Home Case Index All Cases Income Tax Section Wise 2019 2019 (10) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 3 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 41 to 60 of 1586 Records

• 2019 (10) TMI 1548 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Condonation of delay in filing appeal - Approval of Resolution Plan - HELD THAT:- Under Section 61(2) of the ‘I&B Code’, this Appellate Tribunal is empowered to condone the delay in preferring the appeal not more than 15 days after the period of 30 days in preferring the appeal. For the said reason, no relief can be granted in an appeal, which is not maintainable.

  Appeal dismissed.

  ---

• 2019 (10) TMI 1547 - ITAT MUMBAI
  

  TP Adjustment - notional interest on the outstanding receivables from a domestic group company - ‘deemed' international transaction - transaction for the purposes of Chapter X of the Income-tax Act, 1961 - Meaning of international transaction u/s 92B. (1) - transaction entered into between two domestic related parties - whether transaction between the Appellant and RNIPL is a deemed international transaction within the meaning of section 92B(2) ? - HELD THAT:- As the requisite conditions for characterising a transaction as an “international transaction” within the meaning of Sec. 92B is not satisfied in the case before us, therefore, we have no hesitation in concluding that san existence of an international transaction, the A.O could not have made an adjustment under Sec.92C of the Act. Our aforesaid view is fortified by the order of the coordinate bench of the Tribunal in the case of M/s Astrix Laboratories Ltd. [2015 (1) TMI 1008 - ITAT HYDERABAD]

  As the assessee neither falls within the sweep of the meaning of an international transaction as envisaged in sub-section (1) of Sec. 92B, nor is covered by the extended meaning of a ‘deemed‘ international transaction as provided in sub-section (2) of Sec. 92B, therefore, the adjustment made by the A.O under Sec. 92C cannot be principally sustained, and is liable to be vacated. Before parting, we may also observe, that as the provisions pertaining to transfer pricing of specified domestic transactions as envisaged in Sec.92BA of the Act, had been made available on the statute vide the Finance Act, 2012 w.e.f 01.04.2013 i.e from A.Y. 2013-14, therefore, the same would not be applicable to the case of the assessee before us for the year under consideration i.e A.Y. 2012-13. Be that as it may, we may herein observe that it is not even the case of the revenue that the A.O had made the aforesaid T.P Adjustment under Sec.92BA of the Act. On the basis of our aforesaid observations, we delete the addition made by the A.O under Sec.92C of the Act. Accordingly, the order of the CIT(A) is set aside. Decided in favour of assessee.

  ---

• 2019 (10) TMI 1546 - DELHI HIGH COURT
  

  Decree of estoppel - Suit for declaration, permanent injunction, damages and incidental relief - rightful owner of the 'Su-Kam' marks in Class 9 of the Trade Marks Act, 1999 or not - fabricated Deed of Assignment - accrual of right to sue - in the present case the application for recordal is made after more than twelve years, after commencement of Corporate Insolvency Resolution Process - time limitation - HELD THAT:- This Court is of the view that when a summary judgment application allows the Court to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. It bears reiteration that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court the confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

  In fact, the legislative intent behind introducing summary judgment under Order XIIIA of CPC is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII of CPC.

  This Court is of the opinion that there will be 'no real prospect of successfully defending the claim' when the Court is able to reach a fair and just determination on the merits of the application for summary judgment. This will be the case when the process allows the court to make the necessary finding of fact, apply the law to the facts, and the same is a proportionate, more expeditious and less expensive means to achieve a fair and just result.

  It is settled law that where a mark is unregistered, as it was at that stage, ownership of the proprietor is not in the trade mark, but in the goodwill associated with the business where the trade mark is used. Since the inverter business was never carried out by the partnership, no goodwill was generated in favour of defendant no. 1 for the inverter business. Consequently, any licence under the TMLA could have been a licence in respect of the goodwill associated with the cable TV business only, since that was admittedly the business conducted by the partnership - based on the admissions of defendant no. 1 and applicable law, it can safely be said that the TMLA does not cover the inverter business and never was and is not applicable to the plaintiff. Consequently, no purpose will be served by leading oral evidence on whether the TMLA covers the inverter business.

