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Showing 221 to 240 of 1486 Records
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2020 (3) TMI 1266
Refusal to pay the debt amount - right to sue - time limitation - HELD THAT:- Mere plain reading of the Article 137 of the Limitation Act shows that any other application for which no period of limitation is provided elsewhere in this division the application must have been filed within three years, when the right to apply accrues. Here in this case, the right to apply accrues on 08.08.2015, when the applicant has raised the invoices and we further find, the applicant has enclosed the ledger account of the Corporate Debtor and tried to convince us that the said amount is reflected in the ledger account of the Corporate Debtor at page 77 and it comes within the acknowledgment under Section 18 of the Limitation Act.
There is no dispute that the Article 137 of the Limitation Act is applicable in case of IBC, and therefore, that decisions will not help the applicant rather it Corroborate our contentions that the Limitation runs from the date when the right to apply accrues that is either from the first date of debt become due or the date when it was acknowledged. Since the acknowledgement was made on 14.03.2016 and the present application has been filed on 15.01.2020 therefore, the present application is barred by the limitation.
The present application is dismissed as barred by limitation.
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2020 (3) TMI 1265
Liquidation of the Corporate Debtor - section 33(1), 33(2) and 33(3) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- CoC does not wish to continue the CIRP process and therefore, the CoC has resolved for liquidation of the Corporate Debtor vide its Ninth meeting dated 13.11.2019. It is also to be noted that this Adjudicating Authority has no jurisdiction to interfere in the commercial wisdom of the CoC as observed in COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT].
The Corporate Debtor is allowed to be liquidated - moratorium cease to have effect.
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2020 (3) TMI 1264
Temporary release of all the under trials and convicts, who are accused of offences where the maximum period of imprisonment prescribed under the I.P.C and other Statutes is upto 5 years and fine - non-heinous crimes - prayer to segregate those inmates, who are ailing and provide them proper medical facilities - HELD THAT:- It is directed that the Govt. of NCT of Delhi and the Delhi Police shall take immediate steps, preferably within two days to implement its decisions.
Needless to state that the under trial prisoners shall be at liberty to apply for interim bails on account of the current situation, which shall also be taken into consideration by the appropriate courts and the said petitions shall be decided in accordance with law.
Petition disposed off.
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2020 (3) TMI 1263
Extension of 45 days of CIRP period beyond 330 days - Rule 11 of NCLT rules 2016 read with Section 60(5)(C) and 12(3) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the present case the Committee of Creditors in its 13th meeting with 85% vote share voted during 6th -7th February, 2020 approved resolution for extension of 45 days of Insolvency Resolution Period mainly on the ground that the resolution plan is under consideration of Committee of Creditors. It is mentioned in the minutes that the resolution plan is on the verge of finalization and may take another one month to arrive at a viable resolution plan in respect of the corporate debtor - In the facts and in order to explore the possibility of achieving successful insolvency resolution and to avoid liquidation of the corporate debtor; the Corporate Insolvency Resolution Process period in the present case is further extended by 45 days from the date of this order. The Resolution Professional and the members of Committee of Creditors are directed to expedite the possibility of achieving resolution of the stressed assets of the corporate debtor within the extended period.
Application allowed.
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2020 (3) TMI 1262
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - HELD THAT:- It is the settled principle of Law that if a notice of pre-existing dispute between the parties has been received by the Operational Creditor or there is record of disputes in the information utility the insolvency code cannot be applied. Thus, the applicant has not approached with clean hand rather suppressed the existence of pending disputes.
Since the Respondent/Corporate Debtor by filing the reply to the demand notice dated 17th May, 2019 stated that there are existing disputes with regard to the outstanding payment and the same has been intimated by the management, therefore, we would like to consider this aspect at first, where dispute raised by the Corporate Debtor in reply to demand notice issued under Section (81) is a dispute in terms of Section 8(2)(a) or not?
The objection was raised by Corporate Debtor on the invoice/bill submitted by the applicant prior to the date of issuance of the demand notice. We further find since on 6th June 2019. show cause notice under Section 6 of the Payment of Wages (amended) Act. 2017 was sent in which the correspondence made through the various email. Further, vide email dated 6th June. 2019, the Corporate Debtor has also informed the Operational Creditor that due to non-payment of salary, the staffs deputed by the Operational Creditor refused to join their service on 6th June, 2019 and they have gathered in front of the hospital near gate No. 1.
