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Showing 381 to 400 of 1962 Records
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2017 (3) TMI 1583
Oppression and mismanagement - applicability of limitation/delay and latches in the instant case - Held that:- Considering the pleadings, the documents, arguments and legal decisions filed by both side, as applied to the facts and circumstances of the case, find that the petitioner has not been able to controvert the contention of the respondent(s).
While exercising the equitable jurisdiction, find that the equity is in favour of the respondent(s). Rather, it is conduct of the petitioner, as discussed above, which has been prejudicial to the interest of the functioning of the Company. Therefore, it would be highly unjust to grant the prayers sought by the petitioner. Such a relief, if granted, could highly be oppressive to the respondent(s).
In the present case, the conduct of the petitioner shows that they have not come with clean hand, in the sense, they had acted in a manner prejudicial to the interest of the company as well as shareholdings and it is they who has acted in violation of mutual trust and confidence.
In this view of the matter, on facts and in law, it is noted that in the present case, the petition suffers from delay and latches. The delay and latches do apply which start from the date of knowledge. The doctrine of laches is based on equitable consideration and depends on general principles of justice and fair play. Thus petition has no merit and is liable on account of huge delay and laches and as also frivolous. It is dismissed accordingly.
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2017 (3) TMI 1582
CENVAT credit - inputs found short - Held that: - on lack of any evidence of clandestine removal, the reasonableness of the explanation for the shortage which was found to be well within normal tolerance limit - grounds of appeal fail to specify any part of the show cause notice that can controvert the claim of process loss which is inherent in any manufacturing activity - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1581
Penalty u/s 271(1)(c) - whether when substantial question of law has been framed and admitted, therefore, the issue has become debatable, therefore, penalty is not leviable? - Held that:- The Hon’ble jurisdictional High Court in CIT Vs Smt. Kaushalya (1995 (1) TMI 25 - BOMBAY High Court) while dealing with the similar ground about the limb of charge, whether mere mistake in language used or mere not striking off of inaccurate portion cannot by itself invalidate notice issued under section 274 of the Act. The language of the section does not speak about the issuance of notice. All that is required is that the assessee be given an opportunity of show cause. The issuance of notice is an administrative device for informing the assessee about the proposal of levy of penalty in order to enable him to explain why it should not be levied against him. If it is taken for the sake of argument that mere mistake in the language in the notice for non-striking off of ‘inaccurate particular’ or marking on ‘concealment of income’ portion cannot by itself invalidate the notice. Entire facts and backgrounds thereof are to be kept in mind. Every concealment of fact may ultimately result in filing of or furnishing inaccurate particular. It was further argued that no statutory notice has been prescribed in this behalf in the Income tax Act.
The judgment of Hon’ble Jurisdictional High Court in CIT Vs Kaushalya (supra) is still having a binding force on us. Thus, with utmost regards to the judgment of Karnataka High Court in CIT Vs Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT ) we are bound to follow the judgment of jurisdictional High Court in CIT Vs Kaushalya (supra). - Decided against assessee.
Penalty u/s 273 - assessee contended that no section was mentioned in the penalty order, therefore, the penalty has to be deleted - Held that:- On perusal of the notice issued u/s 273 r.w.s 274, (page-35 of the paper book), it was fairly agreed by the ld. counsel for the assessee that section 273(2)(b) of the Act has been mentioned in the aforesaid notice. Since, we have deliberated upon the facts/case laws in detail, while deliberating/adjudicating the appeals of the assessee u/s 271(1)(c) of the Act in earlier paras of this order, therefore, considering the elaborate discussion made therein and the factual matrix available on record, on identical reasoning, we find that the assessee neither paid the advance tax nor filed the estimate of advance tax payable in terms of section 209A of the Act, the assessee failed to fulfill the statutory obligation. The original return was accepted u/s 143(1) of the Act and as a result, effectively, the subsequent assessment is the only assessment in the case of the assessee. Even bona-fide belief is not borne out of facts. Considering the totality of facts, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal), thus, these appeals are also dismissed.
