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Showing 41 to 60 of 1125 Records
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2020 (11) TMI 1087
Disallowance of expenditure of earning exempt income u/s 14A - addition to book profits under Section 115 JB towards expenditure on exempt income - HELD THAT:- Substantial questions of law No.1 and 4 are answered against the revenue by judgment passed by a Bench of this Court [2020 (1) TMI 1141 - KARNATAKA HIGH COURT] and connected matter.
Deprecation on HTM category of investments - HELD THAT:- As further submitted that the substantial question of law No.2 is answered against the revenue by a Bench of this Court in ‘KARNATAKA BANK LTD [2013 (7) TMI 656 - KARNATAKA HIGH COURT] as further submitted that substantial question of law No.3 is covered by the judgment passed by a Bench of this Court [2020 (1) TMI 1116 - KARNATAKA HIGH COURT] and connected matters. The aforesaid submission could not be disputed by learned counsel for the revenue.
We answer the substantial questions of law framed in these appeals against the revenue and in favour of the assessee.
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2020 (11) TMI 1086
Liability to GST - Royalty amount paid under RCM - whether Royalty amount is also required to be added in the value of supply of Service as per Section 15 for payment of GST, considering the same as part of supply of value? - HELD THAT:- In the present case, the mining right so granted for mining of soil is covered under the sub heading 997337 which specifies - 'Licensing services for the right to use minerals including its exploration and evaluation'. It is further seen that this gets covered under entry no. 17 of Notification No. 11/2017 - Central Tax (Rate) dated 28.06.2017, though the aforementioned service is not covered in any of the specifically mentioned descriptions of -entry no 17, resultantly it qualifies being categorized in the residual clause / serial number of entry no 17, wherein it has been specified that the rate applicable for such service should be of same rate as applicable for the supply of like goods involving transfer of title in goods.
The service received by the applicant is squarely covered under the Service Accounting Code 997337 -Licensing services for the right to use minerals including its exploration and evaluation. The State Government has been providing the service of licensing services for the right to use minerals after its exploration end evaluation and for this a consideration has to be paid to the Government - Reverse Charge Mechanism is applicable for certain notified services as mentioned in Notification No. 13/2017 - Central Tax (Rate) dated 28.06.2017. As per Sl. No. 5 to the said Notification, services supplied by the Central Government, State Government, Union territory or local authority to a business entity attracts GST, under reverse charge basis by the recipient of such services. The applicability thereof of GST rate for the aforementioned service is to be based on the classification of service.
In the instant case as the applicant is admittedly availing mining rights including it exploration and evaluation of soil used in earthwork on payment of a consideration to the Government of Chhattisgarh applicable with effect from 1.4.2018 GST is payable on reverse charge basis by the applicant on the consideration so paid to the Government, at the rate of supply of like goods being mined, on account of availing the said mining rights. Accordingly we come to the considered conclusion that the services for the right to use minerals including its exploration and evaluation, as per the Notification No. 11/2017-CT (Rate), dated 28.06.2017 as amended is included in sub heading 997337, attracting GST rate @18%.
Inclusivity of Royalty amount in the value of supply of Service as per Section 15 for payment of GST - HELD THAT:- As clause (2) to Section 15 of the Act provides that the value of supply shall include any tax, duties, cesses, fees and charges levied under any law other than GST Act, the royalty amount so paid by the applicant is includible while arriving at the transaction value for payment of applicable GST on the supply of the aforesaid services /activity rendered by the applicant to the main contractor.
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2020 (11) TMI 1085
Rate of GST - Works Contract Service - Composite supply - works contract for renewal/renovation and other improvements for railway track from Karonji Station to Bhatgaon Railway Siding at Bhatgaon Area of SECL - HELD THAT:- On going through the chronology of amendments relevant to the issue in hand, detailed as made in Notification no. 11/2017-Central Tax (Rate), dated 28-6-2017, we come to the considered conclusion that the activities referred to by the applicant as works contract services provided to RITES Ltd, under letter of acceptance dated 20/12/2019 in relation to the work of renewal/renovation and other improvements for railway track from Karonji Station to Bhatgaon Railway Siding at Bhatgaon Area of SECL, would be leviable to GST at the rate of 9% CGST + 9% CGGST, as stipulated under serial number 3 [s.no. (xii)] of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 lastly amended vide 03/2019-Central Tax (Rate) New Delhi, the 29th March, 2019.