Whether this dispute has been raised within the period prescribed under Section 8(2) of the IBC, 2016 or not? - HELD THAT:- Before receiving the demand notice, the Corporate Debtor has raised the disputes and the email exchanged between the two, which are prior to the issuance of the demand notice shows that there was a dispute regarding the amount claimed by the Operational Creditor and it has also come that the proper staff were not being deputed/posted by the Operational Creditor as per the agreement - there are no option but to hold that the Corporate Debtor has raised the dispute regarding the service and also regarding the payment made by the Operational Creditor to their employees/staff.
It cannot be said that since there is a labour dispute and the matter is pending before the Labour Commissioner regarding the payment of the amount, therefore, that does not come under the purview of the dispute as under Section 8 and 9 of the IBC, 2016, rather, it can be safely said that the Corporate Debtor has raised the dispute, which is corroborated by the email exchanged between the two. prior to the delivery of the demand notice.
Since there is existence of dispute, therefore, in order to admit an application under Section 9. this Adjudicating Authority is required to consider the ground mentioned at Section 9(5)(i) of the IBC, 2016, and if these conditions are not fulfilled then this Adjudicating Authority have no option but to reject the application under Section 9(5)(ii) - in the case in hand, notice of dispute has been received by the Operational Creditor and on the basis of documents enclosed with the application and reply, it is found that there is existence of dispute.
The present application is dismissed.
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2020 (3) TMI 1261
Levy of Entry Tax - dredgers - ocean going vessels/ships - Machinery or not - Karnataka Tax on Entry of Goods Act, 1979 - Whether the dredger would partake the character or definition of a machinery as defined under Entry 52 of 1st Schedule of the ‘KTEG Act’ or otherwise?
HELD THAT:- Under the Central Excise Act similar issue came up for consideration before the Appellate Tribunal in the matter of Collector of Customs, Bombay v. Dredging Corporation of India Ltd. [1986 (9) TMI 333 - CEGAT, NEW DELHI], whereunder the Tribunal had held that “dredgers” are to be considered as “ocean going vessels” against which order a Civil Appeal No. 5/87 [1991 (55) E.L.T. A33 (S.C.)] had been filed by the Collector of Customs, Bombay and the said appeal came to be withdrawn by order dated 7-5-1991.
The statutory authorities under different enactments have consistently held that ‘dredgers’ are to be considered as “ocean going vessels”. In fact, the dredger which has been registered as a ship under the Merchant Shipping Act, 1958 has also been recognized by the Income Tax Department as a ship.
Thus, the question has to be answered in favour of the respondent-assessee and against the petitioner-Revenue by arriving at a conclusion that ‘dredgers’ are ‘ocean going vessels i.e., ship’ and it cannot be termed, considered or held as “machinery” referable to entry 52 of 1st schedule of KTEG Act - revision dismissed.
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2020 (3) TMI 1260
Validity of Sub-section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 - right of appeal to a Promoter - pre-conditioned by the deposit of total amount to be paid to an allottee of an apartment as may have been determined by the Authority/Adjudicating Officer under the Act, before entertaining the appeal - HELD THAT:- The argument of the learned counsel for the petitioner that the appeal under Section 43(5) of the 2016 Act is the forum of first Adjudication Officer does not appeal to us, inasmuch as the Adjudicatory Officer has been given limited powers, but while adjudicating the same, he is guided by Section 72. The Adjudicatory Officer is of the rank of a District Judge. The argument that the Regulatory Authority does not consist of persons having a judicial background is of no avail, inasmuch as at the first instance itself the Adjudicatory Officer being of the rank of a judicial officer has ample powers before whom the promoters while contesting the complaint have all the opportunity to establish their claim either way with full opportunity to the parties to rely on whatever evidence is permissible. Thus, the appeal provision is the second stage of adjudication, which, therefore, cannot be a stage where violation of fundamental rights can be urged - In the instant case, there is a further right of appeal before the High Court, after the decision of the Appellate Tribunal, in terms of Section 58 of the 2016 Act. This, however, is in terms of Section 100 of the Code of Civil Procedure, 1908, namely, giving rise to a substantial question of law.
