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Case Laws
Showing 221 to 240 of 1478 Records
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2016 (3) TMI 1266
Entitlement to exemption u/s 54B - purchase of some part of agricultural land before the date of sale - Held that:- CIT(A) has made a clear finding of fact that payment for purchase of such land was made out of advances received by assessee against sale of land and in fact he has held that payments were directly made by buyer of agricultural land to the seller who had sold land to the appellant. The learned CIT(A) has further relied upon the CBDT circular No.359 dated 10.05.1983 which refers to section 54E of the Act. As per said circular the exemption u/s 54E of the Act is available to an assessee if part of sale consideration or earnest money or the advances received against sale of asset is invested in specified assets before the date of transfer of assets.
CIT(A) has rightly held that by executing the agreement to sell by transferor a right is credited in favour of transferee. The transferor is restrained from selling the said property to someone else because the transferee, in whose favour the right in personam is created, has a legitimate right to enforce specific performance of the agreement, if the transferor for some reasons do not execute the sale deed. Therefore, when the assessee purchased land by way of execution of an agreement by the transferor irrespective of the fact that sale deed could not be entered the assessee is eligible to enforce his right and therefore, he has rightly held that assessee is deemed to have purchased the land. In view of the above findings of learned CIT(A), he has rightly allowed the exemption u/s 54B of the Act. - Decided in favour of assessee.
Deduction of eviction charges u/s 48(1) - payments for eviction of land was made as the Assessing Officer had verified the confirmation of payments received by eleven persons who were paid the amounts for eviction - Held that:- CIT(A) has rightly allowed the deduction of such eviction charges u/s 48(1) of the Act. We further find that in the case of a joint owner Mr. Jit Singh who had also paid similar eviction charges and learned CIT(A) has deleted the addition made by Assessing Officer on account of eviction charges, and the Department has not filed any appeal for allowance of eviction charges by learned CIT(A). - Decided in favour of assessee.
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2016 (3) TMI 1265
Scheme of Arrangement - Held that:- The proposed Scheme does not envisage any arrangement or compromise with the creditors of the Applicant Transferee Company. The Applicant Company shall continue its business operations. The Applicant Company undertakes to fulfill all its liabilities towards the Creditors in the normal course of its business. Moreover, a certificate by the Chartered Accountant, confirming that the Net Worth of the Applicant Company as on 31st December 2015, has been placed on record. A perusal of the same indicates that prior to giving effect to the proposed Scheme, the Net Worth of the Applicant Company was ₹ 222.9 crores; Whereas in the Post-Scheme scenario, it shall be approximate ₹ 154.9 crores.
The Net Worth being substantially high, and considering the above noted facts and circumstances, and the submissions advanced it is held that the meeting of the Unsecured Creditors, for considering and approving the proposed Scheme, is not necessary and the same is dispensed with.
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2016 (3) TMI 1264
Scheme of Amalgamation - Held that:- Having heard Mr.Navin K. Pahwa, learned advocate for the applicant and considering the fact that all the Equity Shareholders and the Unsecured Creditors of the applicant Company have given their consent in writing, as required under Section 391(2) of the Act, to the proposed Scheme of Amalgamation for amalgamating the applicant Company with Swapna Srushti Horizon Private Limited, the meetings of the Equity Shareholders and the Unsecured Creditors of the applicant Company are ordered to be dispensed with.
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2016 (3) TMI 1263
Scheme of Amalgamation - whether Holding Transferee Company is not required to take out separate proceedings for obtaining the sanction of this Court to the proposed Scheme of Amalgamation of its wholly owned subsidiary Company, with itself? - Held that:- No separate proceedings are required to be undertaken by the Transferee Company, being the Holding Company, under the provisions of Section 391(2) of the Companies Act, 1956.
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2016 (3) TMI 1262
Scheme of Arrangement - dispensation of the meeting of the Equity Shareholders, Preference Shareholders, Secured and Unsecured Creditors of the Applicant Transferor Company - Held that:- a. The meeting of the Equity Shareholders of the Applicant Transferor Company is dispensed with, in view of the consent letters of all the Equity shareholders and the Chartered Accountant’s certificate, certifying the list of Equity Shareholders.
b. The meeting of the Preference Shareholders of the Applicant Transferor Company is dispensed with, in view of the consent letters of all the Preference Shareholders and the Chartered Accountant’s certificate, certifying the list of Preference Shareholders.
c. The meeting of the Secured Creditor of the Applicant Transferor Company is dispensed with, in view of the fact that there are no Secured Creditors of the Applicant Transferor Company.
d. The meeting of the Unsecured Creditors of the Applicant Transferor Company is dispensed with, in view of the consent letters of all the Unsecured Creditors and the Chartered Accountant’s certificate certifying the list of Unsecured Creditors.
e. Publication of notice in the Official Gazette is ordered to be dispensed with.