  The defendant no. 1 is estopped from contending that he is the owner of SU-KAM marks in respect of Class 9 of the Trade Marks Act, 1999 - right to sue accrues when there is a clear or unequivocal threat proceeding from the defendant which invades or jeopardises the plaintiff's rights.

  In the present case between 16th March, 2006 (i.e. date of execution of Deed of Assignment) and 09th July 2018 (i.e. when the defendant no. 1 submitted the Deed of Assignment to the Interim Resolution Professional), there was no assertion or representation by defendant no. 1 that plaintiff is not the owner of the SU-KAM mark in Class 9 - On the contrary renewal of the SU-KAM trade marks in Class 9 on 05th October, 2008 and 09th March, 2016, when the defendant no. 1 was in exclusive control and management of the plaintiff company, proves beyond doubt that the defendant no. 1 did not even rely upon the alleged Deed of Assignment dated 16th March, 2006.

  The right to sue in the present case arose in favour of the plaintiff only on 09th July, 2018 when defendant no. 1 for the first time denied plaintiff's title to the SU-KAM mark in Class 9 and claimed its ownership before the Interim Resolution Professional. The said cause of action again arose in favour of the plaintiff on 18th July, 2018 when defendant no. 1 relying upon the alleged Deed of Assignment applied for recordal of assignment with the Trade Mark Registry - the present suit is within limitation.

  In the present case, the plaintiff is the exclusive registered proprietor of the trademarks SU-KAM with respect to inverters which fall within Class 9 in view of the registration certificates dated 22nd June, 2005 and 05th February, 2011 in favour of the plaintiff having come into effect on 05th October, 1998 and 09th March, 2006 respectively and which were renewed on 05th October, 2008 and 09th March, 2016 - when admittedly defendant no. 1 was in control and management of the plaintiff-company. Consequently, the defendant no. 1's contentions and submissions with regard to earlier adoption or licensing by way of TMLA dated 07th July, 1995 or BT Agreement dated 16th September, 1999 and/or subsequent transfer by way of Deed of Assignment dated 16th March, 2006 are baseless and inconsequential - urther the Deed of Assignment is void for breach of fiduciary duty. In fact, the said Deed had been executed by the defendant no. 1 both as assignor and assignee and it purports to transfer the substratum of plaintiff's business to its director "defendant no. 1" for nominal consideration of Rs. 5,000/- by an alleged recordal twelve years later and that too after commencement of corporate insolvency resolution process!

  The admissions of defendant no. 1 in documents and pleadings prevent him from taking factual positions to the contrary and leading evidence to the contrary. Further from the pleadings and material on record, it is apparent that the defendants have no real prospect of defending the allegations made by the plaintiff and there is no compelling reason for trial.

  Application disposed off.

  ---

• 2019 (10) TMI 1545 - ITAT CHANDIGARH
  

  Exemption u/s 11 denied - As per AO assessee was involved in large scale commercial activity - DR argued that CIT(A) has straightway relied upon certain case laws and allowed the appeal of the assessee without discussing as to how those case laws were applicable to the facts of the case of the assessee especially to the quantum of income earned by the assessee or the generation of huge surplus - HELD THAT:- As Both the Ld. representatives of the parties, therefore, submitted that since the matter has not been properly examined either by the Assessing Officer or by the CIT(A), hence, the same be restored to the file of the Assessing Officer for proper appreciation of the facts and the decision in accordance with law.

  The order of the lower authorities are set aside and the matter is restored to the file of the Assessing Officer for decision afresh in the accordance with law. Needless to say that the Assessing Officer will provide proper opportunity to the assessee to present its case. Decided in favour of assessee for statistical purposes.