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2017 (3) TMI 1580
Validity of assessment - addition on account of disallowance of 100% expenditure and on account of unexplained purchase u/s. 69C - Held that:- In the present case, it is noticed that the assessments framed by the Assessing Officer for the assessment years 2003-04 to 2008-09 were held to be nullity [2014 (4) TMI 554 - ITAT DELHI] as held Assessment upon a dissolved company is impermissible as there is no provision in the I.T. Act to make an assessment upon a non-existent company. On amalgamation, the company seizes to exists in the eyes of the law - Thus, assessment upon a dissolved company is impressible - Decided against revenue
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2017 (3) TMI 1579
Order of the Hon'ble High Court of Madras has directed Tribunal to hear the appeal for which the matter has been fixed today - Appellant is not prepared to argue today - MA is disposed with a direction to the appellant that appeal shall be heard on 08-03-2017.
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2017 (3) TMI 1578
Valuation - includibility - whether defence supply shall be includible in the clearances in absence of any law to such exclusion while computing the aggregate value for SSI benefit? - Held that: - Law is well settled that without any evidence demonstrating that price was inclusive of duty, no such relief can be granted - appeal dismissed.
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2017 (3) TMI 1577
Charging of interest u/s 234A, 234B and 234C as calculated after taking in account of TDS deductible at source - Held that:- Respectfully following the decision of the Co-ordinate Bench of the Tribunal in assessee’s own case, we restore the issue to the file of the AO with a direction to recompute the interest u/s 234A, 234B and 234C after taking into account the tax deductible on total income of the assessee by affording fair and reasonable opportunity of being heard to the assessee.
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2017 (3) TMI 1576
Levying of penalty u/s 271(1)(c) - defective notice - Held that:- In the notice dt.31.12.2009 issued u/s 274 of the Act, AO has not struck off the inapplicable portion i.e., as to whether it was the case of concealment of particulars of income or furnishing of inaccurate particulars of income. We further find that in the penalty order passed u/s 271(1)(c), AO has recorded the satisfaction by stating that assessee has furnished inaccurate particulars of income and that Ld. CIT(A) while confirming the penalty order has concluded that it was a case of concealment as well as furnishing of inaccurate particulars of income. Thus from the perusal of notice issued u/s 274 r.w.s 271(1)(c) it is seen that AO is not clear as to under what charge penalty has to be levied u/s 271(1)(c) of the Act as the notice is vague as it fails to clearly spell out the charge of levy of penalty. - Decided in favour of assessee.
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2017 (3) TMI 1575
TPA - computation of PLI - excluding losses in Solar Trial in computing PLI of manufacturing segment and not identifying separate segment in respect of Solar Test - Held that:- There is no need to interfere with the order of the DRP with regard to computation of PLI. It had rightly held that ST activity was an extraordinary item and was not part of the regular business of the assessee and that there was impairment of assets. Therefore, upholding the order of the DRP, we dismiss both the grounds.
Claim for set off of brought forward unabsorbed depreciation - Held that:- Where there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation available to an assessee on the 1st day of April, 2002 (the assessment year 2002-03), will be dealt with in accordance with the provisions of section 32(2) as amended by the Finance Act, 2001. And once Circular No. 14 of 2001 clarified that the restriction of eight years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from the assessment year 1997-98 up to the assessment year 2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by the Finance Act, 2001, and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever. See General Motors India Private Ltd. case [2012 (8) TMI 714 - GUJARAT HIGH COURT ] - Decided in favour of assessee.
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2017 (3) TMI 1574
Initiating insolvency process - proof of existence of dispute - non service of notice - Held that:- Primarily to sustain the transaction of loan as given by the applicant to the respondent, the applicant seeks to rely on a Memorandum of Understanding (MOU) as entered into between two corporate entities. Curiously the said MOU does not contain a date as to when the MOU was executed. Further the MOU also seems to be not conclusive from the following words as found in the last paragraph of the said MOU as reproduced hereunder:
"That the parties has agreed to enter into a detailed exhaustive agreement later on" (emphasis supplied).
