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Case Laws
Showing 301 to 320 of 1719 Records
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2020 (1) TMI 1423
Maintainability of application - initiation of CIRP - Corporate Debtor is a special purpose vehicle company incorporated for execution of project, that is, rehabilitation, strengthening and four laning of Srinagar to Banihal section in the State of J&K - Appellant claimed that part payment was due and the Appellant sent Notice under Section 8 of IBC on 21st January, 2019 referring to the invoices due and outstanding and sought to recover the dues for services rendered - HELD THAT:- The Adjudicating Authority erred in concluding that because Operational Creditor had moved the MSME Authorities, it showed pre-existing dispute. The Appellant had a relief open under the MSME Act and only because the Appellant moved the Authority under MSME Act, it does not mean that there is a pre-existing dispute. The dispute raised by the Appellant before the MSME was that it had dues to recover and that the Respondent has not paid. This by itself does not mean that there is pre-existing dispute as far as the Respondent is concerned.
The context of the word “dispute” in Section 18 takes colour from Section 17 of MSME Act. It is different from context of Section 5(6) read with Section 8 of IBC - At present, nothing is shown that there was any pre-existing dispute raised by the Respondent with regard to the services rendered by the Appellant. When this is so, only because the Appellant went to the MSME Authorities was no ground for the Adjudicating Authority to reject the Application under Section 9. A further communication from the Authority has been placed on record by the Appellant at Page – 89. Although the subsequent letter shows that the conciliation proceedings had yet to start.
The matter remitted to the Adjudicating Authority - Adjudicating Authority will admit the Section 9 Application and pass further necessary orders under the provisions of IBC.
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2020 (1) TMI 1422
Maintainability of application - initiation of CIRP - Corporate Debtor is a Guarantor in respect of the loan given to the Principal Borrower - Principal Borrower defaulted in making payment - whether CIRP can be triggered against both the Principal Borrower (as ‘Corporate Debtor) and ‘Corporate Guarantor on same set of claim when CIRP on Principal Borrower is already started? - HELD THAT:- Once it is alleged that the Principal Borrower has defaulted, it cannot trigger against both the Principal Borrower (as Corporate Debtor) and Corporate Guarantor (as Corporate Debtor). For same set of claim, two companies cannot go for liquidation which will be against the principles of I&B Code.
Reliance can be placed in the case of DR. VISHNU KUMAR AGARWAL VERSUS M/S. PIRAMAL ENTERPRISES LTD. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that once for same set of claim application under Section 7 filed by the Financial Creditor is admitted against one of the ‘Corporate Debtor’ (Principal Borrower or Corporate Guarantor(s)), second application by the same Financial Creditor for same set of claim and default cannot be admitted against the other ‘Corporate Debtor’ (the Corporate Guarantor(s) or the Principal Borrower).
Also, the Respondent has taken specific plea that the ‘Corporate Debtor’ is ‘Non-Banking Financial Company’ (NBFC) and do not come within the definition of ‘Financial Services’ as defined under Section 3(16) or within the definition of ‘Financial Service Provider’ as defined under Section 3(17) of the ‘I&B Code’.
Appeal dismissed.
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2020 (1) TMI 1421
Financial irregularities on the basis of forged documents by misusing his post and by providing fake loan to the relatives - cash credit limit was sanctioned without following the due procedure and without mortgage of any of the property - offences under Sections 420 and 120-B IPC - HELD THAT:- The High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC.
The order of the High Court quashing the charges against the respondents is not sustainable in law and the same is set aside - Appeal allowed.
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2020 (1) TMI 1420
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Petition filed by Operational Creditor - existence of debt and dispute or not - HELD THAT:- Operational creditor filed Form-5 and furnished the information with regard to the operational debt which is committed default by corporate debtor - The notice was served on the corporate debtor. Postal track record is filed through Memo. PCS contended that corporate debtor has not replied or failed to defend. The claim is within limitation. There is no representation or reply by the Corporate Debtor. was served with notice before admission. However, corporate debtor remained absent and it did not contest the claim.