  ---

• 2019 (10) TMI 1544 - ITAT MUMBAI
  

  Gain on sale of property - STCG OR LTCG - occupancy rights of the property - reckoning of date of acquisition of the property - AO treated the occupancy rights of the assessee in the Office premises as a "Short Term Capital Asset", and worked out STCG on the transfer of the same - HELD THAT:- As pursuant to the final and binding allotment of the office premises assessee got vested with the ownership of the rights in respect of the property under consideration. Our aforesaid view is supported by the judgment of the Hon'ble High Court of Bombay in the case of PCIT-3, Vs. Vembo Vaidyanathan [2019 (1) TMI 1361 - BOMBAY HIGH COURT] wherein as referring to the clarification issued by the CBDT, vide its Circular No. 672, dated 16.12.1993, it was observed by the Hon'ble High Court, that the Board had clarified that if the terms of the schemes of allotment and construction of flats/houses by the co-operative societies or other institutions were similar to the terms of allotment and construction by D.D.A, then on the same basis the acquisition of the property was to be related to the date on which the allotment letter was issued. On the basis of its aforesaid observations, the Hon'ble High Court had dismissed the appeal of the revenue. In the backdrop of our aforesaid deliberations, we are of the considered view that as no infirmity emerges from the order of the CIT(A), who we find had rightly concluded that the date of acquisition of the property under consideration was to be reckoned from the date of the allotment letter i.e 03.12.1999, therefore, we uphold his order.

  ---

• 2019 (10) TMI 1543 - ITAT MUMBAI
  

  Income deemed to accrue or arise in India - PE in India - Income directly accrued in India from exhibition of films in the cinema halls / TV channels in India - HELD THAT:- As decided in assessee’s own case for AY 2006-07 [2011 (12) TMI 195 - ITAT MUMBAI] as rightly held by the CIT (A) even if income arises to the Non-Resident due to the business connection in India, the income accruing or arising out of such business connection can only be taxed to the extent of the activities attributed to permanent establishment. In this case, the assessee does not have any permanent establishment in India. Since the Indian company who obtained the rights is acting independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industries Ltd [2007 (1) TMI 91 - SUPREME COURT] that incomes arising to a Non-Resident cannot be taxed as business income in India, without a PE. As the assessee does not have any permanent establishment in India, the incomes arising outside Indian Territories cannot be brought to tax. Therefore, there is no need to differ from the findings of the CIT (A) and accordingly the Revenue Appeal is dismissed.

  ---

• 2019 (10) TMI 1542 - SUPREME COURT
  

  Power under Section 482 of the CrPC used by the High Court to scuttle the investigation - offence punishable under Sections 376, 499 and 506(2) of the Indian Penal Code, 1860 - HELD THAT:- The High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual.

  Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.

  Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law - Appeal allowed.

  ---

• 2019 (10) TMI 1541 - DELHI HIGH COURT
  

  Income deemed to accrue or arise in India - ITAT held as not chargeable to tax under section 9(1)(vi) read with Article 12(3) of the DTAA between India and USA as royalty - HELD THAT:- The present appeal is directed against the order passed by the Income Tax Appellate Tribunal Delhi Bench (ITAT): “G‟, New Delhi in [2019 (4) TMI 1426 - ITAT DELHI] in respect of the assessment year 2012-13. The Tribunal has placed reliance on the decisions of this Court in M/s Asia Satellite Telecommunications Co. Ltd. [2011 (1) TMI 47 - DELHI HIGH COURT] and Director of International Taxation Vs. New Skies Satellite BV, [2016 (2) TMI 415 - DELHI HIGH COURT].

  Since the issues raised by the Revenue are squarely covered by the aforesaid decisions of this Court, in our view, no question of law arises for our consideration.

  ---

• 2019 (10) TMI 1540 - DELHI HIGH COURT
  

  Seeking condonation of delay of 27 days in filing the petition - petition is filed within the statutory period of 3 months prescribed under section 34 (3) of the Act or not - petition was filed within the extended period of 30 days under the Proviso or not - Section 34 of the Arbitration and Conciliation Act, 1996 - Whether the filing in the first or the second instance is a ‘non- est’ filing?

  HELD THAT:- In the present case, it is found that the petitioner has been taking shifting stands. Initially, the main plank of the petitioner’s stand was that the filing had been done on 23.01.2019 and was therefore, within the statutory period of three months. Confronted by the respondent in the Court, when the petitioner filed an application for the first time seeking condonation of delay, it was explained that some wrong CDs had been inadvertently uploaded on 23.01.2019 and the stand shifted to submitting that 20.02.2019 should be treated as a date of ‘fresh’ filing and this would be within the thirty days period beyond the initial three months and the delay can be condoned - this shifting of stand by the petitioner particularly in the background of the facts of this case which I will detail hereinafter and the manner in which the filing and refiling has been done in this case definitely deserves to be deprecated.

