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Showing 341 to 360 of 1191 Records
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2011 (3) TMI 1499
The Supreme Court dismissed the writ petition based on the decision in Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Ltd. reported in 2009(12)SCC 419.
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2011 (3) TMI 1498
Waiver o pre deposit - Cancellation of registration certification - Manufacturing activity or not - Appeal pending for disposal before this Tribunal to determine Whether activity by the applicants amount to manufacture or not - Held that:- As the issue “whether the activity undertaken by the applicants amounts to manufacture or not” is pending before this Tribunal, prima facie, we find that the applicant should not be asked to make any pre-deposit of the demands confirmed. Therefore, we grant waiver of pre-deposit of duty, interest and penalty and stay demand thereof during the pendency of the appeal - Stay granted.
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2011 (3) TMI 1497
Re-opening of assessment u/s 148 of the Act – Held that:- Notice under section 148 of the Act has been issued on March 30, 2000, in relation to the assessment year 1989-90 – it has been issued after the expiry of a period of four years from the end of the relevant assessment year - in the light of the proviso to section 147 of the Act, in case where assessment has been framed under section 143(3) of the Act, no action can be taken under section 147, unless income has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts, necessary for its assessment for the assessment year.
There is not even a whisper to the effect that income has escaped assessment on account of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment - the requirements of the proviso to section 147 of the Act are not satisfied - in the absence of any satisfaction having been recorded by the Assessing Officer that income has escaped assessment by reason of failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration, the assumption of jurisdiction under section 147 of the Act, is invalid - The notice under section 148 of the Act cannot be sustained – Decided in favour of Assessee.
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2011 (3) TMI 1496
Whether the appellant could be made a party to the arbitration, even though the appellant was not a party to the arbitration agreement contained in clause (7) of the construction agreement dated 21.2.2008?
Held that:- Appeal allowed. 18. In view of the above, we allow this appeal and set aside the order dated 12.4.2010 of the designate of the Chief Justice, in part, in so far as the appellant is concerned. We make it clear that the appointment of arbitrator under the impugned order shall remain undisturbed in so far as the disputes between first respondent and the second respondent (developer) are concerned. We further make it clear that this order will not come in the way of first respondent making any claim or raising a dispute against the appellant or appellant making any claim or raising a dispute against the first respondent and either of them seeking recourse to arbitration in regard to such disputes.
If there had been an arbitration clause in the tripartite agreement among the first respondent, developer and the appellant, and if the first respondent had made claims or raised disputes against both the developer and the appellant with reference to such tripartite agreement, the position would have been different. But that is not so. The petition under section 11 of the Act against the appellant was therefore misconceived as the appellant was not a party to the construction agreement dated 21.2.2008.
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2011 (3) TMI 1495
Entitlement of TDS credit in respect of mobilization advance - Held that:- As per amended provisions of section 199, in sub-section 1 - Any deductions made in accordance with the foregoing provisions of this chapter and paid to the Central Government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made - Once the TDS was deducted, a credit of the same to be given to the assessees, irrespective of the year to which it relates - Following Supreme Renewable Energy Limited Vs. ITO [2008 (8) TMI 432 - ITAT MADRAS-C] - when the interest income is incidental to the acquisition and installation of an asset and is not directly liable for tax, assessee is entitled for the credit of TDS from the interest income which has been duly received by the Government - Decided against Revenue.
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2011 (3) TMI 1494
Issues:
Valuation aspect of goods manufactured by appellants under Rule 8 of Central Excise Valuation Rules, 2000 vs. contention based on Ujagar Prints case and Board Circular No. 619/10/2002-CX; Interpretation of Rule 10A for valuation of goods manufactured by job worker; Prima facie observations on statutory provisions overriding Board circular or Court decision for valuation disputes.
Analysis:
The appeal in question arose from a Commissioner's order confirming a duty demand of Rs. 73,81,722/- along with interest and penalty for the period from April 2007 to December 2008. The dispute centered around the valuation aspect of goods manufactured by the appellants for M/s. Procter & Gamble Home Products Limited on a job work basis. The department relied on Rule 8 of the Central Excise Valuation Rules, 2000, while the appellants argued that the valuation should be governed by the decision in the Ujagar Prints case and Board Circular No. 619/10/2002-CX.