The words “it shall not be entertained” occurring in the proviso to Sub-Section (5) of Section 43 of the 2016 Act, is a preliminary injunction. This prevents even the presentation of an appeal. The Clause “before the said appeal is heard” ultimately is a final injunction to the process of appellate exercise of jurisdiction. Conjointly, to our mind, this clearly shuts out even the presentation or physical filing of an appeal before the Appellate Authority, as the total amount to be deposited as against compensation is a sine qua non. The justification for the same by the respondents is to prevent any form of exploitation, as the promoter or the builder is in a far more dominant position financially or otherwise and the allottee being pitted against such dominants require protection of his life time savings in such investments. It is in order to protect the interest of an allottee that such stringent conditions were necessarily required after it was experienced that promoters and builders had been enriched themselves at the cost of individuals who were made to run to Courts and fight long drawn litigations to recover their priced investments.
The promoter or a builder, even if required to pay any lesser percentage, can very well raise the same argument that any amount fixed would still be either excessive or perverse. This, therefore, cannot be a ground to declare a provision ultra vires. A deposit being heavy by itself in the present case cannot be a ground to declare the provision onerous inasmuch as, as already indicated above, it is the own investment of the allottee which is sought to be secured with certain amount of compensation - There are no pleadings in the present writ petition to assume that any prejudice has been caused to the petitioner on account of any financial crisis being faced by him nor is there any material to assume that the petitioner is experiencing any indigency so as to meet this contingency of deposit. It will be open to the petitioner to plead this in appropriate proceedings, but the same is not a ground for us in the absence of any material to strike down the provision as onerous.
The provision is held to be intra vires - also it is declared that the appellate forum is not illusory nor can the condition of pre-deposit be termed as onerous - petition disposed off.
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2020 (3) TMI 1259
Eligibility of issuance of notice u/s. 143(2) - as argued notice u/s 143(2) was issued by an officer who had no jurisdiction over the assessee - Jurisdiction of the assessee lies with the ITO or ACIT - HELD THAT:- Jurisdiction of the assessee lies with the ITO and not with the ACIT for the reason that the returned income is below 20 lakh. This issue has been considered by the Tribunal in the case of Sri Krishnendu Chowdhury [2017 (5) TMI 290 - ITAT KOLKATA] wherein this circular of the Board dated 31.01.2011 was considered and we have to necessarily hold that the notice issued to the assessee u/s 143(2) of the Act by the ld. ACIT, Circle-31, Kolkata was without jurisdiction. Hence the assessment framed in pursuant to this notice is bad in law. The appeal has to be allowed on this ground.
Disallowance made beyond the CASS criteria - Disallowance of service tax payment u/s 43B - HELD THAT:- Disallowance u/s 43B was beyond the power given to the AO in the limited scrutiny proceedings. If the AO wanted to go beyond the items of limited scrutiny, a procedure has been prescribed by the CBDT. Approval of a higher authority was required to be taken. This is not done. Hence, the disallowances are bad in law. Disallowance of service tax payment u/s 43B is against the facts of the case. Thus delete the same.
Disallowance of employees’ contribution towards provident fund - The undisputed fact is that the payment was made prior to the due date of filing of return of income. Under such circumstances the payment is allowable as a deduction. This issue was considered in the case of Sh. Vijay Kumar [2019 (10) TMI 13 - ITAT CHANDIGARH] adjudicated in view of the assessee. Respectfully following the same, we delete the disallowance and allow this ground of the assessee
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2020 (3) TMI 1258
Estimation of income - Bogus purchases - Information received from the Sales Tax Department, Government of Maharashtra - as argued estimation of profit in respect of other purchases, the Assessing Officer should have applied the profit rate of 12.5% in respect of purchases made from the other two parties - HELD THAT:- Only reason the AO did not apply the profit rate @ 12.5% to the purchases made from two parties is, the assessee was unable to furnish the Bank statement reflecting the payments made towards the purchases, however, it is a fact on record that the Assessing Officer has not disputed the sales effected by the assessee. That being the case, no justification in not applying the profit rate of 12.5% in respect of the purchases as was done in case of balance purchases. Accordingly, direct the Assessing Officer to disallow 12.5% out of the purchases - Decided partly in favour of assessee.