  In view of this admission made by the petitioner, it is not open for the petitioner to argue that the initial date of filing of the petition should be taken as 23.01.2019 or that the petition is within the limitation period of three months prescribed under Section 34(3) of the Act. In any case petitioner could not establish that any petition was filed on 23.1.2019. Despite undertaking to the Court, copies of the documents filed on 23.1.2019 were not filed and the stand was that they were destroyed. Why a signed vakalatnama and signed affidavits were destroyed remains unanswered - there being no filing on 23.1.2019, the present petition in my view is not filed within the limitation period of three months under Section 34(3) of the Act.

  The only inference that one can draw is that the initial filing was done only to stop the period of limitation from running. The petition was filed and refiled without curing most of the defects. The log-in information continues to mark the same codes for different dates of filing which showed the carelessness and the casual attitude in prosecuting the filing - No doubt the Courts have the jurisdiction to condone delay within the extended period of thirty days under Section 34(3) of the Act, but the approach in exercising such a jurisdiction cannot be very liberal and the action of the applicant will have to be tested on the touchstones of whether there was due diligence and dispatch in filing the matter and clearing the defects. The legislature has specified an inelastic period of limitation under Section 34(3) of the Act and this intent of the legislature cannot be likely brushed aside.

  The petitioner has been unable to show sufficient cause that prevented him from filing the petition upto 23.01.2019 when the statutory period of 3 months ended. Even the petition filed on the last day of the 30 days beyond the three months period was non-est. Therefore, the contention that there is a delay in re-filing is incorrect as the delay actually is in the initial filing. Once the delay is in the initial filing and is beyond a total of 120 days, as prescribed under Section 34(3) and Proviso to the said Section of the Act, this Court has no power to condone the delay - The application for condonation of delay, thus deserves to be dismissed as the delay cannot be condoned.

  The application seeking condonation of delay is thus dismissed.

  ---

• 2019 (10) TMI 1539 - ITAT RANCHI
  

  Exemption u/s 11 - cancelling the registration granted u/s.12AA - sale proceeds from sale of land for development - HELD THAT:- Neither in the written submissions nor before the Tribunal nor in the reply to the show cause issued by the CIT(E), it has been mentioned or explained by the appellant that the sale proceeds from sale of land for development have been used or will be used for the development of charitable objects of the trust. Therefore, this factum was sufficient for CIT(E) for satisfying himself that the activities of the trust are not genuine or are not being carried out in accordance with the objects of the Trust. In this situation, the CIT (E) has very well empowered to pass order under section 12AA(3) of the Act cancelling the registration.

  We reached to a logical conclusion that the CIT(E) was right in cancelling the registration granted to the assessee on 7.5.2012 as the Pujari of the trust changed the original trust deed granted in 1948 and subsequent trust deed in 1987 against the wishes of the founder. The reasons stated by the appellant for sale of land of the trust for development is also not genuine, bonafide and thus, it is crystal clear that the activities of the trust were not genuine as it has violated the objects of the trust as well as the transferring the property of the trust without any good cause against the interest of trust. Accordingly, grounds of the assessee being devoid of merits, is dismissed.

