|
Advanced Search Options
Case Laws
Showing 341 to 360 of 1733 Records
-
2019 (6) TMI 1395
Maintainability of petition - initiation of CIRP - Amount outstanding towards the Corporate Debtor - existence of dispute between the parties or not - HELD THAT:- The apprehension of the Applicant can be taken note of till the time either the Application is admitted or rejected, the assets and the accounts of the Company need to be maintained on date except withdrawal of the legitimate expenses required for carrying on the day-to-day expenses. Therefore, this Authority in exercise of the powers conferred under Rule 11 of the NCLT Rules, 2016, restrains the Corporate Debtor and its Directors from alienating, encumbering or creating any third party interest on the assets of the 1st Respondent Company till further orders.
Matter adjourned.
-
2019 (6) TMI 1394
Maintainability of application - Initiation of Corporate Insolvency Resolution Process - default in repayment of including interest and other charges by Corporate debtor - time limitation - Petitioner has submitted that the period from 07.05.2008 till date is to be excluded, in accordance with section 15(1) of Limitation Act, 1963, for calculation of limitation on account of stay operating on the order dated 07.05.2008, the recovery pursuant to the said recovery certificates has come to a standstill.
HELD THAT:- It is settled the position of law that this Tribunal as Adjudicating Authority does not have to determine the quantum of debt at the stage of admission of the petition but only determine that the amount of debt and default is more than the stipulated threshold of ₹1,00,000/-. The Corporate Debtor has sent a letter dated 07.02.2017 offering the Petitioner an amount of ₹5,00,00,000/- as a full and final settlement of its entire due. However, the Petitioner-Bank has refused to the settlement proposal of the Corporate Debtor. This establishes the debt and default very well over ₹1,00,000/-.
Concerning the argument of the Corporate Debtor that the debt is time-barred, the Petitioner has sought exclusion of time under section 15 of the Limitation Act, 1963. We are of the view that the contention of the Petitioner is correct as there was stay over the execution of recovery certificates and due to the stay orders, the recovery certificates could not be executed, therefore the period during which the execution proceedings were stayed needs to be excluded for counting period of limitation. The period from 07.05.2008 till 21.01.2019 is to be excluded as the order dated 07.05.2008 whereby SRO directed the Corporate Debtor to deposit 50% of the decretal amount was stayed by the DJR vide order dated 28.05.2009 in Revision Application No. 231 of 2008 and subsequently vide order dated 30.11.2018 the said Revision Application No. 231 of 2008 has been sent back to the DJR for re-adjudication. As per submissions of the Petitioner, vide order dated 21.01.2019 the DJR has confirmed the action taken under notice dated 07.05.2008.
In the present petition, the debt and default are established. The Corporate Debtor could not show that either no debt of more than ₹1,00,000/- is due, payable and in default - The petition is well within limitation.
The Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete. The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the petition filed under section 7 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted.
Petition admitted - moratorium declared.
-
2019 (6) TMI 1393
Validity of assessment order passed u/s 143(3) r.w.s. 153C - AO of the searched person did not record satisfaction as required u/s 153C - HELD THAT:- From the conjoint reading of the provisions of section 153C, the decision in the case of CIT vs M/s Calcutta Knitwears [2014 (4) TMI 33 - SUPREME COURT] and CBDT Circular No.24/2015, it is very clear that even if the AO of the searched person and the other person is one and the same, then also he is required to record separate satisfaction as required u/s 153C of the Act.
In this case, on perusal of satisfaction note furnished by the Ld. DR, we find that the said satisfaction note was taken from assessment record of the assessee, which is evident from the copy of the note filed by the Ld. DR that it is an order sheet entry in the name of M/s Karnataka Strips Ltd. and the heading states that reasons recorded prior to issue of notices u/s 153C of the Act. The said satisfaction note was recorded by the AO having jurisdiction over other person i.e. in this case, the assessee, before issue of notice u/s 153C - satisfaction as required u/s 153C before transmitting books of accounts or other assets belongs to or relates to other than the searched person was not recorded by the AO of searched person as required u/s 153C consequently, the whole proceedings including assessment order passed u/s 143(3) r.w.s. 153C of the Act, is bad in law and liable to be quashed. Hence, we quashed the assessment order passed by the AO u/s 143(3) r.w.s. 153C for AY 2003-04 to 2006-07.
AY 2007-08 - As per the provisions of section 153A r.w.s 153C of the Act, AY 2007-08, ought to have been completed u/s 153C of the Act. This also means that the AO of the person searched ought to have record satisfaction as required u/s 153C that any money or bullion, jewellery or other valuable articles or thing are seized or requisitioned belongs to or any books of accounts or documents seized or requisitioned pertains or pertains to any person other than the person referred to in section 153A.