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2020 (11) TMI 1084
Levy of GST - purchase of Biomass Power Plant (8 MW Capacity) by way of transfer of going concern through e-auction - serial no.2 of the Notification No.12/2017-Central Tax (Rote) dated 28/06/2017 - HELD THAT:- SCHEDULE II to Section 7 of the CGST Act supra, specifies about the Activities or Transactions which are to be treated as supply of Goods or supply of Services, wherein clause 4 (a) categorically stipulates that where goods forming part of the assets of a business are transferred or disposed of by or under the direction of the person carrying on the business so as no longer to form part of those assets, such transfer or disposal is a supply of goods by the person. Thus disposal of goods forming part of assets have been categorically stipulated under clause 4(a) of Schedule II to Section 7 of CGST Act, 2017 as supply of goods. Whereas, clause 4(c) of the said schedule II to Section 7 of the CGST Act, 2017 specifically stipulates that the transfer of a business as a going concern does not constitute a supply of goods.
The transfer of a business as a going concern is tax-exempt under GST, whereas sale of assets as above being supply of goods will be out of the purview of exemption from tax, eventually having GST implications. Further, as per the sale notice issued by the appointed liquidator, for effecting sale of assets and properties owned by M/s. Vandana Vidhuyat Limited (in Liquidation) under Insolvency and Bankruptcy Coode, 2016, in addition to the Biomass Power Plant (8 MW Capacity) in question, sale of Thermal Power Plant-2x135 MW Capacity was also initiated and it is seen from the letter of intent issued by the liquidator, that the question had bid for the said Biomass Power Plant (8MW Capacity) only M/s. Vandana Vidhuyat Ltd. - whenever there is transfer of business as a Going concern, it shall involve transfer of goods and/or services. Whether the instant supply of sale of assets in entirety is to be treated as supply of woods supply of services con be determined in terms of the definitions of composite supply and mixed supply read with section 8 of the CGST Act 2017.
Whenever there is transfer of business as a Going concern, it shall involve transfer of goods and/or services. Whether the instant supply of sale of assets in entirety is to be treated as supply of woods supply of services con be determined in terms of the definitions of composite supply and mixed supply read with section 8 of the CGST Act 2017 - in case the transfer of business as a going concern involves a supply of sate of assets which deserves treatment as principal supply as defined above and that supply is of goods, then the sale of assets as a going concern will have be treated as supply of goods by virtue of section 8 ibid and, therefore, the exemption provided under Notification no. 12/2017- Central Tax (Rate) will not be applicable, the exemption being only eligible to services of transfer of business as a going concern.
In the instant case of the applicant, as elaborately discussed in the preceding pare, it is seen that acquiring of assets viz. Biomass Power Plant (8 MW Capacity) by way of sale of assets and properties owned by the Corporate Debtor, M/s Vandana Vidhyut Limited, in Liquidation forming part of Liquidation Estate formed by the Liquidator under Insolvency and Bankruptcy Code, 2016, through e-auction for a consideration is supply of goods and not supply of services in view of the stipulations under SCHEDULE II of Section 7 of the CGST Act, 2017. Thus, the instant sale of Assets and properties viz. Biomass Power Plant (8 MW Capacity) owned by Vandana Vidhyut Limited (in Liquidation), can in no way be supply of services.