  ---

• 2019 (10) TMI 1538 - ITAT BANGALORE
  

  Addition u/s 68 - Denial of natural justice - absence of opportunity of hearing by providing copy of the statement and related detailed regarding the alleged share amount - HELD THAT:- We find that the CIT(A) has co-terminus powers with AO, therefore, he ought to have provided copies of statements and other related materials and also opportunity of cross-examination to the assessee before deciding the issue on merits when she had specifically requested for those evidences. Therefore, we are of the considered view that in absence of proper opportunity of hearing and also cross-examination to the assessee for her rebuttal, the assessment order passed by the AO suffers from principles of natural justice and hence addition made by the AO cannot be sustained. Hence, we are of the view that the appeal filed by the assessee needs to go back to the file of the AO for fresh consideration. In so far as the arguments of the learned DR in light of the decision of Suman Poddar [2019 (7) TMI 1514 - ITAT DELHI] and Pooja Ajmani [2019 (4) TMI 1665 - ITAT DELHI] we find those cases were decided on merits on the issues without considering the aspect violation of principles of natural justice, whereas, in the case of Devichand Kothari [2015 (2) TMI 1383 - KARNATAKA HIGH COURT] has restored the matter back to the file of the AO for alleged violation of principles of natural justice. Therefore, we are of the considered view that the case laws relied upon by the learned DR has no application to the facts of the present case and hence not considered.

  We are of the considered view that order passed by the AO suffers from principles of natural justice and hence, we restore the appeal to the file of the AO for denovo consideration of the issue after making available to the assessee for rebuttal all documents including statements, investigation reports, etc., relied upon by the AO for making additions towards amount received from sale of shares under section 68 - Appeal filed by the assessee is treated as allowed for statistical purposes.

  ---

• 2019 (10) TMI 1537 - ITAT CHENNAI
  

  Operating income for the purpose of PLI - Exclusion of loss on foreign exchange fluctuation from the operating expenditure - HELD THAT:- D.R. very fairly submitted that this Tribunal in the case of Infac India Pvt. Ltd [2018 (10) TMI 1814 - ITAT CHENNAI] found that the profit or loss due to foreign exchange fluctuation has to be excluded from operating income for the purpose of PLI. In view of the decision of co-ordinate Bench of this Tribunal, the loss on account of foreign exchange fluctuation in this case has to be excluded from operating expenditure. Accordingly, the orders of both the authorities below are set aside and the Assessing Officer is directed to exclude the foreign exchange fluctuation from operating income / expenditure.

  Adjustment of working capital for determining the arm's length price - CIT(Appeals) confirmed the order of the Assessing Officer on the ground that the assessee has not filed any material to establish that it is operating in an environment of negative working capital - HELD THAT:- From the material available on record it appears that the assessee has filed the material to indicate / establish the working capital involved in the functioning of the assessee. In those circumstances, this Tribunal is of the considered opinion that it may not be correct to say that the assessee has not submitted relevant facts before the CIT(Appeals). Therefore, the matter needs to be remitted back for re-examination. Accordingly, orders of both the authorities below are set aside and the issue of working capital adjustment is remitted back to the file of the CIT(Appeals). CIT(Appeals) shall examine the material filed by the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee. The assessee is also at liberty to file necessary material once again before the CIT(Appeals) so that the working capital adjustment can be made.

  Non-consideration of miscellaneous income - Assessee submitted that amount is part of Other Income and operating in nature - HELD THAT:- When the assessee has raised a specific ground, this Tribunal is of the considered opinion that the CIT(Appeals) is expected to dispose the same in accordance with law. Since such an exercise was not done by the CIT(Appeals), this Tribunal is of the considered opinion that the matter has to be considered by the CIT(Appeals). Accordingly, the issue in respect of other income is remitted back to the file of the CIT(Appeals) for consideration.

  Appeal filed by the assessee is allowed.

  ---

• 2019 (10) TMI 1536 - DELHI HIGH COURT
  

  TP Adjustment - adoption of the Bright Line Method - determination of the price adjustment on protected basis - HELD THAT:- This Court has already rendered its decision in Sony Ericsson [2015 (3) TMI 580 - DELHI HIGH COURT] rejecting the adoption of the Bright Line Method by the TPO, in our view, the AO could not have proceeded to make the protective assessment by applying the Bright Line Method. However, we make it clear that we have not examined the legality of the observation made by the Tribunal and the said issue shall be considered in an appropriate case.