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2016 (3) TMI 1261
Constitutional validity of Rule 8(3A) of the Central Excise Rules 2002 - Prohibition on assessee from utilising cenvat credit for payment of excise duty for default in payment of duty - the order of the Gujarat High Court in Indsur Global Ltd. v. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] has been stayed - the Appellant is restrained from recovery of its dues from the Respondent till the disposal of this petition.
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2016 (3) TMI 1260
Scheme of amalgamation - Held that:- All the Equity Shareholders and sole Unsecured Creditor of the applicantCompany have approved the Scheme in the form of written consent letters. All these consent letters are annexed with the application as Annexures' D' and 'F', respectively. There are no Secured Creditors of the applicantCompany as on date. The certificates confirming the status of the Shareholders and Creditors as well as the receipt of the consent letters from all the Shareholders and sole Unsecured Creditor are annexed as Annexures' E' and 'G', respectively. In view of the same, dispensation is sought from convening meetings of the Equity Shareholders and sole Unsecured Creditor of the applicantCompany and considering the facts and circumstances and the submissions advanced, the same is, hereby, granted.
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2016 (3) TMI 1259
Scheme of Arrangement in the nature of Demerger - Held that:- Chairman appointed for the aforesaid meetings shall issue advertisements and send out notices of the said meetings referred to above. It is further directed, that the Chairman of the meetings shall have all powers under the Articles of Association of the applicant Company and under the Companies (Court) Rules, 1959 in relation to conduct of meetings, including an adjournment of the meetings, and/or an amendment to the Scheme or resolution, if any, proposed at the meetings by any person(s) and to ascertain the decision of the meetings on a poll.
That the quorum for the said meetings shall be 10(Ten) for the meeting of the Equity Shareholders, 3 (Three) for the meeting of the Secured Creditors, and 10(Ten) for the meeting of Unsecured Creditors present in person or through authorized representative or through proxy.
That voting by proxy is permitted provided that the proxy in the prescribed form and duly signed by the person entitled to attend and vote at the aforesaid meetings, or by his authorised representative, is filed with the applicant Company at its registered office at Dalpur, not later than 48 hours before the said meeting.
That the value of the vote of each Equity Shareholder of the Company shall be as per the entries in the Registers of the Company and that of the creditors as per the entries in the books of accounts of the applicant Company and where the entries in the records or registers are disputed, the Chairman of the meetings shall determine the value or number for the purposes of the meetings and his decision in that behalf would be final.
That the Chairman shall report to this Court, the result of the said meetings within 14 (fourteen) days of the conclusion of the meetings and the said Report shall be verified by his affidavit.
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2016 (3) TMI 1258
TPA - selection of comparable - Held that:- Assessee was a 100% export-oriented unit and providing ITE services to its holding company in British Virgin Islands, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
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2016 (3) TMI 1257
Scheme of amalgamation - direct that the meetings of shareholders, creditors secured and unsecured of companies other than the meeting of unsecured creditors of Mindscape One Marketing Private Limited be dispensed with. The meeting of the unsecured creditors of Mindscape One Marketing Private Limited however be held to examine the proposed scheme of amalgamation.
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2016 (3) TMI 1256
TPA - selection criteria for comparables - Held that:- Assessee is a wholly owned subsidiary of Novell Inc., USA (Novell US). Novel US, helps customers realise the value of their information and deliver it securely and economically to their stake holders across any platform. Assessee provided software development and support services to Novel, US Inc. Financial, thus functionally dissimilar companies to be deselected from final list.
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2016 (3) TMI 1255
Transfer of title in favour of the nominee - case of a valid nomination under Section 79 of the 1983 Act - inheritors or successors to the property of the deceased - member of 'the Cooperative Society' requirment to nominate a person in whose favour 'the Cooperative Society' would dispose of the share or interest of the member “on his death” - Held that:- As is postulated under Section 79 of the 1983 Act, Rule 127 of the 1987 Rules provides, that if a nomination has been made by a member under Section 79, the share or interest or the value of such share or interest standing in the name of the deceased member, would be transferred to the nominee.