The operational creditor has been able to establish un disputed operational debt against corporate debtor and the corporate debtor has been in default with regard to the payment of dues to the operational creditor amounting to ₹ 2,30,62,247.90/ The Operational creditor is able to establish through documents that corporate debtor committed default of operational debt and there is no pre-existing dispute. Thus, this Petition is complete and is liable to be admitted.
Petition admitted - moratorium declared.
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2020 (1) TMI 1419
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of its dues - corporate debtor has filed a reply to the petition stating therein that the goods supplied by the operational creditor were defective and not of standard quality - service of demand notice - Cheque stated to have been given as security - rebuttal of presumption or not - existence of debt and dispute or not - HELD THAT:- Since the e-mail dated January 16, 2014 specifically notes that "in the last batch of carbon fibre reinforced laminates, several imperfections were found", it can only be taken that the other consignments were defect-free. Further, in the rejoinder, the operational creditor has taken a specific stand that the issue of defective quality of supplies has been raised in only one out of twenty-seven consignments, and that this issue was also resolved. Even if the issue is assumed to be unresolved, this would only cover one consignment, and there is no reason why the other consignments ought not to be paid for, especially when seen in the context of the specific stand of the operational creditor that after the issue raised in the e-mail of January 16, 2014 four more consignments were supplied to the corporate debtor.
Cheque stated to have been given as security - HELD THAT:- This cannot be taken to be a valid defence. In terms of section 139 of the Negotiable Instruments Act, 1881, there is a presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. While this is no doubt a rebuttable presumption, the presumption stands unless the contrary is proved. The burden of proof is on the corporate debtor.
The petition made by the operational creditor is complete in all respects as required by law. It clearly shows that the corporate debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the petition - Petition admitted - moratorium declared.
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2020 (1) TMI 1418
Striking off of the name of the M/s Achates Developers Private Limited, from the register of companies - section 252 of Companies Act - HELD THAT:- The income tax department is an aggrieved party within the meaning of section 252(1) as it has to recover taxes payable by respondent company and great prejudice will be caused to Revenue if the name of the respondent company is not restored back. In the above circumstances, this appeal is allowed. The Registrar of companies is therefore directed to restore the name of the Respondent Company in their Register and also proceed to take such other and further penal action against the respondents in accordance with the statutory provisions. The name of the Respondent Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.
Application allowed.
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2020 (1) TMI 1417
Rectification of mistake - rental income for alternate accommodation remained enhancement - HELD THAT:- From Misc. application filed by the assessee found that grounds No. 5 and 6 raised by the assessee with regard to enhancing the assessment by the ld. CIT(A) on account of rental income for alternate accommodation remained to be decided while passing the order, this amounts to mistake apparent from the record. Accordingly, we recall the order of the Tribunal dated 12/03/2019 to the limited extent of deciding grounds No. 5 and 6 regarding enhancement of assessment on account of rental income for alternate accommodation of ₹ 2,60,000/-.Misc. application of the assessee is allowed.
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2020 (1) TMI 1416
Maintainability of appeal by revenue - low tax effectt - HELD THAT:- Undisputedly, the tax effect involved in this appeal is less than the monetary limit prescribed by the recent CBDT Circular No.17/2019 [F.No.279/Misc.142/2007-ITJ (Pt)] dated 08th August, 2019 read with Circular No.3 of 2018 dated 11.07.2018 for filing of appeals before the Tribunal by the Department. The CBDT vide circular dated 08-08-2019 (supra) has amended Para 3 of Circular No.3 of 2018 dated 11-07-2018 thereby enhancing monetary limit of tax effect from ₹ 20 Lakhs to ₹ 50 Lakhs for filing of appeals by the Department before the Tribunal. Thus, without going into merit of the issues raised in the appeal, in view of the CBDT Circular (supra) the present appeal of the Revenue is dismissed on account of low tax effect.