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2020 (3) TMI 1257
Assessment u/s 153A - As per assessee no undisclosed income being unearthed during such search - absence of any addition on the basis of incriminating material having been found in course of search - HELD THAT:- No merit in objection raised by the assessee that in the absence of any incriminating material having been found in course of search, section 153A cannot be invoked because we feel that the condition precedent for invocation of Section 153A is this that there should be a search under Section 132 and initiation of proceedings under Section 153A is not dependent on any undisclosed income being unearthed during such search. This objection is rejected.
Absence of any addition on the basis of incriminating material having been found in course of search - As u/s 153A, the AO can reopen and/or assess the return with respect to six preceding years but there must be some incriminating material available with the AO in respect of the relevant year in which addition is being made. In the present case, no such incriminating material leading to undisclosed income was seized because in none of the assessment order, any addition is made by the AO on the basis of any seized material.
Judgment in the case of PCIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT]duly approved by Hon’ble apex court should be followed [2018 (7) TMI 569 - SC ORDER]
None of various additions in these five years has any connection with any incriminating material found in course of search and even if these incomes escaped assessment, action could have been taken u/s 147 or 263 as per law but in the absence of any incriminating material having been found in course of search for any year out of relevant six years, addition u/s 153A is not justified and we delete the same. - Decided in favour of assessee.
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2020 (3) TMI 1256
Best Judgement Assessment - KVAT Act - reason for completing the assessment on best of judgment basis is that the petitioner had failed to produce the audited statement along with the returns - HELD THAT:- In view of the limited relief sought and in the light of Exhibit P2- Division Bench judgment of this Court, the writ petition is disposed of directing the first respondent to consider Exhibit P4-rectification application and to pass a reasoned order thereon - In the meanwhile, recovery proceedings pursuant to Exhibit P1-order shall be kept in abeyance.
Petition disposed off.
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2020 (3) TMI 1255
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority is satisfied that,
a) Existence of operational debt is above Rs. One Lac;
b) Debt is due;
c) Default has occurred on 30/ 11/2016;
d) Petition has been filed within the limitation period as the date of default is 30/ 11/2016 and the petition has been filed on 11/07/2018.
e) Existence of any dispute, prior to the notice issued by the Operational Creditor is not found.
Hence, the present petition is admitted on 13.03.2020 - petition admitted - moratorium declared.
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2020 (3) TMI 1254
Closure of the contracts and the purchase orders - release of amounts for payment of GST as per the invoices after the closure - HELD THAT:- The closure of contracts, in case the Purchase Orders as per Exts.P1 and P2 have been duly satisfied, is to be issued by the respondents. Necessary shall be done without delay. The question as to payment of GST shall be taken up by the petitioner before the respondent, if necessary, after obtaining orders from the courts where the suits are pending.
Petition disposed off.
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2020 (3) TMI 1253
Revision u/s 263 - assessment under limited scrutiny - as argued CIT proceeded to invoke revisional power u/s.263 only on the basis of audit objection - HELD THAT:- From the copy of the notice by the AO u/s. 142(1) it is ample clear that the case of the assessee was selected for Limited Scrutiny only on two issues i.e. higher turnover report in service tax return compared to ITR and mismatch in amount paid to related persons u/s.40A(2)(b) reported in audit report and ITR.
Violation of principles of natural justice - We are not in agreement with the contention of ld A.R. that the assessee was not given due opportunity of hearing by ld. Pr. CIT as the assessee was allowed to file his replies twice personally or electronically alongwith relevant documents and explanation to the issues agitated by Pr. CIT in the notice u/.s.263 - Merely because during the intervening period, some public holidays are falling, it cannot be alleged that Ld. Pr. CIT has violated principles of natural justice. Assessee has been given due opportunity of hearing by the revisional authority. Therefore, we decline to accept the contention of assessee was not allowed due opportunity of hearing to explain his case before ld. Pr. CIT.
Ante dated order - Merely because the AO received the copy of the order on 1.5.2019 and the assessee received the copy of order through its AR on 6.5.2019, it cannot be safely presumed that the order has been passed ante dated and same was not passed on 29.3.2019 i.e. on the date of mentioning in the impugned order. We are unable to see any evidence except service of notice in the second week of May, 2019, which could show and satisfy us that Pr. CIT has passed ante dated order. Therefore, we decline to accept this contention of ld A.R. that the order has been passed ante dated and thus, both the contentions and grounds agitated by the assessee are hereby dismissed.