Rule 127 postulates nomination only in favour of a person “belonging to his family”. It is not necessary for us to deal with the issue whether the appellant – Indrani Wahi, being a married daughter of the original member – Biswa Ranjan Sengupta, could be treated as a member of the family, of the deceased member (Biswa Ranjan Sengupta), because the learned Single Judge, as also, the Division Bench of the High Court concluded, that the appellant – Indrani Wahi was a member of the family, of the original member - Biswa Ranjan Sengupta. This conclusion has not been assailed by the respondents, before this Court.
Rule 128 of the 1987 Rules also leads to the same inference. Inasmuch as Rule 128 aforementioned provides, that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate (issued by a Court of competent jurisdiction).
Insofar as the instant aspect of the matter is concerned, there is no doubt in our mind, that even Rules 127 and 128 of the 1987 Rules, lead to the inference, that in case of a valid nomination, under Section 79 of the 1983 Act, 'the Cooperative Society' is liable to transfer the share or interest of a member in the name of the nominee. We hold accordingly.
Having recorded the above conclusion, it is imperative for us to deal with the conclusion recorded in paragraph 6 (already extracted above) of the judgment of this Court in the Usha Ranjan Bhattacharjee case (1997 (3) TMI 621 - SUPREME COURT OF INDIA ). In this behalf, it is necessary to clarify that transfer of share or interest, based on a nomination under Section 79 in favour of the nominee, is with reference to the concerned Cooperative Society, and is binding on the said society. The Cooperative Society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with Sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules). That, would have no relevance to the issue of title between the inheritors or successors to the property of the deceased. Insofar as the present controversy is concerned, we therefore hereby direct `the Cooperative Society' to transfer the share or interest of the society in favour of the appellant – Indrani Wahi. It shall however, be open to the other members of the family (presently only the son of Biswa Ranjan Sengupta – Dhruba Jyoti Sengupta; we are informed that his mother – Parul Sengupta has died), to pursue his case of succession or inheritance, if he is so advised, in consonance with law. Appeal stands allowed in the above terms.
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2016 (3) TMI 1254
Winding up petitions - whether the respondent companies could claim adjustment of goods sold and delivered by Concast Bengal to the appellant petitioning creditor, assuming that Concast Bengal had actually supplied goods to the petitioning creditor, as claimed by the respondent companies? - Held that:- The question is whether there was any arrangement by which a right to adjustment can be claimed. This is a factual issue which may have to be decided on the basis of evidence, documentary as also oral.
The learned Company Court rightly held that a company would be liable to be wound up if it was unable to pay its debts. The question posed by the learned Court was how the Court could adjudge if a company was unable to pay its debts. The learned Company Court drew an analogy between the circumstances in which a Court trying a summary suit could grant a decree or grant leave to defend and held that the principles would apply to winding-up proceedings.
In Madhusudan Gordhands & Co. vs. Madhu Woollen Industries [P] Ltd. [1971 (10) TMI 49 - SUPREME COURT OF INDIA] relied upon by the learned Company Court, the Supreme Court held that if a company raised a defence in good faith or a defence which was likely to succeed or prima facie likely to succeed at the trial, in that event the winding-up application would fail.
Industries Corporation Ltd. [2004 (8) TMI 684 - CALCUTTA HIGH COURT] where a Division Bench of this Court presided over by Ajoy Nath Ray, A.C.J., opined that in a winding-up application, the Court had to come to the conclusion that the claim of the petitioning creditor was indisputable. This determination had to be final and not prima facie, at both stages of winding up, the admission stage and the trial stage. At the admission stage it was final and conclusive as between the petitioning creditor and the company, but at the final stage it was conclusive between the petitioning creditor, the company, the creditors and all other persons who joined the winding-up.
In SRC Steel Pvt. Ltd. [2004 (8) TMI 684 - CALCUTTA HIGH COURT] held that the standard of proof required by the petitioning creditor to prove his case in the winding-up application was the same standard that was required to prove a plaintiff’s case in a summary suit. The learned Company Court rightly concluded that the company must be in a completely defenceless position, for it to be wound up. It would suffice if the company raised a triable issue for relegation of a winding-up application to a civil forum, the defence is a completely sham defence, the Court may direct the company to be wound up. If, however, the defence raised by the company in the winding-up proceedings is not a sham defence but a plausible one, the Court ought not to direct winding-up of the company.
We find no infirmity whatsoever in the order of the learned Company Court which calls for interference in appeal.The appeals and the connected applications are, therefore, dismissed.
We, however, make it clear that the period during which the appeals have been pending in this Court, shall also be excluded for computation of limitation under Section 14 of the Limitation Act, 1963.
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2016 (3) TMI 1253
Winding up petition - appointment of Official Liquidator - unable to pay admitted dues - Held that:- It is an admitted position that the respondent-Company is in a weak financial position and is unable to pay its admitted dues to the petitioner, this Court considers it appropriate to pass the following order :
(i) Admit.