  ---

• 2019 (10) TMI 1535 - SUPREME COURT
  

  Maintainability of appeal on low tax effect - issue before the High Court was whether the Instruction Order No. 5/2008 dated 15.05.2008 could be availed by the appellant(s), providing for disposal of the appeal(s) filed by the respondent involving low tax effect? - HELD THAT:- Similar question came up for consideration before this Court in Director of Income Tax, Circle 26(1), New Delhi vs. S.R.M.B. Dairy Farming (P) Ltd., [2017 (11) TMI 1494 - SUPREME COURT] This Court after considering the decisions of different High Courts, including the Supreme Court decision on the question involved, namely, Commissioner of Income Tax Vs. Surya Herbal Ltd. [2011 (8) TMI 137 - SC ORDER] answered the question in favour of assessee

  The same interpretation must apply to the instructions under consideration. In the present case, there is no possibility of cascading effect nor the issue is involved in group of matters, as such. Therefore, the appeals are allowed.

  As a result, the impugned judgment is set aside and the appeals filed by the respondent before the High Court be treated as dismissed in terms of this order because of low tax effect, leaving questions of law open.

  ---

• 2019 (10) TMI 1534 - MADRAS HIGH COURT
  

  Prohibition of Benami Property Transactions - Withdrawal of appeal on getting alternative remedy - HELD THAT:- When it is pointed out that the Petitioner has got an effective alternative remedy to challenge the order impugned in this Writ Petition by way of appeal under Section 46 of the Prohibition of Benami Property Transactions Act, 1988 before the Appellate Tribunal at New Delhi as mentioned therein, the Learned Counsel for the Petitioner seeks permission of this Court to withdraw this Writ Petition with liberty to file such appeal and made an endorsement to that effect, which is recorded.

  Writ Petition is dismissed as withdrawn granting such liberty. It is further open to the Petitioner to raise all legal issues in the proposed appeal. It is made clear that for the purpose of computing the period of limitation in filing the appeal, the period from the date of presentation of the Writ Petition i.e., from 20.09.2019 till the date on which certified copy of this order is issued, shall be excluded.

  ---

• 2019 (10) TMI 1533 - MADRAS HIGH COURT
  

  Calculation of recovery percentage - Illegal quarrying in areas beyond the licensed patta land - granite quarry - alleged quarrying in Government poramboke land, besides misstating recovery percentage - HELD THAT:- This is not a case where no reasons have been provided in the impugned order. Therefore, case on hand clearly distinguishable on facts qua Mahanivesh Oils case. However, this court makes it clear that no opinion or view is expressed regarding 'reason to believe' adduced in the impugned attachment order, as this court has no difficulty in accepting the contention of learned Solicitor that impugned attachment order is only a provisional attachment order and the same has to be adjudicated upon and an order has to be passed regarding whether properties which are subject matter of attachment are involved in money laundering. Proviso to section 8(2) makes it clear that writ petitioner has to be given an opportunity of being heard to prove that the property is not involved in money laundering.

  This Court finds that the matter does not end there. Even if the adjudication and outcome of the adjudication under section 8(2) is adverse to the writ petitioner or in other words, even if the impugned attachment order which is provisional, is confirmed, writ petitioner has right of appeal to the appellate authority under section 26 of PMLA Act and thereafter, a further appeal to High /Court under section 42 of PMLA Act.

  Oher than saying that recovery percentage aspect did not come up for consideration in the other order, there is no other reason much less convincing reason for this court to take a different view. As the recovery percentage aspect has already been adverted to, addressed and answered supra elsewhere in this order, it is also a matter of judicial discipline that the order made by another Hon'ble Single Judge is applied in the instant case also. In any event, this court is left with the considered view that there is no reason much less compelling reason for this court to take a different view.

  Petition dismissed.

  ---

• 2019 (10) TMI 1532 - MADRAS HIGH COURT
  

  Criminal liability u/s 278B of the Income Tax - Whether Non-Executive nominee directors of the first accused company are criminally liable to be prosecuted for an offence involving non-remittance of the TDS amount? - scope of Section 141 of the Negotiable Instruments Act, 1881 - HELD THAT:- As the Proviso to Sec.141 of NI Act explicitly exempt those who are not liable for criminal prosecution, Sec.278B of the Income tax does not provide it. That, in the opinion of the Court, does not make any real difference in understanding the provision, for the operative portion of both the provisions in both the enactments themselves provide such necessary factors as would be sufficient to identify those who are liable for criminal prosecution.