Sufficiency and adequacy of enquiry on the issues of ‘ Limited Scrutiny’ - AO issued notice u/s.143(2) and u/s.142(1) of the Act which were replied by the assessee - AO makes some inquiry on the issues picked up by him by way of issuing notices and taking on record replies, explanation and relevant documents submitted by the assessee in compliance to the said notice. Unable to find any deliberation in the assessment order regarding these issues which could show and satisfy us that the AO not only made sufficient and adequate enquiries on the issues for which the case was selected for limited scrutiny but also made deliberation by application of mind and thereafter adjudicated the issues by way of inserting deliberation in the assessment order.
From a careful reading of the impugned order passed as observed that the assessee company had shown gross turnover /revenue from operation of ₹ 63,97,71,157/- for financial year 2013-14 but as per statement in 26AS, the assessee had shown ₹ 16,91,82,966/- from works contract bit it had disclosed its gross receipts in the profit and loss account only ₹ 15,69,31,397/- resulting that the gross receipts is understated by ₹ 1,22,51,569/- which should have been verified by the AO during scrutiny proceedings.
AO by way of notice u/s.142(1) initiated enquiry on this issue but after filing reply of the assessee in compliance to the said notice, the AO as an adjudicator and investigator did not bother to deliberate this issue in the assessment order and in our humble opinion,until and unless inquiry started by the AO is terminated to a logical and plausible end, such kind of enquiry has to be held as inadequate and insufficient inquiry on the issues, which makes the assessment order as erroneous and prejudicial to the interest of the revenue.
Referring to service tax return income credited to P&L account was understated to the tune of ₹ 16,91,91,234/- which were not enquired by the AO.
Issue of brought forward unabsorbed depreciation and MAT credit was not under Limited Scrutiny, hence, the AO has not enquired into the matter while passing the assessment order.
When the circumstances of the case are such so as to provoke an enquiry, it is his duty to make proper enquiry. Failure to make enquiry in such circumstances would make the assessment order erroneous and prejudicial to the interest of the revenue. we concur with the submissions of Ld. CIT-DR that it was a case of lack of inquiry and there was no application of mind by AO on the issues which formed subject matter of revisional jurisdiction u/s 263. Therefore, we do not find any illegality in the action of Ld. Pr. CIT in exercising the said jurisdiction. - Decided against assessee.
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2020 (3) TMI 1252
Interest expenditure claimed u/s 57 - Addition of interest earned by the assessee out of the deposits made as per the instruction of Special Court - plea of the assessee is that there is oral contract between the parties to pay 12% per annum and whatever the interest income earned by the assessee are out of the surplus of the liquidation of certain investment - HELD THAT:- Assessee has earned interest income from the deposits in bank. These deposits are out of the balance of liquidating certain investments.
From the facts on record, prima facie, it appears that there is a nexus between the borrowed funds on which assessee has paid interest and the investment on which it has earned interest income. Therefore, the assessee should get deduction of interest expenditure to the extent of interest income earned of ₹ 3,52,622/-. It is relevant to observe, in assessee’s own case in AY 2017-18, the AO himself has allowed claim of deduction of interest expenditure to the extent of interest income earned during that year. In view of the aforesaid, the ground is allowed as indicated above.
Disallowance of interest u/s 14A - HELD THAT:- We find that the identical ground raised in the present appeal has already been decided by the Coordinate Bench of ITAT in for AY 2009-10 in Shri Sudhir S. Mehta case [2017 (12) TMI 1668 - ITAT MUMBAI] wherein the Hon’ble ITAT has allowed the ground on merit in favour of assessee.
Additional ground raised with respect to capitalization of interest - HELD THAT:- We are of the view that to the extent the interest relate to the investment, i.e. being disallowable under Section 57 will become part of cost of acquisition of shares and therefore the AO is directed to take it as part of the cost of shares for determining profit on sale of the shares. Thus, the additional ground stands allowed to that extent.
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2020 (3) TMI 1251
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - demand notice under Section 8(1) of the IB, Code - HELD THAT:- The demand notice was sent through its proprietor Ms. Shipra Somani and not in the name of M/s. Jai Laxmi Traders. Therefore, the contention of the applicant that since it was sent in the name of proprietorship firm, therefore, it is not the proper demand notice is not correct rather we are of the view that since it was sent through the Shipra Somani, hence it is maintainable and same is a demand notice under Section 8(1) of the IB, Code.
