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Showing 221 to 240 of 1466 Records
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2016 (3) TMI 1254 - CALCUTTA HIGH COURT
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 - GUJARAT HIGH COURT
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 - CESTAT NEW DELHI
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 - CESTAT ALLAHABAD
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 - DELHI HIGH COURT
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 - DELHI HIGH COURT
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 - CESTAT, CHENNAI
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 - ITAT AMRITSAR
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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2016 (3) TMI 1246 - BOMBAY HIGH COURT
Service of the statutory notice - medium of delivery of notice - Held that:- All that we have is two alphabets “I.P.” and these, as told to assume without proof, man “Intimation Posted”. Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned ‘unclaimed’. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted.
Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words “or other means”. This presumably allows for delivery by hand; none was attempted.
There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent had no cause to refuse delivery, and it did not in fact refuse delivery. None was attempted, that is all; and that is what the material shows.
Therefore, even on the ground of want of service of the statutory notice, would have been moved to dismiss this Petition, reserving, however, liberty to the Petitioner to file a fresh Petition after issuance of a fresh notice.
Unable to find any merit in the distinctions that asked to draw, viz., that the contract in question was a different contract from that before the Court on 7th December 2015; that the Petitioner was a different Petitioner; and that the machines involved and the underlying contracts were different. The same defence was taken in Company Petition No. 340 of 2013 against another guarantor as is taken here. That Petition was dismissed. So must this.
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2016 (3) TMI 1245 - DELHI HIGH COURT
Addition u/s 68 - prove the genuineness and creditworthiness of creditors - Held that:- No doubt it is duty of the assessee to prove the genuineness and creditworthiness of his creditors, but when all the transactions in this case have been routed through banks and the complete particulars have been furnished by the assessee, which have not been disputed by the Assessing Officer, the Assessing Officer was required to ensure the presence of creditors by using coercive method and not to proceed summarily.
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As far as the question of disbelieving the statement of affairs and cash flow statement filed by on or behalf of the creditors in the face of the fact that they had filed return declaring income of about ₹ 1 lac is concerned, the same has been disbelieved on the basis of conjectures and surmises. Because it varies from person to person to maintain the books of accounts even if, their income is meager. Merely on the basis of the fact that the income was about ₹ 1 lac the statement of books of accounts cannot be disbelieved.
When all these facts are further examined in the light of the undisputed fact that all the documents to prove the genuineness and creditworthiness of S/Sh. Netram Goel, Anil Kumar Bansal, Mahender Pratap Singh, Ajay Kumar Jain, Virender Kumar, Vikas Kumar & Ms. Manju Rani lying at pages 92 to 160A of the Paper Book having been perused by the Assessing Officer and the loan amount in question borrowed by the assessee has since been repaid by the assessee by way of account payee cheques prior to 2009, the order passed by the ld. CIT(A) is not sustainable in the eyes of law.
Thus the assessee has duly discharged the onus upon him to prove the genuineness and creditworthiness of his creditor to prove the loan of ₹ 8 lacs, otherwise proved to have been paid by way of cheques and as such the addition made to his income is not sustainable. - Decided in favour of assessee.
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2016 (3) TMI 1244 - SC ORDER
Temporary injunction - Restriction on transferability of the equity shares holding by the Opposite Party No. 1 under the said agreement - Held that:- HC has held since this Court does not find the existence of a prima facie case having made out in application for temporary injunction in view of the findings recorded hereinabove, there is no infirmity and / or illegality in the impugned order by which an application for temporary injunction is rejected by this Trial Court. [2015 (10) TMI 2659 - CALCUTTA HIGH COURT]
Learned counsel for the petitioners seeks permission of the Court to withdraw the special leave petition. Permission sought for is granted.
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2016 (3) TMI 1243 - HIGH COURT OF PUNJAB AND HARYANA
Action of removal of the petitioner from membership of the NFI and appointment of the ad-hoc committee - Competition Director eligigiblity to pass order - Held that:- Competition Director, who had passed the order of removal of the petitioner from the membership of the NFI on an un-dated letter, had no jurisdiction much-less competence to pass such an order. However, the question would be as to whether the said action taken by the Competition Director has rightly been affirmed/ratified in the Annual General Meeting, which was held on 29.03.2015.
The respondents did not include the item of removal of the petitioner from the membership in the agenda though it was an important agenda item which should have been specifically mentioned and circulated to the members so that they could have come prepared for deliberations and voting on the said agenda item and it could not have been taken up under the miscellaneous head because the miscellaneous head is only meant for those items which are emergent in nature and are not known at the time of preparation of agenda, whereas the Competition Director had handed over his letter dated 03.02.2015 to the NFI and the agenda for the Annual General Meeting was prepared on 08.03.2015, almost after a month, therefore, there was no reason for the respondents to have excluded the agenda item pertaining to removal of the petitioner from the membership of the NFI so that the General Council could have deliberated upon it before voting. The respondents have also violated the principle of natural justice as no opportunity of hearing much-less show cause notice was given before its removal from the membership.