Upon examination of the impugned order, it was noted that the Commissioner rejected the appellants' contentions, citing Rule 10A of the Central Excise Valuation Rules. Rule 10A specifically addresses the valuation of goods manufactured by a job worker, outlining different scenarios for valuation. The rule provides that if the circumstances do not fall under the first two clauses, valuation should be in accordance with preceding rules. It was highlighted that Rule 10A was not in force at the time of the Board circular, which meant the statutory provision would override any earlier circular or court decision on valuation matters.
The Tribunal emphasized that when a statutory provision comprehensively addresses various circumstances and includes a residuary clause, any attempt to rely on a Board circular or court decision for valuation, ignoring the applicable statutory provisions, would not be permissible. The Tribunal made prima facie observations that there was no case for a total waiver of the demanded amount under the impugned order. Consequently, the appellants were directed to deposit Rs. 45 lakh within eight weeks, with the balance amount of duty, interest, and penalty being waived until the appeal's disposal. These directions were given for compliance by a specified date.
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2011 (3) TMI 1493
Issues:
1. Imposition of penalties on three appellants by Assistant Director, Enforcement Directorate.
2. Death of one of the appellants and its impact on the appeal.
3. Allegations of outstanding amount of US dollars against the appellants for exporting goods to Hungary.
4. Contention regarding the outstanding amount being less than 5% of the invoice value.
5. Efforts made by the appellants to realize the outstanding amount.
6. RBI instructions regarding unrealized foreign exchange and their applicability in the case.
Analysis:
1. The judgment by the Appellate Tribunal for Foreign Exchange addresses the imposition of penalties on three appellants by the Assistant Director, Enforcement Directorate. The penalties were imposed based on an order dated 18-4-1991, with different amounts levied on each appellant.
2. Following the death of one of the appellants, N.K. Wasan, on 23-6-1998, the issue of abatement arose as no application for bringing his heirs was filed. Consequently, Appeal No. 253/91 was dismissed as abated.
3. The case involved allegations of an outstanding amount of US dollars against the appellants for exporting goods to Hungary. The Show Cause Notice detailed three invoices with outstanding amounts against each, leading to the initiation of the penalty proceedings.
4. A key contention raised by the appellants was that the outstanding amount was less than 5% of the invoice value, which they argued should be considered in light of RBI instructions not to take action for unrealized foreign exchange below this threshold. The appellants highlighted efforts made to recover the amount and pointed out the reduction in price by the Hungary government based on the quality of goods.
5. Efforts made by the appellants to realize the outstanding amount included approaching the RBI for writing off the said amount, sending letters to the Customs Department and Canara Bank, as well as sending fax messages. These actions were presented as evidence of the appellants' attempts to recover the outstanding sum.
6. Considering the argument that the outstanding amount was less than 5% of the invoice value and the efforts made by the appellants, the Appellate Tribunal set aside the impugned order against M/s. Ecco Wasan Shoes (P) Ltd. and Jatinder Wasan. Consequently, Appeal No. 253/91 was abated, while Appeal Nos. 254/91 and 261/91 were allowed based on the findings regarding the outstanding amount and the actions taken by the appellants in this regard.
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2011 (3) TMI 1492
Issues:
Adjudication based on input-output ratio formula for the year 2005-2006.
Analysis:
The appellant contended that the input-output ratio formula, prescribed from 2005 and applicable from 2008, should not be the sole basis for adjudication for the year 2005-2006. No adjudication was done for the subsequent years, and there was no evidence of unaccounted inputs or evasion of clearance. The appellant requested a waiver of pre-deposit during the appeal.
The Department argued that despite the State Excise Authority's control over the appellant, the appellant had control over the premises' lock & key. The Department claimed that the appellant failed to provide sufficient evidence to prove no suppression. The adjudicating authority had material supporting the case against the appellant.
After hearing both parties and examining the records, the Tribunal acknowledged the appellant's control over the lock & key. However, regarding the storage tanks of the impugned goods, the Tribunal found no basis for charges against the appellant based on the evidence presented. The Tribunal emphasized that adjudication under the Central Excise Act follows the principle of evidence. It noted that mere possession of the lock & key should not lead to charges without substantial evidence. The Tribunal concluded that the order seemed to rely on assumptions and suspicions, refraining from expressing a definitive opinion at that stage. The Tribunal directed a waiver of pre-deposit during the appeal process, leaving the matter open for further arguments from both sides.