Notification No. 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017, supra provides for exemption to intro-Slate supply of services by way of transfer of a going concern, as a whole or an independent part thereof, whereas here in the case of applicant the supply of biomass power plant is supply of goods and not supply of services in view of the stipulations under schedule II to Section 7 of CGST Act, 2017 - Applicant appears to have misconstrued the sale of Biomass power plant by way of sale as a going concern as supply of services whereas the same is supply of goods by way of transfer as a going concern, and have thus wrongly claimed eligibility towards exemption from GST under serial no.2 of Notification no. 12/2017-Central Tax (Rate) dated 28.6.2017. Thus on the basis of documents furnished by the applicant, we come io the considered conclusion that the instant transaction by the applicant is not eligible to the benefit of Notification No. 12/2017-Central Tax (Rate) New Delhi, the 28th June, 2017 supply of goods, attracting GST at the applicable rate.
Exemption provided under serial no.2 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 is not applicable to the said intrastate supply of Biomass Power Plant (8 MW Capacity) as a going concern. GST at the applicable rate is leviable on the said supply.
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2020 (11) TMI 1083
Levy of GST - amount recovered/forfeited from employees who are leaving the services during probation period - HELD THAT:- As the recovery of salary in the instant case does not fall within the ambit of supply i.e. sale, transfer, etc. set out under sub-Section (1) of Section 7, and it being excluded activities or transaction of services by an employee to the employer in the course of or in relation to his employment as stipulated vide clause 1 of Schedule III supra, the conditions of Section 7 of CGST Act, 2017 is not satisfied and accordingly the transaction in question cannot be termed as a “supply” within the meaning of Section 7 and therefore, cannot be subjected to levy of GST. The employee opting to resign by paying amount equivalent to one month's salary in lieu of notice has acted in accordance with the contract. The employee is free to tender his resignation, make payment of one-month salary and quit. Hence, there is neither any active nor any passive role played by the employee. The same is nothing but transactions pertaining to services by employee to the employer in the course of or in relation to the employment.
As the activities or transactions in question do not satisfy the test of “supply” under Section 7 of the CGST Act, 2017, levy under Section 9 is not attracted here.
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2020 (11) TMI 1082
TP Adjustment - determination for ALP for provision of SWD services - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list.
Addition u/s 40A(7) - assessee company had failed to communicate the changes/ alterations made to the fund, as required under Rule 4(2) of the Fourth Schedule of IT Act and the contribution to fund is only a provision and not an actual expense under the purview of section 37(1) - HELD THAT:- Identical issue arose in assessee’s own case for AY 2010-11 [2017 (11) TMI 1861 - ITAT BANGALORE] as upheld the action of the DRP in deleting the addition made by AO.
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2020 (11) TMI 1081
Conversion of the land to industrial use - Whether the land in question which is situate at 12/6, Sector 27C, Faridabad and situated on the Mathura Road has been converted to industrial use? - HELD THAT:- In order to enable this Court to have an authoritative statement of the factual position from an official source entrusted with the authority to take the decision on conversion of land use, notice is issued to the State of Haryana, Haryana Shahari Vikas Pradhikaran (HSVP) and to the Director of Town and Country Planning. They shall before the next date of listing file affidavits indicating whether permission was granted for conversion of the land to industrial use.
The above direction is passed having regard to the provisions of the Punjab Scheduled Road and Controlled Area Restriction of Unregulated Development Rules 1965, more particularly Rules 26(A) to 26(F) - List the appeals on 2 December 2020.
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2020 (11) TMI 1080
Call for record under FEMA - reasonable time to call for information - Assistant Director, Directorate of Enforcement has called record/documents from the petitioner exercising power under Section 37 of Foreign Exchange Management Act, 1999 read with Section 133 (6) of the Income Tax Act, 1961 - As LD counsel submits that information sought from the petitioner is of export transactions since 2010 onwards and as such the information which has been sought by the respondent cannot be furnished by the petitioner, as record from the year (2 of 2) [CW-12937/2020] 2010 onwards, cannot be maintained by any person under the law also reasonable time does not mean that information can be called after inordinate delay of about 10 years - HELD THAT:- Issue notice of the writ petition as well as stay application, returnable on 17th December, 2020. Notices be given ‘dasti’, if prayed. In the meanwhile, further proceedings in pursuance of show cause notice dated 24th July, 2020 shall remain stayed.