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2020 (1) TMI 1415
Maintainability of appeal by revenue - low tax effect - HELD THAT:- Undisputedly, the tax effect involved in this appeal is less than the monetary limit prescribed by the recent CBDT Circular No.17/2019 [F.No.279/Misc.142/2007-ITJ (Pt)] dated 08th August, 2019 read with Circular No.3 of 2018 dated 11.07.2018 for filing of appeals before the Tribunal by the Department. The CBDT vide circular dated 08-08-2019 (supra) has amended Para 3 of Circular No.3 of 2018 dated 11-07-2018 thereby enhancing monetary limit of tax effect from ₹ 20 Lakhs to ₹ 50 Lakhs for filing of appeals by the Department before the Tribunal. Thus, without going into merit of the issues raised in the appeal, in view of the CBDT Circular (supra) the present appeal of the Revenue is dismissed on account of low tax effect. Appeal of the Revenue is dismissed.
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2020 (1) TMI 1414
Maintainability of appeal - low tax effect - Revenue contended that the appeal of the Revenue should not have been dismissed considering the fact that the appeal falls in the exceptions mentioned in clause (e) of para 10 of the CBDT’s Circular No.03/2018 dated 11.07.2018 - assessee vehemently justified the order of the Tribunal dismissing revenue appeal and submitted that the sales tax related cases are not to be excluded from the scope of the CBDT’s Circular (supra) relating to the tax effect - HELD THAT:- After hearing both the parties and on perusing the said CBDT’s Circular (supra), we are of the opinion that the list of agency mentioned in the said para of the Circular of CBDT does not contain the sales tax department as an exception. Accordingly, the decision of the Tribunal holding that the appeal of the Revenue comes under the low tax effect does not require any rectification. Considering the same, the Miscellaneous Application of the Revenue is dismissed.
In the result, the Miscellaneous Application filed by the Revenue is dismissed.
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2020 (1) TMI 1413
Assessment order u/s.144 - Ex-parte assessment order - HELD THAT:- We find that the ld. CIT(A) has passed the impugned order ex-parte. Even on perusal of the assessment order, we find that the person, who has passed the assessment order u/s.144 of the Act being the Additional Commissioner, has also passed the impugned order being the Commissioner of Income Tax (Appeal).
As per the objection raised by the ld. AR assessee during the course of hearing and considering the facts and circumstances of the case, we restore the entire matter to the file of CIT(A), other than the CIT (Appeal), who has passed the impugned order, and direct to pass a speaking and reasoned order considering the submissions of the assessee, after providing sufficient opportunity of hearing to the assessee. The assessee is also directed to cooperate with the CIT(A) positively for early disposal of the case. Appeal of the assessee is allowed for statistical purposes.
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2020 (1) TMI 1412
Dowry - Harrasment with demands for money and transfer of land in their names - allegation is that the appellant and his family refused to take the complainant’s daughter to the United Kingdom where her husband was staying unless her Stridhana property was transferred in their names - HELD THAT:- In the present case, the investigating officer upon receipt of additional information about the alleged commission of offences under Sections 406 and 420 by the appellant, obtained permission for further investigation. Statements of witnesses recorded under Section 161 of CrPC indicated that the appellant had raised a demand of ₹ 5,00,000/- for securing a doctor’s job for the complainant’s daughter in the United Kingdom. After investigation, an additional charge-sheet was filed on 12 April 2013 against the appellant for offences under Sections 406 and 420 of the IPC. This is evident from the counter affidavit filed by the fourth respondent before this Court which contains the docket order of the Additional Junior Civil Judge, Sattenapalli - It is evident from the record that the earlier Additional Junior Civil Judge perused the additional charge-sheet and took cognizance of offences under Sections 406 and 420 of the IPC. However, at the time of framing charges, the additional charge-sheet was not brought to the notice of the court and the framing of charges against the appellant under Sections 406 and 420 was not considered. Therefore, the appellant was charged only for offences under Section 498A of the IPC along with Sections 3 and 4 of the Dowry Prohibition Act. It was when an application under Section 216 of CrPC was filed by the public prosecutor on 13 February 2017 that it was brought to the notice of the Trial Judge that charges under Sections 406 and 420 were not framed.
Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words “at any time before judgment is pronounced” in Sub-Section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence - The only constraint on the court’s power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Sub-Section (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused.
The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference.
Appeal dismissed.