  To repeat they both read-“Those who are in charge of, or responsible to the business”.

  Ultimately, if a nominee Directors of a financial institution, or shareholders of a company have a duty to, or responsibility to be, in charge of the affairs of the company, depends on the terms of contract or any legal provisions on the basis of which such nominee director came to be nominated. This cannot be left to any unfounded belief of the Complainant, or to his random statement that a nominee director is the Principal Officer of the company.

  In Madhumilan Syntex case [2007 (3) TMI 670 - SUPREME COURT] a case where the accused, who are the Directors of the company (and not Nominee directors) approached the Court seeking to exclude them from criminal prosecution under sec.278B of the I.T. Act, for an offence of non remitting the TDS (exactly the same offence for which the petitioners herein are sought to be prosecuted), the Honble Supreme Court declined to grant relief to the Directors of the company, because they happened to be Directors, and proceeded to hold that their actual role via-a-vis, the company is a matter for trial. As indicated earlier, that was a case involving the Directors of the company, and not Nominee Directors.

  This court has little hesitation to conclude that there is nothing in the complaint, that the petitioners, even as Nominee Directors were in charge of the affairs of the companym and consequently they cannot be made liable to face criminal prosecution. In the result, this Court allows all the petitions and quashes the complaints pending on the file of Judicial Magistrate Court, Trichy, only as against the petitioners.

  ---

• 2019 (10) TMI 1531 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - HELD THAT:- On perusal of the judgement in the case of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT], it is clear that limitation period triggers from the date of default and period of limitation for filing Applications under I&B Code is three years.

  Therefore, in absence of any substantial evidence to prove to the contrary, present Application filed on 26.11.2018 is clearly barred by limitation as the dates of default as mentioned in the Application are 28.02.2014, 09.04.2014, 18.07.2014, 23.12.2014, 02.02.2015 and 09.04.2015 and period of three years has been elapsed from the said dates of default. Therefore, the Application is barred by limitation and debt of Applicant is time barred.

  This Application filed under Section 9 of I&B Code, 2016, by Sarda Agro Oils Limited, Operational Creditor/Applicant against Sakuma Exports Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process is rejected.

  ---

• 2019 (10) TMI 1530 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL BENCH
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Under sub-section 5(a) of section 7 of the code, the application filed by the petitioner financial creditor has to be admitted on satisfaction that:

  (i) Default has occurred;

  (ii) Application is complete, and

  (iii) No disciplinary proceeding against the proposed IRP is pending.

  In view of the above no doubt is left that there was an advancement of loan and default on part of the respondent- corporate debtor is established. Even Otherwise there is overwhelming documentary evidence on record which support those findings - After a conjoint reading of the aforesaid provision along with Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, as already recorded that a default has occurred and the application under sub section 2 of Section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him.

  This petition is admitted and Mr. Sameer Rastogi is appointed as the Interim Resolution Professional - Moratorium declared.

  ---

• 2019 (10) TMI 1529 - MADRAS HIGH COURT
  

  Stay petition - first respondent has taken steps to attach the bank accounts of the petitioner - HELD THAT:- As it could be seen that without adducing any reason, the second respondent (ITAT) has passed the order impugned herein, that too without extracting the relevant portion of the earlier judgment of the co-ordinate Bench of the Tribunal in RMKV Fabrics [2019 (4) TMI 2072 - ITAT CHENNAI] Though the Tribunal is empowered to pass any order in the stay applications, it has to consider each and every issue independently and render its findings with proper reasonings, since reasoning is the heartbeat of every conclusion. Without following this rudimentary principle of law, the second respondent has passed the impugned order, merely referring to the case number of the earlier judgment of the co-ordinate Bench of the Tribunal. Such course adopted by the Tribunal, in the opinion of this Court, cannot be countenanced.

  In such view of the matter and also in the light of the admitted facts that the petitioner has already paid a substantial amount and is also inclined to pay a further sum of Rs.2 crores in addition to the third instalment of Rs.75,00,000/-, this Court, without expressing any opinion on the merits of the grounds raised by the petitioner in the stay applications as it is tantamount to dealing with the legal issues involved in the main appeals.

  ---

1234567........ 80