Since the AO of the searched person has not recorded satisfaction as required u/s 153C before handing over books of accounts or assets of other person, the whole proceedings including assessment order passed u/s 143(3) r.w.s. 153C for AY 2007-08 bad in law and liable to be quashed. Hence, we quashed assessment order passed u/s 143(3) r.w.s. 153C of the Act for 2007-08
-
2019 (6) TMI 1392
Loss from Future & Option and equity share trading loss - Business loss OR speculation loss - HELD THAT:- Identical issue arose before the Hon'ble Calcutta High Court in the case of Asian Financial Services [2016 (3) TMI 685 - CALCUTTA HIGH COURT] relied upon. Once it is deemed to be a normal business loss on the basis of proviso appended to Section 43(5) of the Act, a question of applying Section 73 of the Act or the Explanation thereto for the purposes of refusing loss to be set off against business income is wholly incorrect.
The Hon'ble Calcutta High Court after taking note of the decision of Hon'ble Delhi High Court in DLF Commercial (2013 (7) TMI 334 - DELHI HIGH COURT) took a distinct stand that derivatives cannot be treated at par with shares for the purposes of Explanation to Section 73 because the legislature has treated it differently. Thus, in view of the aforesaid position enunciated by the Hon'ble High Court in Asian Financial Services (supra), we find good deal of force in the case of assessee.
Disallowance of expenses u/s.14A r.w. Rule 8D - HELD THAT:- Assessee has earned dividend income claimed as exempt u/s. 10(34) of the act. Since the assessee has not substantiated with any relevant material that not any expenditure has been incurred towards earning of the aforesaid dividend income, therefore, disallowance u/s. 14A by the assessing officer is justified. Accordingly, we do not find any error in the decision of the CIT(A) on this issue. Therefore, this ground of appeal of the assessee is dismissed.
-
2019 (6) TMI 1391
Rectification of mistake - error apparent on the face of record - learned counsel submits that the Tribunal while disposing of the case has not given the opportunity and has not considered the judgments - HELD THAT:- There is no merit in the ROM application because under the garb of ROM, the learned counsel is touching the merits of the case.
-
2019 (6) TMI 1390
Appealable order or not - Section 35(B) of the Central Excise Act, 1944 - Clandestine removal - Fire fighting Vehicles - HELD THAT:- Let notice be issued to the respondents, returnable on 24.07.2019. The respondent No.2 shall be served directly. Notice to the respondent No.1 shall go through the court.
-
2019 (6) TMI 1389
Release of detained goods - Section 129 of KSGST Act - appealable order or not - availing the remedy of appeal - HELD THAT:- The writ petition is dismissed. All contentions available against Ext.P5 are preserved and dismissal of the writ petition shall not be understood as this Court expressing any view on the merits raised by the petitioner on Ext.P5.
-
2019 (6) TMI 1388
Interim protection with regard to payment under the option contract may be granted till the first hearing by the Appellate Authority - Learned Solicitor General appearing for the Securities and Exchange Board of India (SEBI) has submitted that the order dated 24.06.2019 is not appealable. HELD THAT:- Keeping in view the limited prayer made by the applicant/appellant, we dispose of the present application by directing that the applicant/appellant may file/prefer, in terms of the statement made, proceedings challenging the order dated 24.06.2019 on or before 27.06.2019 with an application for stay in accordance with law. There would be stay of payment obligation under the option contract till the first date of hearing before the relevant Forum/Court. We further clarify that in case the applicant/appellant delays or otherwise there is delay in listing of the matter, it will be open for the respondents to point this out to the appropriate Forum/Court and ask for vacation of stay. We clarify that we have not expressed any opinion on the merits and all questions are left open. It will be open to the Forum/Court to vacate, extend or modify the stay of payment order passed by us.
-
2019 (6) TMI 1387
Prayer for consideration and disposal of Ext.P7 stay petition - HELD THAT:- The writ petition is disposed of directing the third respondent to consider and dispose of Ext.P7 stay petition as expeditiously as possible, preferably within three months from the date of receipt of a copy of this judgment.
The recovery proceedings pursuant to the orders under appeal before the third respondent are stayed for three months from today.
-
2019 (6) TMI 1386
Illegal transfer of securities - clearing the trades of other parties - HELD THAT:- While the matter was being heard, we directed the learned counsel appearing for SEBI to seek necessary instructions as to how the appellants are to be protected, if they are found to be genuine investors.
When the matter was again taken up after lunch a submission was made by the learned senior counsel that they need further time to seek complete instructions in the matter and requested that the matter may be taken up tomorrow.
We adjourn the matter today and the same would be taken up tomorrow i.e. on June 26, 2019 as the first case at 10.30 a.m. We make it clear that the complete instructions be obtained from SEBI, namely, as to how the appellants and other concerned entities would be protected under the SEBI Act if they are found to be genuine investors at the end of the day.
