogation.
The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.
The 2nd Respondent has so far not been able to show payment of any consideration to the Appellants in the year 1996. The original GPA, as we have noted on multiple occasions, is conspicuous by its absence. A certified copy of this GPA is said to have been relied upon to execute the disputed sale deed. It is difficult to understand or comprehend as to how a bona fide purchaser could pay crores of rupees as sale consideration to a person who neither possesses documents showing ownership and title nor has original GPA of the true owner(s) of the property being sold. The fact that the sale deed was allegedly executed without mentioning the PAN Number or without deducting TDS, underlines the dubious nature of this transaction.
It is immaterial that the genuineness of the 1996 GPA is already sub-judice before the Civil Court in the civil suits pending between the parties. The Appellants, owing to their age and residential status, cannot be expected to await indefinitely for the outcome of these civil proceedings. Regardless, the pendency of these cases does not estop the issues of forgery and fabrication being considered in the course of criminal investigation - In the peculiar facts and circumstances of this case, custodial interrogation of not only Respondent No. 2 but all other suspects is, therefore, imperative to unearth the truth. Joining the investigation with a protective umbrella provided by pre-arrest bail will render the exercise of eliciting the truth ineffective in such like case.
The impugned order dated 31st May, 2022 passed by the High Court granting pre-arrest bail to Respondent No. 2 is hereby set aside - Appeal allowed.
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2023 (7) TMI 1365
Power of Tribunal to review the judgment versus Power to re-call its order - Larger Bench (5 Members) decision - power to entertain an application for recall of judgment on sufficient grounds - It was held by Principal Bench that This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds - HELD THAT:- The view taken by the Five Judges Bench of the NCLAT not agreed upon and thus there are no reason to interfere with the impugned judgment.
Insofar as the endeavour of learned counsel for the appellant to urge on the facts of the case is concerned, that would be a matter to be considered, dependent on the fate when the matter is placed before the appropriate Bench, to be decided on merits.
Appeal dismissed.
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2023 (7) TMI 1364
Seeking condonation of delay of 12 days in filing of this Appeal - sufficient reasons for delay or not - Applicant/Appellant has submitted that the Appellant was not a party to the Interlocutory Application and was not having any knowledge about the Order - HELD THAT:- Section 61(1) provides that any person who is aggrieved against the Order of the Adjudicating Authority can prefer an Appeal before the Appellate Authority - Section 61(2) lays down the period within which the Appeal under Section 61(1) is to be filed. The said period has been fixed as 30 days. However, Section 61(2) proviso further provides for extension of time beyond the period of 30 days upto 15 days but not beyond that. In case the Applicant, filing the Appeal, alongwith Application of Condonation of Delay, is able to satisfy the Appellate Authority that there exists a sufficient cause for not filing the Appeal within the prescribed time then it can be entertained.
It is pertinent to mention that the Hon'ble Supreme Court in the case of National Spot Exchange Limited Vs. Mr. Anil Kohli, Resolution Professional for Dunar Foods Limited [2021 (9) TMI 1156 - SUPREME COURT], dealing with this aspect of the matter that as to whether the Appellate Authority has the jurisdiction to condone the delay beyond the period of 15 days provided in the proviso to Section 61(2) of the Code held that there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.
No explanation has been given anywhere in the Application for not filing the Appeal within the time prescribed under the Statute. It is rather the case of the Appellant that the Appeal has been filed only 3 days before the expiry of the extended period of 15 days without giving any further explanation about the laxity on the part of the Appellant in not filing the Appeal - It is pertinent to mention that the Legislator has consciously provided a period of 30 days for the purpose of filing an Appeal and has provided only 15 days window to the Appellate Authority to entertain an Appeal by condoning the delay beyond the period of 30 days if it is satisfied about the existence of a sufficient cause assigned by the Appellant for not approaching the Appellate Authority within the time prescribed.
In the case of National Spot Exchange Limited, the Hon'ble Supreme Court has categorically held that the Appellate Authority does not have the jurisdiction to extend even a day beyond the extended period of 15 days. In such circumstances, the Appellant should have been vigilant enough to have filed its Appeal firstly within a period of 30 days which has been given to it by the Statute and if it could not have filed the Appeal within that period, then there should have been some justifiable reason much less sufficient cause for the purposes of satisfying the Appellate Authority for not filing the Appeal in time. The sufficient cause is just conspicuous by its absence in the Application in question and also during the course of hearing in the arguments of the Counsel for the Appellant.