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2020 (11) TMI 1079
TP Adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee engaged in Software Development Services and provides maintenance of service to ARM Limited, UK and ARM Inc, US need to be deselected from final list.
Working Capital Adjustment - Direct the TPO to grant Working Capital Adjustment after verification and examination of the assessee computation and allow the ground of appeal of the assessee for statistical purposes.
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2020 (11) TMI 1078
Grant of bail - Whether restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions given by the Hon’ble Apex Court in SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONRE VERSUS UNION OF INDIA [1994 (10) TMI 290 - SUPREME COURT] in the matter of grant of bail to undertrials in NDPS cases?
HELD THAT:- It is the duty of every Court including the High Courts when faced with the question of “bail or jail” to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so, would create privileged oases of liberty accessible to few and denial of freedom to most.
Delay may also be caused by an accused and it is nobody’s case that such a litigant can derive benefit out of his own wrong. However, the principle of apportionment of responsibility in the matter of delay in trial must be counteracted in the backdrop of the constitutional duty of the State to ensure effective and speedy prosecution. The Constitution assures every individual the precious right of personal liberty and when it is forfeited by the State to ensure administration of criminal justice a heavy corresponding duty is cast on it to ensure speedy conclusion of trial minimizing under trial detention - there are no special feature relating to contributory role of the petitioner in the inordinate delay in trial. Absence of forensic laboratories, under staffing in those laboratories, inadequate number of prosecutors and frequent transfer of official witnesses cause chronic delay in trial of narcotic cases.
he directives in Supreme Court Legal Aid Committee applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution.
The petitioner shall be released on bail upon furnishing a bond of Rs. 2,00,000/- with ten sureties of Rs. 20,000/- each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, North 24 Pargans, subject to the conditions that petitioner shall appear before the trial court on every date of hearing until further orders - Let this matter appear on 15th January, 2021.
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2020 (11) TMI 1077
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has produced on record all the invoices raised against the Corporate Debtor. The Operational Creditor stated that it did not receive outstanding amount from the Corporate Debtor. This fact remains unchallenged on record against the Corporate Debtor - The evidence on record shows that the Corporate Debtor has received the notice under Section 8 of the I.B. Code. The Corporate Debtor neither replied the notice pointing out any pre-existing dispute nor made payment of debt amount.
The Operational Creditor did not suggest the name of any Resolution Professional for the appointment of Interim Resolution Professional ("IRP") and left the matter to the discretion to this Adjudicating Authority.
The Corporate Debtor in Corporate Insolvency Resolution Process under Section 9 of the I.B. Code is admitted - moratorium declared.
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2020 (11) TMI 1076
Disallowance u/s.14A r.w.r 8D - assessee has earned tax free income from Bonds and dividend income on shares held as ‘stock-in-trade’ - HELD THAT:- Whether dividend is earned or not is immaterial. It is quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the intention of the assessee is to trade in shares to earn profits. Hon’ble Supreme Court approved the order in the case of PCIT vs. State Bank of Patiala,[2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT] albiet for a different reason that provisions of section 14A would not get attracted where the shares are held in ‘stock-in-trade’,
Following the judgment rendered in the case of Maxopp Investment P. Ltd. (supra), the Tribunal in the case of Asstt.CIT vs. UCO Bank [2018 (3) TMI 805 - SUPREME COURT], Punjab National Bank [2019 (1) TMI 1625 - ITAT DELHI] and IDBI Bank Ltd. [2020 (1) TMI 213 - ITAT MUMBAI] has held that disallowance under section 14A r.w.r. 8D of the Act in case of assessee engaged in Banking business and holding shares as ‘stock-in-trade’ is not warranted.