Before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under Section 8(1) of the IB, Code, then he cannot invoke the provision under Section 9, rather he can invoke the provision of Section 9 only, when CD fails to raise the existing of disputes or place the document to show that unpaid operational-creditor has been paid within ten days of the receipt of the demand notice. Therefore on the basis of aforesaid provision, we are of the view that Section 8 and 9 cast a duty upon the operational-creditor as well as CD to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the CDs can be taken into consideration.
In the present case, since it is specifically mentioned in Section 8(2) that within ten days from the date of the receipt of the demand notice, the corporate-debtor is required to bring to the notice of the operational-creditor, the existence of dispute or the documents regarding the payment of debt, therefore, we have no option, but to hold that since the corporate-debtor fails to give the reply of the demand notice and raised the disputes, hence after his appearance in response to the notice, he cannot raise it by filing the reply to the application filed on behalf of the operational-creditor.
Thus, there is no force in the contention raised on behalf of the learned counsel for the corporate-debtor, since there is an existence of disputes, hence the present application is not maintainable - application admitted - moratorium declared.
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2020 (3) TMI 1250
Exemption u/s 11 - benefit of Section 2(15) - assessee is nationally designated entity entitled to allocate domain names to its applicants who seek it in India - HELD THAT:- Additional Solicitor General has placed before us what is stated to be the litigation policy qua the disputes between the Governments and public sector enterprises which would be handled through the administrative mechanism for resolution of CPSEs disputes (AMRCD). It is stated that the policy applies to non-revenue matters and more time is required to matters regarding revenue matters.
The litigation policy is taken on record. At request, list on 13.04.2020 by which time we positively would desire the litigation policy even regarding the revenue matters to be placed before us.
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2020 (3) TMI 1249
Levy of penalty u/s 234E - intimation under Section 200A - fees u/s 200A read with section 234E levied prior to 01.06.2015 - HELD THAT:- If there is a divergence of opinion between different Hon'ble High Courts on an issue, the one in favour of the assessee needs to be followed as laid down by the Hon'ble Supreme Court in the case of Vegetable Products Ltd [1973 (1) TMI 1 - SUPREME COURT]
In light of the effective date of amendment i.e. 01.06.2015, and considering the decision of SRI. FATHERAJ SINGHVI AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (9) TMI 964 - KARNATAKA HIGH COURT] we direct the Assessing Officer to delete the fee levied u/s 234E of the Act in both the appeals of the assessee.
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2020 (3) TMI 1248
Rectification of mistake - mistake apparent on record - Grounds not adjudicated - Addition u/s 14A - whether earning of income is not essential for incurring expenditure? - whether CIT(A) has incorrectly relied on Delhi High Court decision in the case of Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] given that the issue has not reached finality, as the Hon'ble Supreme Court in case of Godrej & Boyce Manufacturing Co. Ltd., [2017 (9) TMI 1689 - SUPREME COURT] is yet to pronounce its order in the question of "Whether provision of Section 14A of the Act are applicable even when no exempt income is earned?" - THAT:- We find from the order passed in [2019 (4) TMI 1888 - ITAT VISAKHAPATNAM] that ground Nos. 5 & 6 are not adjudicated, therefore there is a mistake apparent on record, hence, it has to be recalled. Accordingly, recalled the order passed only to adjudicate the ground Nos. 5 & 6. Registry is directed to post the appeal for hearing on 16/03/2020. Misc. Application filed by the assessee is allowed.
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2020 (3) TMI 1247
Suits for possession of land - retention of possession of that land for the unexpired period of 14 years of the lease in their favour, which was for 20 years in total - time limitation - date of notice termination of lease - which Article of the Limitation Act would be applicable in the present case i.e. Article?
Whether the judgment rendered by the Land Acquisition Court on 21st August, 1961 (Ex.PW-1/12) operates as res judicata between the parties as regards the title of the suit property? - HELD THAT:- The finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of nonpayment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendant’s claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided.
If the first question is answered in the negative, whether the suit filed by the Respondent for possession is barred by time? - HELD THAT:- In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable.
The suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone.
Thus, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside.
The High Court erred in law in holding that the suit is barred by limitation in terms of Article 66 of the Limitation Act, therefore, the order passed by the High Court is clearly erroneous and is not sustainable in law.
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9911796707