The Appellant has been pursuing this Litigation very casually and has failed to make out a case for the purpose of condonation of delay - the Application is thus found to be devoid of any merits and the same is hereby dismissed.
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2023 (7) TMI 1363
Maintainability of application filed u/s 9 of the IBC, 2016 - Condonation of delay in filing appeal - sufficient cause for delay or not - HELD THAT:- Any person, who is aggrieved by an order of the Adjudicating Authority, has a right to appeal but for that purpose a period of 30 days has been prescribed. In case, the Appellant fails to file the appeal within the period of 30 days due to some reasons which is justifiable or constitute a sufficient cause, the appeal still can be filed within a period of 15 days but it cannot be extended any further beyond the period of 15 days in view of the Judgment of the Hon'ble Supreme Court in the case of National Spot Exchange Limited [2021 (9) TMI 1156 - SUPREME COURT].
The Appellant has given a lame excuse for not filing the appeal in time (30 days) on the ground that the person who had to file the appeal is 74 years of age but it is nowhere mentioned in the application much less the affidavit attached that he was infirm and incapable of engaging the counsel for the purpose of filing the appeal. It appears that there has been a totally causal approach of the Appellant in coming to this Court in appeal beyond the period of 30 days and without any sufficient cause.
There is hardly any merit in this application which requires consideration and interference, consequently, the application is found devoid of any merit and the same is hereby dismissed.
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2023 (7) TMI 1362
Seeking Condonation of Delay of 43 days in filing of the present Appeal - Sufficient cause for delay or not - HELD THAT:- In case of expiry of the statutory period of the 45 days, proviso to Section 421(3), further provides a period of 45 days for a litigant to file the Appeal after showing sufficient cause for not approaching the Court within the statutory period provided under Section 421(1) and can maintain the Appeal provided it is proved that he could not approach the Court within a prescribed time due to a sufficient cause.
Hence, the sufficient cause is a Sine-Qua-Non for the purpose of entertaining an Application and granting Condonation of Delay in such cases - On considering the arguments of the Counsel for the Appellant and after perusal of the averments made in the Application, the considered opinion is that the reason given in the Application do not constitute sufficient cause because the Appellant had been seeking under unnecessary beliefs.
The present Application is hereby dismissed.
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2023 (7) TMI 1361
Levy of penalty under Section 114(i) of Customs Act - Smuggling - Red Sanders - vague SCN - HELD THAT:- It is apparent that even show cause notice does not allege any active knowledge of the appellants nor does it point to any act or omission on the part of these appellants - A plain reading of Section 114(i) of Customs Act, 1962 clearly implies that there has to be active knowledge or any act or omission before penalty under Section 114(i) can be imposed.
There are no merit in the impugned order in so far as it relates to imposition of penalty on these appellants. The appeals are allowed.
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2023 (7) TMI 1360
Reopening of assessment u/s 147 - As respondents has brought to the notice of the Court a Division Bench judgment of this Court in M/s Chetak Enterprises Limited [2023 (5) TMI 165 - RAJASTHAN HIGH COURT] which decides the issue with regard to the notice issued under Section 148 of the Income Tax Act, 1961.
Learned counsel for the petitioner may go through the said judgment and put-forth his submissions.
The case is adjourned to 27th July, 2023, as prayed for.
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2023 (7) TMI 1359
Seeking grant of Regular bail - commission of offences under Section 498A, 323/504/506 of the Indian Penal Code, 1860 (IPC) and Section 3 & 4 of the Dowry Prohibition Act - procedural requirements of Section 41A of the CrPC followed or not - HELD THAT:- The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations. During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s presence and participation in the trial. The court must, in every case, be guided by these overarching principles.
In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts - firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC.
Once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside.
The appellant is directed to be enlarged on bail subject to such terms and conditions that the Trial Court may impose - Appeal allowed.
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2023 (7) TMI 1358
Seizure of imported “Gold Dore” bars - notification of 13 August 2008 which dealt with the import of Gold Dore bars and other articles from “least developed countries” - HELD THAT:- It is not the case of the petitioner that it had, at any time, approached the respondents to seek amendment of the conditions which stood added to the import permission. In view of the aforesaid, it would be impermissible for the petitioner to now contend that the notifications of 2012 and 2017 would not be applicable. In view of the aforesaid, the submission of the petitioner being entitled to import Gold Dore bars solely on the basis of the notification of 2008 cannot be sustained.