(ii) The Registry is directed to notify the petition for final hearing on 03.05.2016.
(iii) The admission of the petition shall be advertised in the English daily newspaper “The Times of India” and the Gujarati daily newspaper “Divya Bhaskar” (both Ahmedabad Editions).
(iv) The Official Liquidator attached to this Court is appointed as the Provisional Liquidator of the respondent-Company and is directed to take over the charge and possession of the assets of the respondent-Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent-Company, as required by law.
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2016 (3) TMI 1252
CENVAT credit - GTA services - only dispute in this case is that the appellant was entitled to take Cenvat credit of 25% of the gross amount charged by the goods transport agency and not on the entire amount of service tax paid by the appellant - Held that: - Since the fact is not under dispute that the service tax paid by the appellant was taken as Cenvat credit, denial of such credit is not in confirmity with Rule 3 of the Cenvat Credit Rules, 2004, which mandates that service tax paid on input service received by the manufacturer of final product is eligible for Cenvat credit - denial of credit unjustified - appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1251
CENVAT credit - duty paying invoices - appellant had taken Credit on the basis of Advice of Transfer Debit issued by the Central Telephone Store Department of the appellant, supported by Xerox copies of the original invoices - Held that: - the issue is no more res-integra, and has been decided in the case of Bharat Sanchar Nigam Ltd. Erode Versus Commissioner of Central Excise, Salem [2013 (12) TMI 742 - CESTAT CHENNAI], where it was held that considering the commercial practice which was necessary for efficient procuring the equipment in question, this procedural lapse cannot be considered as a reason to deny Cenvat credit involved.
The re-conciliation is not done before the Court below - the adjudicating authority directed to pass a fresh order by following the decision of this Tribunal in the case of M/s B. S. N. L. Vs. CCE - appeal allowed by way of remand.
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2016 (3) TMI 1250
Approval of the scheme of amalgamation - Held that:- The scheme has been approved by the Board of Directors (BOD) of the applicants. Copies of the BOD resolution of even date i.e. 11.01.2016 have been filed.
The applicants aver that there that there are no proceedings pending against them, under Sections 235 to 251 of the Act. Consents have been obtained from the shareholders of the applicants. Consents obtained from the shareholders of the applicants, unsecured creditors of the transferor companies and of the unsecured creditors of the transferor companies and requirement to convene their meetings also dispensed with.
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2016 (3) TMI 1249
Scheme of Arrangement - Held that:- The scheme envisages the amalgamation of applicant no.1/ transferor company with applicant no.2/ transferee company. It also envisages, thereafter, the demerger of the industrial division, which would, merge with resulting company no.1; while the investment business would get demerged,and thereafter, would stand merged with resulting company no.2. The high end business centre would, however, remain with applicant no.2/ transferee company. The resulting company no.1 and resulting company no.2 would act as special purpose vehicles which would absorb the industrial business and the investment division respectively. This, in nutshell, are the broad contours of the proposed scheme.
A prayer has been made to dispense with the requirement of convening meetings of the shareholders of the applicants and unsecured creditors of the transferee/demerged company. The letters of consent submitted by the shareholders have been seen and examined. They are found in order. Similarly, letters of consent of the unsecured creditors of the transferee/demerged company have been seen and found in order.
Accordingly, the prayer made for dispensing with the requirement of convening meetings of the aforementioned class of persons is allowed
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2016 (3) TMI 1248
Waiver of penalty - Held that: - penalty was waived by learned Commissioner (Appeals) on the ground that he did not find any malafide of the respective respondents and CBE & C guide lines do not intend to penalise public authorities - it was also noted that no Government body would be making any fraud or collusion to defraud Revenue - When such recorded finding is apparent from record, in absence of any evidence to controvert the same, no interference to the order of Commissioner (Appeals) is called for - appeal dismissed - decided against Revenue.
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2016 (3) TMI 1247
Disallowing expenditure under section 40A(3) - bonus payable/paid to commission agents on the purchase of agricultural land - Held that:- In the present case, the genuineness of payment has not been doubted as Assessing Officer himself has held that sale deeds of properties were registered with the Revenue Department of Govt. Therefore, we find that the Hon’ble Punjab & Haryana High Court in the case of Gurdas Garg vs. CIT (2015 (8) TMI 569 - PUNJAB & HARYANA HIGH COURT ), under similar facts and circumstances has held that where the genuineness of payments is not disbelieved the disallowance u/s 40A(3) cannot be made - Decided in favour of assessee.
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