-
2019 (6) TMI 1385
Disallowance of short term capital loss - assessment order u/s 144 - HELD THAT:- The report of the investigation wing of the Income tax Department can be a starting point for investigation into the affairs of the assessee but cannot be the whole and sole basis on which an addition can be made. Copy of the report is neither furnished to the assessee nor is placed before us for my consideration. When a copy of the report is not brought on record, the question of relying on the same to make an addition to the income, does not arise.
The assessee has purchased and sold shares through brokers. Copies of Contract notes, copies of payment through banks and other evidences were filed in support of the genuineness of the transactions. The Assessing Officer relies on the statement of the brokers and that of the entry operators but, none of these statements have been brought on record.
The contents of the so called statements are not known. SIT report relied upon by the Assessing Officer does not help the case of the revenue as it is a general report. None of the above referred reports can be the basis of additions. A statement has been made that SEBI has suspended the transactions in the scrip but contrary evidence has been brought on record by the assessee to demonstrate that the scrip is being traded even today. Thus, the basis on which the Assessing Officer has made the disallowance, cannot be upheld.
Disallowance of Interest deduction u/s 57(iii) - The claim of he assessee is upheld for the simple reason that the ld. CIT(A) agreed with the contentions of the assessee and the only ground on which he upheld the disallowance was that the loss claimed as short term capital loss was suspicious and bogus. As we have held that the assessee’s claim on the short term capital loss has to be allowed, this objection of the ld. CIT(A) cannot be sustained. Hence we allow this ground of the assessee.
-
2019 (6) TMI 1384
Sanction of Scheme of Amalgamation - proceedings pending under Section 235 to 251 of the Companies Act, 1956 and Section 217, 219, 221, 224 and 225 of the Companies Act, 2013 - HELD THAT:- It is stated in the application that there are no proceedings pending under Section 235 to 251 of the Companies Act, 1956 and Section 217, 219, 221, 224 and 225 of the Companies Act, 2013 against any of the applicant companies - It is also stated in the application that the assets of the Petitioner Companies are sufficient to meet all their liabilities and the said scheme will not adversely affect the rights of any of the creditors of any of the applicant companies in any manner whatsoever.
In the application that the Statutory Auditors of the Transferee Company have certified that the Accounting treatment proposed in terms of clause 14 of PART-V of the Scheme is in conformity with the Accounting Standards prescribed under Section 133 of the Companies Act, 2013 read with Rule 7 of the Companies (Accounts) Rules, 2014 and other Generally Accepted Accounting Principles - date of hearing of the petition filed jointly by the Petitioner for the sanction of the Scheme is fixed on Monday, the 29th July, 2019.
Petition directed to be listed for further hearing on Monday, the 29th July, 2019.
-
2019 (6) TMI 1383
Interest for delayed payment of tax - failure to pay cash component of GST due to reason that, one of their customers delaying payment on a regular basis. - section 50 CGST Act - HELD THAT:- Writ petitioner undertakes to pay the admitted liability of ₹ 229,014,673/- (as admitted in petitioner's aforementioned letter dated 29.03.2019 to the Department within one week from today i.e., on or before 20.06.2019) - On payment of aforesaid amount on or before 20.06.2019, the impugned communication dated 23.05.2019 bearing reference C.No.IV/16/30/2019-Tech-III from the second respondent to the third respondent bank will stand set aside.
The second respondent shall consider all the points raised in writ petitioner's reply dated 29.03.2019, more particularly the annexed working sheet, pass an order in a manner known to law and communicate the same to the writ petitioner under due acknowledgement within one week therefrom.
Petition disposed off.
-
2019 (6) TMI 1382
Territorial Jurisdiction - Section 23 of the Companies Act, 2013 - the Registered Office of the respective Companies fall within the purview of Registrar of Companies, Jaipur - Scheme of Arrangement by way of Amalgamation - HELD THAT:- Necessary directions issued with respect to calling, convening and holding of the meetings of the Equity Shareholders, Secured and Unsecured Creditors or dispensing ith the same as well as issue of notices including by way of paper publication.
Application allowed.
-
2019 (6) TMI 1381
Addition on account of hawala purchases - HELD THAT:- The issue of bogus purchases has recently come up for consideration in Pr.CIT Vs. Mohommad Haji Adam & Co. Vide [2019 (2) TMI 1632 - BOMBAY HIGH COURT] held that no ad hoc addition at the rate of 10% of bogus purchases is warranted. Rather the addition should be made to the extent of difference between the gross profit rate on genuine purchases and gross profit rate of hawala purchases.