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2011 (3) TMI 1491
Whether a jail sentence for an offence under Section 138 of the Negotiable Instruments Act, 1881, was not mandatory and it was within the discretion of the Magistrate to award a sentence of fine only, as has been done in the instant case?
Held that:- Appeal partly allowed. The gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. The learned Magistrate, in his wisdom was of the view that imposition of a fine payable as compensation to the Appellant was sufficient to meet the ends of justice in the instant case. Except having regard to the submission made that the Appellant/ complainant, is a widowed lady of advanced age, there is no other special circumstance which calls for interference with the order of the learned Magistrate, as confirmed by the High Court, with an increased fine. After an interval of 14 years, it is not inclined to interfere with the order of the High Court impugned in the appeal, except to the extent of increasing the amount of compensation payable by a further sum of ₹ 2 lakhs. The said amount of ₹ 2 lakhs in addition to the sum of ₹ 6 lakhs already directed to be paid by the Respondent to the Appellant, shall be deposited in the Trial Court within two weeks from date and upon such deposit being made, the Appellant will be at liberty to withdraw the same by way of compensation, together with the amounts already deposited, if not already withdrawn. In default of such deposit, the Appellant shall undergo one month’s simple imprisonment.
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2011 (3) TMI 1490
Discharge from the criminal case pursuant to a charge sheet filed in the Court of the Enquiry Commissioner and Special Judge, Thrissur, by the Vigilance Police Department dismissed - Held that:- Appeal allowed. the orders passed by the Enquiry Commissioner and Special Judge, Thrissur dated 29.08.2009 in CMP No 2933 of 2008 and CC No. 31 of 2005 and order of the High Court dated 12.07.2010 in Crl. RP No. 1606 of 2010 are set aside, consequently, the appellant is discharged from all the allegations leveled against him. With the abundant materials and in view of the non-compliance of statutory provisions mentioned above, we accept the claim of the appellant.
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2011 (3) TMI 1488
Tax Effect - Monetary limit of ₹ 10 Lacs for filing an appeal - Retrospective effect - - held that:- This Court in the case of Commissioner of Income Tax Delhi-III v. M/s P.S. Jain and Co. [2010 (8) TMI 702 - DELHI HIGH COURT] decided on 2nd August, 2010 has taken a view that such circular would also apply to pending cases.
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2011 (3) TMI 1487
Issues:
1. Challenge to the expulsion of a member from a club by the board of directors.
2. Jurisdiction of the Company Law Board under section 111(4) of the Companies Act, 1956.
Issue 1: Challenge to the expulsion of a member from a club by the board of directors
The petitioner filed a petition under section 111(4) of the Companies Act, 1956, seeking to declare the proceedings of the board of directors' meeting held on July 21, 2008, as illegal, invalid, and not binding. The petitioner, a member of the club, alleged that the majority of directors were managing the club in a manner detrimental to its interests. The petitioner raised objections and requested information during the annual general meeting, leading to threats of expulsion. Subsequently, the board resolved to expel the petitioner, citing abusive language and endangering the club's harmony. The petitioner contended that the expulsion was unjust, mala fide, and motivated by personal vendetta, seeking redress through the Company Law Board.
Issue 2: Jurisdiction of the Company Law Board under section 111(4) of the Companies Act, 1956
The respondent argued that the petition was misconceived and not maintainable under section 111(4) of the Act. The respondent contended that the petitioner deliberately mischaracterized the issue to challenge the board's decision to expel him. It was emphasized that section 111(4) pertains to rectification of the register of members, not expulsion cases. The respondent asserted that the petitioner's grievances were civil in nature and should be pursued through a civil suit, not under section 111(4) of the Act. The respondent highlighted that the petitioner's expulsion was in accordance with the club's articles of association and not a matter of rectification of the register of members. Consequently, the respondent argued that the petition was an abuse of process and should be dismissed.
In the judgment, the Company Law Board dismissed the petition, ruling it as not maintainable under section 111(4) of the Companies Act, 1956. The Board clarified that the provision pertained to rectification of the register of members concerning shares or interests, not expulsion cases like the petitioner's. It was emphasized that the cessation of club membership was a civil matter warranting recourse through a civil court, not within the jurisdiction of the Company Law Board. The dismissal was based on the lack of jurisdiction rather than delving into the merits of the case. No costs were awarded, with the Board underscoring that club membership disputes are civil rights issues falling under common law remedies in civil courts.