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2020 (1) TMI 1411
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - delay in arranging the funds - both the parties agreed to settle the issue amicably - existence of debt or not - HELD THAT:- The petitioner has already paid 50 per cent. of the amount due in respect of the first proforma invoice and submitted that they are ready to settle the remaining 50 per cent. on submission of the full and final bill by the petitioner. In view of this, the claim in this petition to the extent of ₹ 2.80 crores (excluding taxes) is not correct and the liability is only to the extent of ₹ 1.50 crores out of which a sum of ₹ 75 lakhs were already paid and the corporate debtor is ready and willing to settle the balance ₹ 75 lakhs on raising of a final invoice by the petitioner. Hence, there is no debt as claimed by the petitioner and the same is hit by section 5(6)(a) of the Code.
The contention of the corporate debtor that there is a delay in arranging the funds is right in view of the fact that the funds were not arranged, as agreed within 6 months of signing of the engagement letter. Hence, there is a clear deficiency in the service provided by the petitioner, which will squarely fall under the ambit of section 5(6)(b) of the Code, as held by the hon'ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT].
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2020 (1) TMI 1410
E-Filing appeal - delay in filing the appeal - Non filling of appeal electronically within the period of limitation - prayer made by the assessee to reckoned the date of filing as on date on which the appeal was actually filed - According to the Ld. D.R., it is a mandatory requirement of law to e-file the appeal with effect from 01.03.2016 admittedly, the appeal was filed only on 01.07.2019, after the dismissal of appeal by CIT(Appeals) - HELD THAT:- This Tribunal finds that the appeal was manually filed on 22.04.2016. The appeal was e-filed on 01.07.2019. In the meantime, the appeal filed manually on 22.04.2016 was dismissed. During the transition period from manual filing of appeal to e-filing,the assessee was confused. The appellate remedy provided under the scheme of the Income-tax Act cannot be brushed aside merely because there was a technical breach in the procedure of filing the appeal. The CBDT ought to have provided sufficient time for switch over to e-filing of appeal.
When technicality and substantial justice are pitted against each other, the substantial justice has to be preferred. This being a proceeding under the Income-tax Act for computing the taxable income, this Tribunal is of the considered opinion that the appeal e-filed on 01.07.2019 has to be disposed of on merit. Accordingly, the delay in efiling the appeal is condoned and the impugned order of the CIT(Appeals) is set aside. The CIT(Appeals) shall consider the appeal e-filed on 01.07.2019 on merit and dispose the same in accordance with law, after giving a reasonable opportunity to the assessee.
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2020 (1) TMI 1409
Detention of goods - detained merely on the reasoning that the vehicle number shown in the e-way bill is not matching with the actual vehicle number - HELD THAT:- The Learned advocate appearing for the registered owner of the vehicle, who is the petitioner in the connected W.P. (C) No. 935/2020 would submit on the basis of instructions of the party that his party is willing that his seized vehicle may be released to the petitioner or his authorized representative. Accordingly, it is ordered that the seized vehicle and the goods detained as per the impugned exhibit P2 order shall be forthwith released by the first respondent to the petitioner or his authorised representative, in case the bank guarantee to the tune of higher of the abovesaid two amounts is duly furnished on behalf of the petitioner.
Petition disposed off.
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2020 (1) TMI 1408
Revision u/s 263 - Bogus purchases u/s 69C - As per CIT AO should have made a disallowance of the entire fictitious purchases made through accommodation bills and not simply making a disallowance to the extent of 3% of the bogus purchases - HELD THAT:- As relying on case of Om Foregoing & Engineering P Ltd [2017 (12) TMI 1000 - ITAT KOLKATA] there is no error, in so far as it is prejudicial to the interest of the revenue in all these assessment orders so as to empower the ld. PCIT to invoke his power u/s 263 of the Act. There is no failure to make enquiry on the applicability of section 69C
We hold that there is no error, in so far as it is prejudicial to the interest of the revenue in all these assessment orders so as to empower the ld. PCIT to invoke his power u/s 263 of the Act. There is no failure to make enquiry on the applicability of section 69C.