However no such further agreement as contemplated by the above terms contained in the MOU has been produced before us. Further the applicant as a Non Banking Financial Company is also required to comply with the provisions of Section 186 of the Companies Act, 2013 in relation to the loan transaction termed as Inter Corporate Deposit between two companies in relation to amounts made available as loan subsequent to 01.04.2014. In any case the applicant has also failed to furnish the necessary Board Resolution for granting the loan to the respondent all of which literally clouds the transaction of loan itself.
Even in relation to the service of notice there seems to be glaring anomaly as both the speed post and courier through which the notice dated 13.01.2017 seems to have been dispatched seems to have not been delivered or delivered at some other place. However Annexure XII which is claimed to be acknowledgement of liability alleged to have been issued by the respondent reflects the same address to which the notices were sent by the applicant but from which address the postal authorities report that the addressee (meaning the respondent) had moved thereby casting a cloud on the application itself as that of collusive as between the parties.
Taking into consideration all the above, we are unable to feel persuaded to admit the application
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2017 (3) TMI 1573
Corporate Insolvency Resolution Process - Held that:- As per section 60 of IBC this Tribunal has been designated as adjudicating authority in relation to corporate persons. Further as per clause (c) sub-section (5) section 60, this tribunal is enjoined with the jurisdiction to entertain or dispose off any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this code. Sec 255 of IBC provides that the Companies Act 2013 shall be amended in the manner specified in the eleventh schedule to IBC and a perusal of the eleventh schedule of IBC discloses the amendments made to the Companies Act 2013 of several provisions though not section 433 of the Act wherein specifically the provisions of the Limitation Act 1963 (36 of 1963) is made applicable and that it shall, as far as may be apply to the proceedings or appeals before the Tribunal or Appellate tribunal as the case may be. Hence in the absence of any specific bar in the IBC to the application of the Limitation Act, 1963 coupled with the provisions of Sec 433 of the Act as contained in the Companies Act 2013 which makes Limitation Act applicable to this Tribunal the debt as claimed by the petitioner is barred by limitation and hence cannot be the basis for invoking IBC before this Tribunal.
In relation to the decree obtained from the civil court in relation to the amounts claimed, we are of the considered view that the petitioner is well within its rights to have it executed before the appropriate civil courts meant for execution and that this Tribunal cannot be converted into an executing court of the above said ex parte decree obtained.
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2017 (3) TMI 1572
Constitutional validity of section 234E challenged - Fee for default in furnishing TDS return/statements - as per assessee “fee” is known in the commercial and legal world to be a recompense of some service or some special service performed, and it cannot be collected for any dis-service or default - Held that:- Due to late submission of TDS statements means the Department is burdened with extra work which is otherwise not required if the TDS statements were furnished within the prescribed time. This fee is for the payment of the additional burden forced upon the Department. A person deducting the tax (the deductor), is allowed to file his TDS statement beyond the prescribed time provided he pays the fee as prescribed under section 234E of the Act. In other words, the late filing of the TDS return/statements is regularized upon payment of the fee as set out in section 234E. This is nothing but a privilege and a special service to the deductor allowing him to file the TDS return/statements beyond the time prescribed by the Act and/or the Rules. We therefore cannot agree with the argument of the petitioners that the fee that is sought to be collected under section 234E of the Act is really nothing but a collection in the guise of a tax. See Rashmikant Kundalia Vs. Union of India [2015 (2) TMI 412 - BOMBAY HIGH COURT] - Decided against assessee.
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2017 (3) TMI 1571
Clandestine removal - mode of transport was bogus and fake documents were created to cause prejudice to Revenue - whether there was actual manufacture of the goods cotton cone/cheese yarn made by the appellant when there were evidences on record to show that mode of transport used were false and described vehicles were not registered with the Transport Authority? - Held that: - When the appellate Commissioner found that there were falsification of records and appellant has no material to discard the allegation of Revenue, he held that there was clandestine clearance of the goods and there was neither any job working done nor any job worked goods cleared. We are not able to find any material from the grounds of appeal of the appellant to disturb such finding of the ld. Commissioner (Appeals) - appeal dismissed - decided against appellant.