CIT(A) has restored the issue of disallowance under section 14A r.w.r. 8D of the Act to Assessing Officer to decide the issue in line with the order of Tribunal in assessee’s own case for assessment year 2010-11. We observe that the Co-ordinate Bench while adjudicating the issue of disallowance under section 14A r.w.r. 8D of the Act for assessment year 2010-11 in appeal by the assessee [2016 (1) TMI 1427 - ITAT MUMBAI] has in turn followed the order of Tribunal in assessee’s own case for assessment year 2008-09, wherein the issue was restored to Assessing Officer with a direction to examine the same afresh. The Tribunal while deciding the appeal of assessee for assessment year 2010-11 was not having the benefit of judgment rendered in the case of Maxopp Investment P. Ltd. (supra). The Tribunal passed the order on 08/01/2016 and the judgment in the case of Maxopp was delivered in February 2018. Even the judgment in the case of Pr.CIT vs. State Bank of Patiala[2018 (3) TMI 805 - SUPREME COURT] and Pr.CIT vs. Punjab and Sind Bank[2019 (11) TMI 342 - DELHI HIGH COURT] are subsequent to the order of Tribunal.
Thus, in the light of the decisions discussed above, we hold that no disallowance under section 14A r.w.r. 8D of the Act is warranted where the assessee has earned exempt income on shares/stocks held as ‘stock-in-trade’. Consequently, the sole ground raised in appeal by the assessee is allowed and corresponding ground No.1 raised in the appeal by the Revenue is dismissed.
Bad Debt Written off - assessee has claimed bad debts written off with regard to non-rural branches - AO after examining assessee’s claim concluded that as per provisions of section 36(1)(viia), the deduction is available only to the extent of 10% of aggregate average advances made by rural branches and an amount not exceeding 7.5% of the gross total income - HELD THAT:- The Tribunal in turn following the order in assessee’s own case for assessment year 2007-08 [2015 (11) TMI 1058 - ITAT MUMBAI] decided the issue in favour of assessee.
Deduction u/s.36(1)(viii) - HELD THAT:- Tribunal vide order [2016 (1) TMI 1427 - ITAT MUMBAI] has remitted the issue back to the file of AO to allow the deduction based on actual interest earned from eligible advances after deducting cost and expenses on reasonable basis. CIT(A) has restored the issue to AO to follow the directions of Tribunal. DR has not brought before the Bench any material to controvert the findings of Tribunal in immediately preceding assessment year . We see no infirmity in the findings of CIT(A), hence, the same are upheld. The ground No.3 of appeal by the revenue is dismissed.
Deduction u/s.36(1)(viia) - HELD THAT:- We find that the CIT(A) after examining the findings of Assessing Officer and the submissions of the assessee held that the issue is covered by the decision of Tribunal in the case of State Bank of Mysore [2009 (5) TMI 610 - ITAT BANGALORE]
Applicability of provisions of section 115JB - HELD THAT:- We hold that sub-section 115JB as it stood prior to its amendment by virtue of Finance Act, 2012, would not be applicable to a banking company. We answer the question No.2 in favour of the assessee and against the revenue. In view of this, question of correctness of the order of rectification passed by the AO becomes unimportant. Question No.1 is therefore not answered. All the appeals are dismissed.
MAT applicability - HELD THAT:- As provisions of section 115JB of the Act does not get attracted in the case, of Nationalised Banks, assessee being the one.
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2020 (11) TMI 1075
Global Trade Development expenses (GTD expenses) - Disallowance of the said expenses were not incurred in accordance with the aims and objectives of the appellant society, failing to appreciate the contemporaneous evidences filed on record substantiating the business nexus of said expenditure - HELD THAT:- The assessee has aimed through GTD, issues such as immigration policies, visa regimes, software quality standards. WTO and free trade in services data security and next generation best practices and the importance of collaboration and trade cooperation, especially during these times of economic recession. The assessee is working closely with the Indian Government to represent the true potential of Indian IT Industry for increasing the Indian market share in Information and Communication Technology (ICT) and helping to ensure that the Governments of other nations do not create impediments to free trade or barrier-free business exchanges.