Such details are not readily available with the AR as well to facilitate the calculation of gross profit rates of genuine and hawala purchases. Set-aside the impugned and remit the matter to the file of AO for applying the ratio laid down by the Hon’ble Jurisdictional High Court in the above noted case and recompute the amount of addition, if any, after allowing a reasonable opportunity of hearing to the assessee. - Appeal is allowed for statistical purposes.
-
2019 (6) TMI 1380
Seizure of vehicle alongwith the goods - consignment of betel nuts - detained on the ground that E-Way Bill was not produced when demanded - HELD THAT:- There are many larger issues involved in this petition, more particularly, with regard to the interpretation of Sections 129 and 130 of the GST Act. Many petitions have been admitted and are pending for consideration in this regard - We propose to pass an order directing the respondent authorities to release the goods on the writ-applicant depositing the balance amount, i.e. ₹ 3,57,000.
Post this matter for further hearing on 24th July 2019.
-
2019 (6) TMI 1379
Seizure of vehicle alongwith the goods - consignment of betel nuts - detained on the ground that E-Way Bill was not produced when demanded - HELD THAT:- There are many larger issues involved in this petition, more particularly, with regard to the interpretation of Sections 129 and 130 of the GST Act. Many petitions have been admitted and are pending for consideration in this regard - We propose to pass an order directing the respondent authorities to release the goods on the writ-applicant depositing the balance amount, i.e. ₹ 2,08,250.
Post this matter for further hearing on 24th July 2019.
-
2019 (6) TMI 1378
Re-credit of the amount of input tax credit to the electronic credit ledger account - rejection of refund claim - inaction on the part of the respondent authority in not passing an order in accordance with Rule 86(4) of the CGST Rules, 2017 - HELD THAT:- Having heard the learned counsel appearing for the parties and having gone through the materials on record, we propose to dispose of this writ application with a direction to both, the Deputy Commissioner of State Tax, Range-15, Surat as well as to the Assistant Commissioner of State Tax, Range- 1, Surat to look into the matter and take an appropriate decision in accordance with law within a period of 15 days from the date of receipt of writ of this order.
The Deputy Commissioner of State Tax, Range-15, Surat shall see to it that the Assistant Commissioner of State Tax, Range-1, Surat gives effect to the communication dated 02/11/2018.
-
2019 (6) TMI 1377
Jurisdiction - power of Dy. Commissioner of State Tax to issue SCN - absence of any specific notification issued by the State Government appointing the Dy. Commissioner of State Tax - Section 74(1) of the Gujarat GST Act, 2017, and Section 74(1) of the CGST Act, 2017 - scope of the expression 'for use' in the context of sale of LPG for domestic use - HELD THAT:- The writ-applicant has been able to lay down a strong prima facie case to have an interim order in its favour in terms of Para 48 (c).
Let Notice be issued to the respondents, returnable on 17th July 2019.
-
2019 (6) TMI 1376
Capital gain computation - conversion of firm into company - before conversion land was revalued and enhanced value of the capital asset credited to the current account of the partners of the firm - after conversion current account of the partners was treated as loan from the partner - violation of clause (c) of the proviso to Section 47(xiii) - whether the transaction amounts to transfer of a capital asset within the purview of Section 45 of the Act? - HELD THAT:- we are of the considered view that by crediting the enhanced value of the land, which belonged to the firm, to the current account of the partners of the firm and by treating it as loan from the partners in the accounts of the company, there was violation of the provisions contained in clauses (a) and (c) of the proviso to Section 47(xiii). Therefore, the aforesaid transaction amounts to transfer of a capital asset within the purview of Section 45 and the profits or gains obtained by the transfer of the asset by the firm to the company has to be treated as capital gains. The first and the second substantial questions of law raised are answered in favour of the revenue and against the assessee.
As department contend that, applicability of Section 47A(3) would arise only at a stage subsequent to the assessment of tax, when it is later discovered that there was violation of the provisions contained in the proviso to Section 47(xiii) we are not impressed with this contention. It is true that exemption already granted can be withdrawn by virtue of the provision contained in Section 47A(3) of the Act on discovery of violations of the conditions provided in the proviso to Section 47(xiii).
But, if the assessing authority finds at the time of assessment, that there is violation of the provisions contained in the proviso to Section 47 (xiii), then transfer of capital assets made in that manner, comes within the ambit of Section 45 and assessment has to be done accordingly. In making such assessment, the authority concerned is obliged to take note of the provisions contained in Section 47A(3) and then the liability to pay tax has to be imposed not on the erstwhile firm but on the successor company.
We find that the assessee firm is not liable to be assessed for the capital gains brought within the ambit of Section 45 as a result of violation of the conditions provided in clause (xiii) of Section 47 but the tax liability in that regard had fallen on the successor company. The third substantial question of law raised is answered in favour of the assessee and against the revenue.
Appellant firm is not liable to be assessed to tax on capital gains.
............
|
9911796707