In fact the view taken by the ld. Assessing Officer is supported by the judgment of the Hon’ble Calcutta High Court in the case of PCIT vs. M/s Subarna Rice Mill [2018 (8) TMI 1475 - CALCUTTA HIGH COURT] - Thus we hold that these orders passed u/s 263 of the Act are bad in law and all the orders passed by the PCIT u/s 263 are hereby quashed. - Decided in favour of assessee.
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2020 (1) TMI 1407
Oppression of Minority - whether the acts of Respondents as alleged by the Petitioners would indeed constitute an act of oppression against the minority shareholders which calls for the intervention of this Tribunal?
Sree Visakh Theatre - HELD THAT:- Sree Visakh Theatre was constructed during the period 1976-1978 by Respondent Nos.2 and 4. The Petitioners became shareholders of the Respondent No.1 Company in the year 2009, long after Sree Visakh Theatre was constructed. From the Records before us it is observed that Sree Visakh theatre run by R2 and R4 as a partnership firm approved by the Board of Directors of the R1 Company and ratified by the AGM. The Petitioners alleged that the revenues of Sree Visakh theatre are not being recorded in the Respondent No.1 Company, and R2 and R4 are enjoying the fruits of the revenues, without providing any material evidence to support their allegation. From the records before us, we have not come across any such allegation of this nature from any other shareholder or director in the last 40 years of existence of Sree Visakh theatre - It was only due to some miscommunication that these were not made available to auditors for verification at that point of time. We have considered both the averments of the counsels in depth. We came to the conclusion that in the absence of credible evidence offered by the petitioners to support their allegation, the petitioners have failed to prove that the Respondent No.2 and 4 have illegally constructed Sree Visakh theatre and enjoying the property at the cost of the Respondent No.1 Company.
Merry Land Studio - HELD THAT:- The counsel for the Respondents have clearly mentioned in their counter that the revolutionary technological changes in the mode of film production, eroded its revenue generation prospects. In the absence of credible evidence offered by the petitioner we have no other option except to go with the statement offered by Respondents that they are making payments whenever they are using Merry Land Studio facilities. Further the records before us have not showed any such allegation by any of the shareholder/director on the affairs of Merry Land Studios after 2012. As such we are not willing to accept the contention of the petitioners on this issue.
SreeKumar Theatre - HELD THAT:- The Counsel for the Respondents stated that the allegation is completely false and that the R8 to R10 are not using the Sree Kumar theatre facilities for their personal businesses. Further, the counsel for the respondents also stated that Saran Creations is a serial production house and its shooting and other activities are held in different locations. Respondent No.9 is not connected to Visakh Outdoors, which is actually owned by Respondent No.2. Respondent No.10 is not in occupation of any part of Sree Kumar theatre. In this issue also, we have not come across any allegation on this count from any quarter in the Respondent No1 Company - the three issues allegations raised by the petitioners are not supported by any documentary evidence. Under such circumstances, we cannot decide that there is oppression and mismanagement in the Respondent Company against minority shareholders, as alleged. Therefore, the allegations are dismissed.
Loan to director - HELD THAT:- Respondent No.1 Company being a Private Limited company enjoy certain flexibilities as regard to loan to Director under Section 185 of Companies Act 2013. As such, the said Loan to Director (₹12,00,000/-) which appeared in the Financial Statement (2015-2016) of the Respondent No.1 Company and approved by the Board of Directors, is not in violation of corporate governance as alleged by the Petitioner. Therefore, we are not in agreement with the stand taken by the Petitioners in this matter also.
Remuneration to Directors - HELD THAT:- The profit of the Respondent No.1 Company have gone-up substantially from ₹ 42,15,993/- (2012-2013) to ₹ 2,73,37,343/- (2016-2017), the dividend declared also recorded a substantial jump from 160% in 2012-2013 to 200% 2016-2017. When compared with the profit generated under the direction and supervision of the Board of Directors, the remuneration increased is minimal. As such we are of the view that the petitioners are levelling such allegations without taking into account the factual financial performance of the Respondent No.1 Company.