GTD expenditure incurred for the above purpose primarily consisted of Consulting fees paid to various international firms in respect of their strategic and tactical planning for positioning IT industry of India vis-a-vis the foreign country's economic outlook, Expenditure on global protectionism sentiments and campaign, Expenditure in public relations/ public awareness and Travelling expenses.
We also find that the similar expenses has been allowed in [2019 (5) TMI 1158 - ITAT DELHI] wherein it was held that the disallowance of GTD expenses are not sustainable on the grounds that the purpose of such expenditure and the benefits derivable there from is aimed at benefitting L.C.T & Business Process Management (BPM) industry as a whole, which not denotes the member fraternity of the assessee, but also the industry at large in India. The monetary and in principal support to GTD activity by Government of India clearly establish the utility of such expenses for the India I.T. Industry as a whole.
Thus keeping in view the activities of the assessee and its relevance to the expenses incurred, the continuous stand of the revenue to allow such expenses in all the previous and subsequent years, we hereby hold that the disallowance confirmed by the ld. CIT (A) is liable to be quashed. Appeal of the assessee is allowed.
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2020 (11) TMI 1074
Revocation of leave granted to the appellant/plaintiff to sue them - infringement of patent of the appellant/plaintiff - HELD THAT:- Within the city of Madras, both the City Civil Court presided by District Judges has additional courts which is also and the High Court have jurisdiction to entertain civil suits relating to violation of Patent. Under Clause12 of the Letters Patent, a plaintiff may file a suit in the High Court before the Original Side when the cause of action has wholly or partly arisen within its territorial limits, notwithstanding the fact that the defendant may not be carrying on business within its territorial limits - Chartered High Courts governed by the Letters Patent have been given discretion to grant a leave to sue to the plaintiff/plaintiff under Clause 12 of the Letters Patent. Where either a part of cause of action arises within its jurisdiction or where the defendant(s) reside(s) outside its jurisdiction, the High Court exercises this discretion at the threshold even before the plaint is received for being numbered as a suit.
Since the dispute in the present case pertains to the alleged violation of the patents of the appellant/plaintiff, the jurisdiction of Court under Clause 12 of the Letters Patent has to be read in conjunction with Section 104 of the Patents Act, 1970 and not in conjunction with Section 104A of the Patent Act, 1970. Section 104 of the Patent Act - Section 104A of the Patent Act, 1970 is not concerned with Jurisdiction of the Court. It is concerned with burden of proof in case of a process patent as is evident from a reading of Section 104A of the Patent Act, 1970.
For granting leave, the Court should consider the grant of leave from the angle of Forum non conveniens/Forum conveniens. They are the relevant factor for the Court while either granting or revoking leave under Clause 12 of the Letters Patent. What exactly is the purport of Forum non conveniens/Forum conveniens and how it has been decided and considered have not been clearly spelled out by the domestic Courts in India - The object of the doctrine of Forum Non Conveniens is “to find that forum which is the more suitable for trying the suit to meet the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends. The onus lies on the defendant to show that there exists another forum which is more appropriate to try the action.
This appeal filed by the appellant/plaintiff is allowed.
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2020 (11) TMI 1073
Effect of moratorium on passing of Liquidation order - HELD THAT:- It is not in dispute that impugned order has been passed subsequent to the order of liquidation being passed by this Adjudicating Authority in the case of Corporate Debtor. The legal position is that on passing of the order of liquidation, the moratorium placed under Section 14 of IBC, 2016 comes to an end. Further, as per provision of Section 33(5) of IBC, 2016, the legal proceedings can be continued against the Corporate Debtor during the course of liquidation.
There are no merit in this application. The same is, therefore, dismissed.