Thus, the action of removal of the petitioner from membership of the NFI and appointment of the ad-hoc committee is totally illegal and hence, the fifth petition is also allowed, as prayed for.
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2016 (3) TMI 1242 - ITAT BANGALORE
TPA - comparability - Held that:- The assessee engaged in R & D services in the field of e-commerce, e-solutions, internet security and management, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
To summarise we direct exclusion of Avani Cimcon Technologies Ltd, Celestial Labs Ltd, E- Zest Solutions Ltd, Flextronics Software Systems Ltd (seg), Helios & Matheson Information Technology Ltd, Infosys Technologies Ltd, Ishir Infotech Ltd, Kals Information Systems Ltd, Lucid Software Ltd, Persistent Systems Ltd, and Wipro Ltd (seg), from the list of comparables. Comparability of M/s. Tata Elxsi Ltd (seg), is remitted back to the TPO / AO for consideration afresh as per law. We also direct that Megasoft Ltd, shall be considered for inclusion only after segmentation of its results. Needless to say working capital adjustment shall be reworked by the AO / TPO confining to the comparables that are left after exclusions.
Deduction u/s 10A computation - foreign currency expenditure on telecommunication expenditure not excluded from the export turnover - Held that:- Submission of the assessee that what has been reduced from export turnover should also be deducted from the total turnover while working out the deduction u/s.10A of the Act, needs to be accepted in view of the judgment of Hon’ble jurisdictional High Court in the case of CIT v. Tata Elxsi Ltd (2011 (8) TMI 782 - KARNATAKA HIGH COURT ).
Allowability of software expenditure - revenue or capital expenditure - Held that:- What we find is that the nature of software expenditure was not analysed by the lower authorities. AO had simply considered it as a capital outgo without verifying whether the expenditure was relatable to application software or system software, which gave enduring benefit to the assessee. It is true that some application software can have enduring quality. A close analysis of the expenditure is required for coming to a reasoned conclusion We are of the opinion that the matter requires a fresh look by the AO. We remit the issue back to the file of the AO for consideration in accordance with law.
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2016 (3) TMI 1241 - ITAT AHMEDABAD
Unaccounted cash receipts additions - Held that:- We reiterate that Shri Bhikubhai has not been able to prove himself as the authorized person to operate the locker in question on the date of search. His corresponding plea before the Settlement Commission has also not been considered (supra). We observe in these peculiar facts and circumstances that not only assessment of an income is of paramount importance in scrutiny proceedings, but also it is equally significant that the same has to be done in the hands of the right assessee. We hold that it is the assessee only who is the rightful owner of the cash seized from its bank locker hereinabove in absence of any exception being pointed out. We conclude that the unaccounted cash seized sum of ₹ 74 lacs belonged to the assessee only and the same deserves to be assessed in its hands as against that in Shri Bhikubhai’s case. We accept Revenue’s arguments seeking to revive Assessing Officer’s action. It is made clear that the assessing authority shall ensure that the same amount is not taxed twice.
Treating the cash seized as advance tax - not granting any relief towards wrongly charging of interest u/s. 234A, 234B and 234C - Held that:- Revenue only submits that the assessee raised this issue only in its return and not before that. We find that both the lower authorities have rejected its plea seeking interest relief inter alia for want of any specific prayer being made at its behest.
We reiterate that the Revenue does not point out any exception to decision in accepting identical relief in Kanishka Print Pvt. Ltd vs. ACIT [2013 (7) TMI 14 - ITAT AHMEDABAD] of interest therein so far credit of advance tax is concerned. The assessee has also not filed any evidence to prove that it had made any specific prayer before filing its return along with statement of income including ₹ 80 lacs seized in search as advance tax. We draw support from above stated judicial precedent and hold the assessee is entitled for claiming the impugned credit relief w.e.f. date of filing return only.
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2016 (3) TMI 1240 - ITAT DELHI
Initiation of proceedings u/s 201/201(1A) - assessee in default - Held that:- AO has not made any exercise to ascertain whether the deductee / payee assessee has failed to pay taxes directly before initiation of proceedings u/s 201/201(1A) of the Act, thus assumption of jurisdiction itself stands vitiated and all subsequent proceedings are null in the eyes of law. Therefore, we quash the initiation of proceedings of the AO at the outset itself. The AO ought to have assumed jurisdiction only after satisfying the jurisdictional fact as laid by the Hon’ble Jurisdictional High Court in M/s. Jagran Prakashan Ltd. [2012 (5) TMI 488 - ALLAHABAD HIGH COURT ] which as stated before is obviously absent. So, we quash the impugned assessments itself. Appeals of the assessee are allowed.