Share Transfer - HELD THAT:- The AOA clearly shown that personal representative of a member or beneficiary under the will of a member are entitled for transfer of shares from the company. In the instant case late Subramoniam Shakthidar passed away intestate and his 650 shares transmitted to the legal heirs of the deceased member as per Law of Succession. As the transfer of shares is distinct from the Transmission, in the instant case the company has rightly followed the transmission of shares of the deceased member to the legal heirs - As regards transfer of shares to L. Priyadarsini, we firmly believe that it is the personal and independent decision of Respondent No.7 approved by the Board of Directors as laid down in the AoA. In this issue also, we have no reason to interfere in the matter, as Respondent No. 7 has firmly affirmed in her counter that it is her personal choice to whom the shares are to be transferred. In this case Respondent No.1 company has rightfully transferred the shares as requested by Respondent No.7. Therefore, Respondent No.1 Company cannot be held for the personal choice of the mother of the Petitioners.
The petitioners become shareholders in the year 2009 by virtue of transfer of shares, by way of gift from their mother. The petitioners are raising allegations digging issues from the year 1978 onwards after attaining the current status as shareholders in the company. It may be noted that the Respondent No.7 who is the mother of the petitioners, had also supported the present Board of Directors of the Respondent No.1 Company; but not supported the stand taken by the petitioners. This amply proves that the petitioners have filed this petition with their personal agenda of trying to get a berth in the Board of Directors and to fullfil their wish to be part of the management of the Respondent No.1 Company - the petitioners are dragging this Tribunal into their personal family disputes forgetting the fact that this is not the forum to settle such matters.
Thus, there is no merit whatsoever in the averments made by the petitioners in regard to the acts of oppression and mismanagement in the Respondent No.1 Company and, therefore, doesn’t warrant any intervention by way of an order under Section 242 of the Companies Act, 2013 as prayed for - petition dismissed.
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2020 (1) TMI 1406
Addition u/s 36(1)(va) – PF deposited beyond the time prescribed – Scope of section 43B of the Act – Permission for delayed payment as to Employer’s contribution OR employee’s contribution – where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income u/s 139(1), cannot be disallowed u/s 43B or u/s 36(1)(va) - HELD THAT:- Petitioner, on instructions issued by the Department of Revenue, Ministry of Finance vide F.No. 390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this special leave petition along with pending applications therein due to low tax effect.
Special leave petition and pending applications are dismissed as withdrawn, leaving question(s) of law open.
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2020 (1) TMI 1405
Black Money (Undisclosed Foreign Income and Assets) Imposition of Tax - imposition of tax and summons issued challenged - HELD THAT:- As respondent has filed the counter affidavits and stated that as per the Notification issued by the CBDT, the respondent is not having jurisdiction to issue notice and proceed under the said Act and therefore the proceedings are void ab intio and infructuous. The competent authority [DDIT (Inv), Unit-2(3), Chennai] has already issued notices to the petitioner and thus the writ petition has to be dismissed.
In view of the above, both the Writ Petitions are allowed.
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2020 (1) TMI 1404
Interpretation of statute - Whether the Statutory Notification can be amended by another Statutory Notification or also can be amended by a clarificatory circular, such as Circular No.1/20 19 dt.02.05.2019? - HELD THAT:- Prima fade, the Circular No.1/2019 dt.02.05.2019, which was relied upon by the 3rd respondent in the impugned order dt. 13.11.2019 (Order-in- Original No.91/2019) cannot be said to have amended the Notification published in the Gazette of India vide S.O.No.2357(F) dt.03.10.2012 notifying the Electric and IT Goods (Requirement of Compulsory Registration) Order, 2012. The said notification only mandated compulsory registration for notified product categories including Printers and Plotters, but did not deal with Multi- function Devices, which by virtue of Circular No.1/2019 dt.02.05.2019 are now treated in the category of Printers and Plotters notified under the above order attracting the requirement of compulsory registration.
Thus, the Statutory Notification can only be amended by another Statutory Notification and not by a clarificatory circular, such as Circular No.1/20 19 dt.02.05.2019 - there shall be interim direction to respondents 2 to 4 to release MFDs imported vide Bill of Entry No.42607 19 dt.29.07.2019 and Bill of Entry No.4690645 dt.29.08.2019, respectively, on payment of duty within a period of two (02) weeks from today.
List on 18.02.200 for counter of respondents.
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