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2011 (3) TMI 1486
Whether a Public Sector Enterprise/Undertaking having dues outstanding in respect of a commercial transaction from a sick company within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985 ('the SICA') falls within the definition of "other authority" for purposes of section 19(1) of the SICA and is entitled to the benefit of sub-section (2) of section 19 of the SICA of circulation of the scheme and entitlement to obtain its consent?
Held that:- Respondent No. 1 is not entitled to be covered within the definition of "other authority" within the meaning of section 19(1) of the SICA nor can the unpaid price be categorized as financial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifices and thus is not entitled to the notice under section 19(2) of the SICA. Respondent No. 1 is, thus, liable to be treated as an 'unsecured creditor', as has been done by the BIFR, and in view of the scheme which has been duly approved in accordance with law the entitlement is restricted to 10 per cent of the principal amount being in the category of an unsecured creditor. We may notice that it was pointed out to us that the petitioner has not paid even that amount but then learned counsel for the petitioner pointed out that the said amount had to be paid at certain stages and the instalment of the same has been brought to the Court by learned counsel for the petitioner. Appeal allowed.
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2011 (3) TMI 1485
Orders dated March 15, 2004 and October 4, 2004, passed by the Company Law Board directing appellants to purchase 33 per cent. shares owned by respondent No. 1 on the basis of balance-sheet dated March 31, 1999, by the order dated October 4, 2004, the Company Law Board appointed a valuer to value the said shares.?
Held that:- The Company Law Board, in exercise of its jurisdiction under sections 397 and 398 read with section 402 of the Companies Act has the requisite jurisdiction to direct a shareholder to sell his shares to the other, although no case for winding up of the company has been made out or no actual oppression on the part of the director has been proved.
Ordinarily, therefore, in a case where a case of oppression has been made a ground for the purpose of invoking the jurisdiction of the Board in terms of sections 397 and 398 of the Act, a finding of fact to that effect would be necessary to be arrived out. But the jurisdiction of the Company Law Board to pass any other or further order in the interest of the company, if it is of the opinion, that the same would protect the interest of the company, it would not be powerless. The jurisdiction of the Company Law Board in that regard must be held to be existing having regard to the aforementioned provisions.
Keeping in view the fact that there are only two shareholders and two directors and bitterness having crept in their personal relationship, the same, in our opinion, will have a direct impact on the matter of conduct of the affairs of the company.When there are two directors, non-co-operation by one of them would result in a stalemate and in that view of the matter the Company Law Board and the High Court have rightly exercised their jurisdiction. Appeal dismissed.
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2011 (3) TMI 1484
Whether the appellant had notice of the decree and the delay has been satisfactorily explained?
Held that:- The learned single judge did not keep in view the averments in the rejoinder filed by the appellant. In any event, in view of the BIFR proceedings, the effect of the decree passed has to be considered. We are of the view that even though the delay is a long range of delay, the same has been satisfactorily explained by the appellant and the order of the learned single judge is liable to be interfered with. Appeal allowed.
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2011 (3) TMI 1483
Compromise or Arrangement - Held that:- Considering the statutory power of amalgamation is invoked in the present case under sections 391(1), 393 and 394 of the Companies Act, 1956, and having regard to the decision(s) of the Calcutta, Delhi and Bombay High Courts and the steps already taken, the proposed amalgamation should be sanctioned without requiring the transferor company to amend its memorandum by resorting to section 17 of the Companies Act.
The scheme of amalgamation at annexure A is accordingly sanctioned and the prayers (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k) are hereby granted. The transferor company will however follow the Accounting Standard 14 notified by the Central Government in formalising the amalgamation. Appeal allowed.
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2011 (3) TMI 1482
Whether petitioners Nos. 1 to 3 have fraudulently represented and deceived the company that there was no charge over the machinery and the fourth petitioner issued a no lien certificate?
Held that:- It is well-settled that one of the ingredients of cheating as defined in section 415 of the Indian Penal Code, 1860, is existence of a fraudulent or dishonest intention of making an initial promise or existence thereof from the very beginning of formation of contract.