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2017 (3) TMI 1570
Reopening of assessment proceedings u/s 147/148 - Held that:- We find that there was admission by Shri Mukesh Chokshi that he was engaged in providing bogus long term gains claim in lieu of cash and he was duly examined by the assessee. Totality of facts clearly indicates that there was reasonable belief with the Assessing Officer that income has escaped assessment, therefore, so far as, reopening is concerned, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal), thus, this ground is decided against the assessee.
Bogus accommodation entries - Held that:- On the basis of the orders of ITAT in case of Shri Mukesh Chokshi and his associates, it is a concluded fact that Shxi Mukesh Chokshi is not doing any business of share transactions or stock brokering but he has provided only accommodation entries of share transactions and thus facilitated in helping the appellant for showing bogus, tax free, Long Term Capital Gain. For accommodation entries provided by Shri Mukesh Chokshi and his associates, his net income @0.15% of total transactions has been shown as income and has been accepted by the ITAT.
Therefore, all these transactions are bogus and also the Long Term Capital Gain shown in the return is bogus. Accordingly, the addition made by the AO is upheld and grounds of appeal No. 1, 3 & 4 are dismissed. Addition made under section 68 of the Act as well as the consequential addition representing commission paid to the parties who facilitated the transactions, is upheld. - Decided against assessee.
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2017 (3) TMI 1569
Issues:
1. Extension of duty upon initiation of sunset review under Section 9A (5) of the Customs Tariff Act, 1975.
2. Applicability of previous ruling in Kumho Petrochemicals Co. Ltd. v. Union of India & Ors., 2014 (306) ELT 3 (Del.).
3. Pending appeal in Supreme Court regarding the previous ruling.
4. Disposal of writ petitions based on the final outcome of the Supreme Court appeal.
Analysis:
1. The judgment deals with the issue of the extension of duty upon the initiation of a sunset review under Section 9A (5) of the Customs Tariff Act, 1975, concerning various products like Phenol, front axle, steering knuckles, Nylon Tyre Cord Fabric, plastic processing machine, and Vitamin C. The dispute in question is addressed in relation to specific notifications issued on different dates. The court notes that this matter is covered by a previous ruling in Kumho Petrochemicals Co. Ltd. v. Union of India & Ors., 2014 (306) ELT 3 (Del.), which sets a precedent for the current case.
2. The judgment emphasizes that based on the previous decision in Kumho Petrochemicals case, the writ petitions under consideration must succeed. However, it is crucial to acknowledge that the said judgment is currently under appeal in the Supreme Court through a Special Leave Petition (SLP no.29268-29269/2014) filed by the Central Government against M/s Kumho Petrochemicals Pvt. Ltd. The court takes cognizance of this appeal and the potential impact it may have on the present case.
3. Considering the circumstances and the pending appeal in the Supreme Court, the parties involved in the case agree that the writ petitions can be resolved by aligning with the final outcome of the SLP. The judgment directs that the decision of the Supreme Court in the appeal will govern the proceedings of the present case. If the Supreme Court upholds the ruling of the High Court in Kumho Petrochemicals case, the writ petitioners will be entitled to the same relief. Conversely, if the Supreme Court rules differently, the petitioners will not receive any entitlement. Thus, the writ petitions are disposed of based on this agreement and understanding.
4. In conclusion, the judgment navigates the complexities arising from the previous ruling, the pending appeal in the Supreme Court, and the implications for the current case. By linking the outcome of the SLP to the resolution of the writ petitions, the court ensures a coherent and consistent approach to the legal proceedings, contingent upon the final decision of the higher judicial authority. This approach provides clarity and a structured path forward for all parties involved in the dispute.