The record bears out that the petitioner has additionally and upon payment of the entire customs duty under protest also moved an appropriate application to the second respondent for provisional release of the goods. In view of the fact that the duty element and liability has been duly taken care of, it is left open to the petitioner to pursue that application and only observe that any application for provisional release which may be pending consideration before the second respondent shall be taken up for consideration and disposed of expeditiously and preferably within a period of three weeks from today. All contentions of respective parties, on merits, otherwise are kept open.
Petition disposed off.
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2023 (7) TMI 1357
Disallowance of expenditure u/s 14A r.w.r. 8D - as per assessee no disallowance of interest expenditure u/r 8D(2)(ii) can be made, as the assessee had sufficient interest free fund available by way of reserves and surplus to take care of the investment made in assets yielding exempt income - HELD THAT:- As there are no current investments in the impugned assessment years. All the investments have been carried over from earlier assessment years. It is further noticed, the assessee had sufficient interest free funds available with it by way of share capital, reserves and surplus. That being the factual position emerging on record, we hold that no disallowance of interest expenditure can be made under rule 8D(2)(ii). Hence, we direct the Assessing Officer to delete the disallowance made under Rule 8D(2)(ii) for both the assessment years under appeal.
As regards the disallowance made under Rule 8D(2)(iii), respectfully following the ratio laid down in Vireet Investments (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] we direct the Assessing Officer to consider only those investments which have yielded exempt income during the relevant assessment years for computing average value of investments. Grounds are partly allowed.
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2023 (7) TMI 1356
Demand of illegal gratification by the accused - HELD THAT:- In the case on hand the prosecution failed to provide cogent evidence to prove the demand of illegal gratification by the appellant herein since the complainant-PW.2 turned hostile and PW.1 and PW.3, being the hearsay witness, they deposed that PW.2 only informed them and the police about the demand and acceptance of the bribe by the accused. When the complainant himself turned hostile, then evidentiary value cannot be attached to the evidence of PW.1 and PW.3 and moreover, the audio clip in respect of the demand is not clearly admitted by the Investigation Officer-PW.5 so also the witness PW.3.
The Hon'ble Apex Court in NEERAJ DUTTA VERSUS STATE (GOVT. OF N.C.T. OF DELHI) [2022 (12) TMI 1490 - SUPREME COURT]] held that "absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence and the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved.
In the instant case on hand, since the complainant himself disowned his statement and totally given go by to the prosecution case and also there is a cloud in the evidence of PW.1 and PW.3, in such eventuality, the benefit of doubt should be extended to accused - the failure of prosecution to prove the demand of illegal gratification would be fatal and mere recovery of the amount from the person of the accused of the offence under Sections 7 or 13 of the Act would not entail his conviction there under. In the instant case, the amount of Rs. 4,500/-recovered is not from the person of the accused, but from the table drawer of the accused. When PW.1-the complainant himself categorically denied the aspect of demand and acceptance of the bribe and the audio clipping was also not clear, in such circumstances, inference cannot be drawn against the accused.
The prosecution failed to prove the guilt of accused in this case beyond reasonable doubt - the prosecution failed to prove the guilt of accused beyond reasonable doubt. Accordingly the conviction held against accused by the trial Court is liable 8 to be set-aside.
Appeal allowed.
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2023 (7) TMI 1355
Standard Operative Procedure - Shorter period given to reply - Breach of principles of natural justice - notice issued u/s 142(1) and the show-cause notice were not sent to the correct e-mail address of the petitioner - petitioner was granted time lesser time to file a response to the show-cause notice - HELD THAT:- Without getting bogged-down by the factual assertion made by the petitioner that the aforementioned notices were not directed to the correct e-mail address, we are inclined to set aside the assessment order on the ground that the show cause notice dated 12.05.2023 did not accord a minimum of seven (7) days to the petitioner to file a response.
It is ordered accordingly. The assessment order is set aside. The petitioner is given leave to file response(s) to the notice issued under Section 142(1) and the show-cause notice within the next two (2) weeks. To facilitate the filing of replies by the petitioner, the AO is directed to open the portal.
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2023 (7) TMI 1354
Revision u/s 263 - Inadequate or non enquiry - unsecured loan - CIT noted that a perusal of the assessment record shows that the AO has not made any independent inquiry regarding the confirmations - HELD THAT:- We note that the AO has made an inquiry and has obtained the bank statement of the party and necessary confirmation. In response to queries raised, in the course of the assessment proceedings, the Assessee had filed all material particulars. CIT has thus acted casually.