The petitioner would state that production of no lien certificate is only a formality, but the fact remains that when they have produced such certificate there was already a lien in the property. It is submitted that under sections 125 and 126 of the Companies Act, 1956, the charges were already notified and the complainant is deemed to have noticed such charges. The decision relied on by learned senior counsel by the petitioner relates to a suit filed by a bank for recovery of the amount secured by mortgage of the property. In that context, the Bombay High Court held that a purchaser is bound to make all reasonable enquiries as to the title of his vendor and if the company had created a mortgage and such mortgage of charge is registered under section 125 of the Companies Act, 1956, the effect of section 126 of the Act would operate even on subsequent purchaser. Therefore, the deemed provision is not applicable to the case before us. Appeal dismissed.
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2011 (3) TMI 1481
Compromise and arrangement - Held that:- Mere fact, that the memorandum of association of the demerged or transferor company does not have enabling provision for arrangement, cannot be the ground to refuse sanction. There is no objection from the secured creditor, i.e. City Union Bank Limited. After going through the scheme of demerger, this court does not find any objectionable features. Accordingly, the scheme of demerger is sanctioned.
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2011 (3) TMI 1480
Compromise and arrangement - Held that:- There is no objection to the sanctioning of the scheme from the creditors or shareholders. After going through the scheme of amalgamation, this court does not find any objectionable features, in sanctioning the scheme. Accordingly, the scheme of amalgamation is sanctioned.
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2011 (3) TMI 1479
Issues Involved:
1. Validity of the decree for specific performance granted by the High Court.
2. Compliance with statutory procedures for sale of property under Section 29 of the State Financial Corporations Act, 1951.
3. Adequacy of the sale process conducted by Kerala Financial Corporation (KFC).
4. Guidelines for future sales of public property by KFC.
Detailed Analysis:
1. Validity of the Decree for Specific Performance Granted by the High Court:
The High Court of Kerala granted a decree for specific performance in favor of Vincent Paul, who had submitted a tender for the purchase of property from KFC. The Supreme Court examined whether there was a concluded contract between KFC and Vincent Paul. The Court noted that the communication dated October 31, 1988, from KFC to Vincent Paul was conditional and required confirmation from Vincent Paul within a week, which was not provided. Therefore, the Supreme Court concluded that there was no concluded contract and set aside the High Court's decree for specific performance.
2. Compliance with Statutory Procedures for Sale of Property under Section 29 of the State Financial Corporations Act, 1951:
The Supreme Court emphasized that KFC, being a statutory corporation, must follow the procedures outlined in Section 29 of the Act for the sale of attached properties. The Court observed that the State Government had not framed specific rules or guidelines for such sales, which led to procedural lapses in the sale process conducted by KFC.
3. Adequacy of the Sale Process Conducted by Kerala Financial Corporation (KFC):
The Court scrutinized the sale process initiated by KFC and found several deficiencies. KFC had invited tenders and received a bid from Vincent Paul, which was later challenged due to procedural irregularities. The Court highlighted that KFC did not follow a transparent and competitive process to ensure the best price for the property. The subsequent tender process, which received a higher bid from K.K. Ummer Farook, was also marred by pending litigation and procedural issues.
4. Guidelines for Future Sales of Public Property by KFC:
To address the procedural deficiencies and ensure transparency in future sales, the Supreme Court laid down specific guidelines for KFC:
- Advertisement: The decision to sell property must be advertised in two leading newspapers, including one in the vernacular language.
- Valuation: Obtain valuation from an approved valuer and fix the reserve price in consultation with the secured creditor.
- Methods of Sale: The property can be sold through quotations, public tenders, public auctions, or private treaties, with public tenders or auctions being preferred.
- Notice to Borrower: Serve a 30-day notice to the borrower before the sale.
- Highest Bidder: The highest bidder does not have an automatic right to the property; the sale must be confirmed by the authority.
- Best Price: Ensure maximum public participation to secure the best price for the property.
- Reserve Price: Fix the reserve price based on accurate valuation.
- Debtor's Opportunity: Provide the debtor with a reasonable opportunity to contest the valuation.
Conclusion:
The Supreme Court set aside the High Court's judgment granting specific performance to Vincent Paul and invalidated all related sale transactions. The Court directed KFC to reinitiate the sale process by adhering to the newly established guidelines to ensure transparency and fairness. Any deposits received from parties were to be returned with interest. All appeals were disposed of on these terms.
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