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2017 (3) TMI 1568
Arbitration and Conciliation proceedings - challenge to the impugned Award as regards over run charges - Held that:- The Court finds that in the impugned Award the learned Arbitrator has discussed Clause 9 pertaining to over run charges. He has also adverted to email dated 30th June 2009 written by BHEL to the Respondent stating that while escalation would not be payable, over run charges would in fact be paid. The learned Arbitrator has then noted that at the time of submission of the tender, the Respondent had filled up the analysis of unit rate as per the format provided in the tender documents itself. Out of the various items listed at Serial No.5 Establishment and Administrative Expenses of site (5%) as well as depreciation and maintenance of tools and plants (2%), were relevant for over run charges as a result of extended maintenance and running of site.
Since the Respondent had asked only for 5% of the contract value as over run charges, the Arbitrator awarded only that amount and that too only up to 27th May 2009 i.e. for a period of three months beyond the original completion date. The amount of over run per month charges was calculated @5% of the contract value divided by the original contract period and thus worked out as ₹ 1,59,731 per month. This was then multiplied by the period of over run i.e. 10 months. This worked out to ₹ 15,97,310. Since, however, Respondent had claimed only ₹ 14,79,615, only ₹ 14,79,730 was allowed. However, the amount of escalation claimed was disallowed and, therefore, the total over run charges actually allowed was ₹ 10,76,084.
The Court finds that there is no legal infirmity whatsoever in the impugned Award insofar as the above allowing of the claim for over run charges is concerned. No ground has been made out under Section 34(2)(b)(ii) of the Act in this regard.
However, as regards the award of pendente lite interest, learned counsel for the Petitioner is right in his contention that under Clause 5.7 no pendente lite interest could be granted. The Award to the extent that it has awarded pendente lite interest is contrary to the express terms of the contract and is hit by Section 28(3) of the Act. The Award to this extent is opposed to the fundamental policy of Indian law and is hereby set aside. Only the postAward interest in the manner awarded in the impugned Award is upheld.
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2017 (3) TMI 1567
Penalty u/s 271(1)(c) - Commissioner's power u/s 263 to direct the Assessing Officer to initiate penalty proceedings u/s 271(1)(c) - CIT-A passed order u/s 263 holding that the omission on the part of the Assessing Officer to initiate penalty proceedings during the course of assessment has rendered the assessment order erroneous and prejudicial to the interest of the revenue - Held that:- There are divergent views of the High Courts on the subject. Therefore, following the order of the Hon’ble Supreme Court in the case of CIT Vs. Vegetable Products [1973 (1) TMI 1 - SUPREME Court] when two views are possible, the view in favour of the Assessee is to be followed. Therefore CIT v. Paramanand M Patel [2005 (7) TMI 72 - GUJARAT High Court] and in the case of CIT v. Subhash Kumar Jain [2010 (9) TMI 772 - Punjab and Haryana High Court] we set aside the order of the Commissioner passed u/s 263 in directing the Assessing Officer to initiate penalty proceedings u/s 271(1)(c) of the Act.
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2017 (3) TMI 1566
Addition of unexplained share application money - Held that:- Mere production of PAN details is not sufficient to establish identity of a person. Hon’ble apex court affirms the same in its reported order 2015 (9) TMI 54 - SUPREME COURT OF INDIA. We proceed further to notice that hon’ble Delhi high court in Onassis Axles Private Limited Versus Commissioner of Income Tax [2014 (2) TMI 751 - DELHI HIGH COURT]upholds this tribunal’s order restoring Assessing Officer’s finding making Section 68 addition of share application money after taking note of the fact that the concerned share applicants belonging to different places had got prepared their pay orders on the same way falling on 29.06.2006.
We take into account all this case law to conclude that the same is very much applicable in facts involved in the instant appeals wherein the assessee has not been able to prove even identity of its share applicants. We also wish to observe that its reliance being placed on demand draft applications is further devoid of merit since the concerned bank had not complied with “ KYC” requirements before issuing demand drafts in question. We accordingly restore Assessing Officer’s findings as narrated in preceding paragraphs to reverse CIT(A)’s conclusion forming subject matter of our instant adjudication pertaining to both assessment years raising sole substantive issue of validity of Section 68 addition in question. The Revenue’s sole substantive ground as identically pleaded in the instant appeals succeeds.