Therefore, exercise of supervisory jurisdiction is wholly unjustifiable on the issue without making reference to circumstances which warrants necessity of some more enquiries. AO in the instant case, has made enquiries albeit not probably in the manner in which the CIT would have liked but this cannot be the sacrosanct ground for assumption of jurisdiction u/s 263 of the Act.
Under these circumstances, one cannot possibly say that AO had sleepwalked on the issues involved. Noticeably, the Ld. CIT himself has not entered into any minimal inquiry on the issues himself, if so considered expedient and there is not even prima facie demonstration of fallacy in the action of the Assessing Officer which rendered the order erroneous and which also simultaneously caused prejudice to the revenue.
Merely because the expectations of the Revisional Commissioner are purportedly not met, it should not, in our opinion, necessarily trigger revisional action under Section 263 of the Act in every case. CIT has also invoked provisions of section 263 including explanation 2(a) which is effective from 01.06.2015 and it cannot be applied in the current assessment year. Hence, the Ld. CIT’s reference to explanation 2(a) does not support the case of the Revenue. This is not a case of non-inquiry, the AO has made inquiry, thus we find that the ld. CIT’s order cannot be sustained - Decided in favour of assessee.
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2023 (7) TMI 1353
Reopening of assessment u/s 147 - objection to the notice u/s 148A(b) of the Act was not properly considered and discussed in the order u/s 148A(d) - scope of old act - new regime u/s 148A - HELD THAT:- It appears from the submission of Appellant that petitioner is not satisfied with the reasonings and findings recorded by the assessing officer in the impugned assessment order which according to him is not sufficient. Appellant has relied on a judgment in the case of “SABH Infrastructure Ltd. [2017 (9) TMI 1589 - DELHI HIGH COURT].
As have considered the said judgment where the issue was relating to the notice u/s 148 of the Income Tax Act (under the Old Act) where there were no provisions like giving opportunity to an assessee to file objection to the notice which is mandatory to be issued under Section 148A(b) of the Act and that after considering the objection against u/s 148A(b) the assessing officer was required to pass order u/s 148A(d) and only thereafter he will have to issue notice u/s 148 after approval from the specified authority and after issuance of notice u/s 148 the assessing officer will have to observe all the formalities of issuing notice under Section 142(1) and 143(2) like a regular assessment and only then order u/s 147 could be passed. These factors were not present under the Old Act.
It is a well-settled principles of law that the Writ Court cannot act as an assessing officer or an appellate authority to scrutinise the facts and findings based on evidence by the assessing officer in the final assessment order which is an appealable order and to substitute with its own findings and reasonings. This is not a case where the assessment order has been passed by an authority having inherent lack of jurisdiction or there is any procedural irregularity or that the impugned order has been passed in violation of principles of natural justice which are exceptions for entertaining the writ petition in spite of availability of alternative remedy.
In view of the discussion made above, we are not inclined to entertain this writ petition and accordingly, this writ petition dismissed.
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2023 (7) TMI 1352
Deemed dividend addition u/s 2(22)(e) - Substantial question of Law - HELD THAT:- As revenue, the proposed questions (d), (e) and (f) stand covered against the appellant/revenue, by virtue of the judgment rendered by a coordinate bench of this court in CIT v. Ankitech Pvt. Ltd. [2011 (5) TMI 325 - DELHI HIGH COURT] We are informed that a Special Leave Petition (SLP) was preferred against the said judgment, which was also dismissed.
Learned counsel for the parties will file written submissions, not exceeding three (3) pages each, at least five (5) days before the next date of hearing, confined to the proposed questions (a), (b) and (c).
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2023 (7) TMI 1351
Deemed dividend u/s 2(22)(e) - Substantial question of Law - HELD THAT:- As revenue, the proposed questions (e), (f) and (g) stand covered against the appellant/revenue, by virtue of the judgment rendered by a coordinate bench of this court in CIT v. Ankitech Pvt. Ltd. [2011 (5) TMI 325 - DELHI HIGH COURT] We are informed that a Special Leave Petition (SLP) was preferred against the said judgment, which was also dismissed.
Learned counsel for the parties will file written submissions, not exceeding three (3) pages each, at least five (5) days before the next date of hearing, confined to the proposed questions (a) to (d).
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