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2016 (3) TMI 1239 - GUJARAT HIGH COURT
Eligibility to the benefit of section 80-IB(11A) - whether Tribunal was right in law in holding that the assessee is entitled to deduction of 25 per cent. and not 100 per cent. u/s 80-IB(11A) as claimed by the assessee? - Held that:- An undertaking like the assessee, which derives profits from the business of processing, preservation and packaging of fruits or vegetables would be entitled to deduction under section 80-IB(11A) from the initial assessment year, viz., the assessment year relevant to the previous year in which it begins such business. The appellant began its business with effect from June 2, 2001 and hence, the initial assessment year in the case of the appellant would be assessment year 2002-03.
Since, assessees like the appellant became entitled to the benefit of deduction under section 80-IB(11A) only with effect from April 1, 2005, for the assessment years under consideration, since five years had already elapsed from the initial assessment year, the appellant was entitled to deduction of only 25 per cent. of the profits and gains from its business. The Tribunal was, therefore, wholly justified in holding that no artificial definition to the initial assessment year can be put by holding that the initial assessment year would be 2005-06 even though the assessee has commenced its business with effect from June 2, 2001. It is by now well-settled that in a taxing statute, the provisions have to be construed strictly and there is no room for equity therein. Under the circumstances, no infirmity can be found in the view adopted by the Tribunal, which is clearly in consonance with the plain language of the statute.
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2016 (3) TMI 1238 - CESTAT NEW DELHI
Detention of goods - recovery of sums due to Government - section 11 of the Central Excise Act - Held that: - On perusal of the main part of Section 11 ibid, it reveals that the Central Excise officers are empowered to deduct the amount payable under the statute by the assessee, from the money owing to the person by the Department. Section 11 ibid also mandates that if the amount payable is not recovered from the assessee, the Central Excise officers will proceed to attach and sell the excisable goods and also to prepare the certificate proceedings for recovery of the sums due.
The embargo created in the proviso to Section 11 ibid will not have any application to the facts of this case inasmuch as handing over position of assets of the defaulter M/s. AECEL by MPSIDC to the respondent took place on 12.11.2003 and the sale deed was executed on 22.03.2004, which were prior to insertion the proviso clause to Section 11 ibid. Thus, detention order issued by the Department is not in confirmity with the Central Excise statue - the said statutory provisions have no application to the case in hand, for the reason that the said rule is no more in vogue at the material time, when the assets of the defaulting company was handed over to the respondent.
Appeal dismissed - decided against Revenue.
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2016 (3) TMI 1237 - MADHYA PRADESH HIGH COURT
Jurisdiction - power of officers to issue SCN - Held that: - no case for issuance of any direction to permit the petitioner to cross-examination the Excise Officers is made out - petition dismissed.
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2016 (3) TMI 1236 - ITAT BANGALORE
TPA - selection procedure of comparability - Held that:- Assessee is a wholly owned subsidiary of M/s. Citrix Systems, USA and is engaged in providing software development services, thus companies functinally dissimilar with that of assessee need to be deselected from final list of comparability.
Comparables on the reason of having accounts of different financial years and was difficult to compare the financial results - Held that:- We are of the opinion that the TPO is correct in rejecting this comparable on the different financial year filter. AS 21 may allow consideration of accounts and Company Law may permit having different financial year ending for consolidation accounts, but the data available in public domain cannot be adjusted to the financial year of assessee-company. There may be many factors which may affect the results in the intervening period. Unless the data is completely available, averaging the financial results to suit assessee’s financial year may give a distorted picture. Since the public data available pertain to a different financial year, we are of the opinion that the same can not be considered as comparable in the absence of suitable financial data. We direct the same to be excluded from the list of comparables. We also find that this company is not selected as a comparable in the similar cases in this assessment year
VAT payments indicating product sales - M/s. VJIL Consulting Ltd. - Held that:- The company can be excluded, as there is no clarity on why the VAT was paid be it in UK or India. The same company was rejected in other similarly placed companies and we do not find any case in which this company is selected as comparable. Consequently, we are of the opinion that this company has to be excluded.
Deduction u/s 10A - Held that:- Whatever is excluded from export turnover should also be excluded from total turnover for the purpose of computing deduction u/s. 10A of the Act
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2016 (3) TMI 1235 - ITAT HYDERABAD
Assessment u/s 153A validity - Held that:- The assessments in the case of all of these assessees were either completed or the time for issuance of notices under S.143(2) had already lapsed by the date of search. Also there was no material whatsoever found during the course of search relating to any of the assessees herein and therefore, it can safely be concluded that there was no incriminating material was found relating to the assessee's for the relevant assessment years during the course of search. It has been held in various cases that unless and until there is incriminating material relating to the assessee found during the course of search, there cannot be any assessment under S.143(3) read with S.153A, as far as the concluded assessments are concerned. Learned counsel for the assessee has successfully demonstrated before us that in all these cases, either assessments were completed or the due date for the issuance of notice under S.143(2) has lapsed prior to the date of search. Therefore, we quash the impugned assessments made under S.143(3) read with S.153A - Decided in favour of assessee.
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