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2017 (3) TMI 1565
Disallowance u/s 14A - Held that:- It is not in dispute that Rule 8D of the Rules cannot be applied for Asst. years prior to Asst. Year 2008-09. We find that the ld CIT(A) had directed the ld AO to disallow 1% of exempted income u/s 14A of the Act which was agreed upon by the ld DR before us. Hence the ground taken by the revenue before us does not survive. We find that the assessee though did not offer any disallowance suo moto in the return of income u/s 14A of the Act, came forward with petty disallowance of ₹ 2,48,600/- during the course of assessment proceedings which was further improved to ₹ 60,39,896/- based on some rational workings. Admittedly the said workings have not been examined by the lower authorities. Hence in the interest of justice and fair play, we direct the ld AO to examine the workings given by the assessee before the ld CIT(A) and decide the issue afresh in accordance with law.
Commission to non-whole time Directors disallowed under section 40(a)(ia)- Held that:- Respectfully following the view taken by jurisdictional Tribunal in the case of Jahangir Biri Factory Pvt. Ltd. (2009 (3) TMI 215 - ITAT CALCUTTA-C ), we allow the claim of assessee. We also find that the subject mentioned payments have been brought within the ambit of section 194J of the Act only with effect from 1.7.2012 and hence the same cannot be made applicable for earlier years.
Relinquishment of a right to operate the Hotel Searock - whether could be construed as relinquishment of a capital asset so as to fall within the ambit of ‘capital gain’ or 'business income' - Held that:- We hold that ‘right to operate’ the Hotel under Operating Licence Agreement dated 3.5.1986 wherein the assessee has been given unfettered powers to operate the Hotel in any manner in which it finds suitable. This right , in our considered opinion, is a capital asset within the meaning of section 2(14) of the Act. Hence relinquishment of such right would only result in transfer u/s 2(47) of the Act and hence the resultant gain thereon would only fall under the ambit of ‘capital gain’. Since the assessee has been using the said right from 1986 onwards, the resultant gain would only be Long Term Capital Gain. Moreover, the assessee had entered into a Settlement Agreement dated 11.5.2005 in order to give quietus to various disputes among the assessee and ELEL with the assistance of an Arbitrator and the said Arbitrator had duly passed an Award wherein the assessee was made to relinquish its right to operate the hotel by receiving a consideration of ₹ 32.42 crores and both the parties unconditionally withdrawing their respective cases filed before the Hon’ble Bombay High Court. Hence we hold that that the consideration received by the assessee pursuant to this Settlement Agreement in the sum of ₹ 32.42 crores for relinquishing its capital asset (i.e. right to operate the hotel) is to be taxed only as Long Term Capital Gain.
Deduction u/s 80IA of the Act in respect of two captive power undertakings at Bhadrachalam factory, Andhra Pradesh - Held that:- We find that whether the deduction u/s 80IA of the Act is eligible to an assessee engaged in generation of power which has been consumed in its entirety by the other business units of the assessee is settled by the decision of the Hon’ble Calcutta High Court in assessee’s own case in favour of the assessee by laying emphasis on the word ‘generation of power’ which is contemplated in provisions of section 80IA of the Act. Hence this aspect of the issue is decided in favour of the assessee. With regard to the market value issue, we find that the Hon’ble High Court had set aside. Respectfully following the same, we deem it fit and proper to set aside this aspect of the issue (i.e. determination of market value alone) to the file of the ld AO to decide the same in the light of directions of the Hon’ble Calcutta High Court in assessee’s own case. Accordingly, the Ground raised by the revenue is partly allowed for statistical purposes.
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2017 (3) TMI 1564
Provisional release of seized Indian Currency Notes - Held that: - Considering that, an application for provisional release of Indian Currency Notes is pending since August 29, 2015, it would be appropriate to request the respondent no. 1 to consider and decide such application in accordance with law, within a period of six weeks from the date of communication of this order to him.
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