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2020 (11) TMI 1072
Seeking reconsideration of Scheme of Compromise and Arrangement under Section 230 of the Companies Act, 2013 - HELD THAT:- The Corporate Debtor is under liquidation since 11th January, 2018. The Scheme of Compromise and Arrangement for revival of the Corporate Debtor (Company) has been rejected by the secured creditors.
Admittedly, 90 days’ limit from the date of the order of liquidation has elapsed. Now after lapse of more than two years, the Adjudicating Authority has declined to reconsider the Scheme on the same grounds as were taken earlier for approval of the Scheme. The revised Scheme placed by Shareholders before the Creditors has been rejected. It is noticed from the impugned order that the creditors have objected to the addition of ‘TEV Study’. It goes without saying that the Scheme of Compromise sought to be reconsidered on the basis of ‘TEV Study’ could not be forced upon the stakeholders who were unwilling to consider the same even after addition of ‘TEV Study’ - no change in circumstances warranting reconsideration at the hands of the Adjudicating Authority was made out and the Adjudicating Authority was right in dismissing the application.
Appeal dismissed.
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2020 (11) TMI 1071
Vivad Se Vishwas Scheme - Permission seeking withdrawal of the appeals - HELD THAT:- Assessee has requested for withdrawal of the appeals filed by the assessee and stated that the assessee has opted to settle the dispute relating to the tax arrears for the assessment years under consideration under the Vivad Se Vishwas Scheme, 2020. Certificates to this effect under Section 5(1) of The Direct Tax Vivad Se Vishwas Act, 2020 have also been filed.
DR has no objection. In view of the above, we accept the request of the assessee for withdrawal of the appeals.
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2020 (11) TMI 1070
Seeking grant of regular bail - adoption of fraudulent means to usurp the scholarship amount - HELD THAT:- In Sanjay Chandra's case [2011 (11) TMI 537 - SUPREME COURT], the Hon'ble Apex Court has held that it is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the accused is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter the Court from enlarging the accused on bail when there is no serious contention of the State that the accused, if released on bail, would interfere with the trial or tamper with evidence.
It is deemed appropriate to negate the contention of learned State counsel for dismissal of the bail in view of serious allegations and pending investigation of the case. Petitioner is in judicial custody since 07.09.2020 and is not required for any further investigation of the case. The offences are triable by the Magistrate.
It is deemed appropriate to enlarge the petitioner on regular bail - petition allowed.
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2020 (11) TMI 1069
Rejection of application for Advance Ruling by the AAR as sub-judice - Input Tax Credit - Authority for Advance Ruling observed that on the issue of admissibility of ITC in respect of goods/ services received while constructing Hotel including restaurant & banquet hall, on which applicant has sought advance ruling, is pending
HELD THAT:- The appellant's contentions about the interpretation of the term "an applicant" used in Section 98(2) of CGST Act 2017. English has two articles, the and a an. The is used to refer to specific or particular nouns; a/an is used to modify non-specific or non-particular nouns. The is called definite article and a/an is called the indefinite article. The use of the article 'an' before the noun applicant is meant to denote non-specific. In other words, the term "an applicant' has to mean any applicant and not a particular applicant. Thus. The interpretation of 'an applicant' made by the AAR in their Ruling cannot be faulted.
In fact, in spite of being pointed out by the appellant about the show cause notice mentioning only two issues in common with the writ, it appears that the applicant was summarily rejected without in depth scrutiny.
The Ruling is set aside and the matter is remanded for fresh consideration.
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2020 (11) TMI 1068
Territorial jurisdiction - Transfer of the case - the ld. Addl. Sessions Judge ceased to have jurisdiction in respect of Karkardooma Courts matters upon being transferred with immediate effect - validity of Note 2 appended to the transfer order dated 13th March, 2020 which empowered the judicial officers to pronounce the judgment/order in the reserved matters.
HELD THAT:- Article 227 of the Constitution empowers the High Court with the superintendence over all the Courts and Tribunals throughout its territory. The power of superintendence under Article 227 includes the administrative as well as judicial superintendence i.e. the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Articles 227 and 235 of the Constitution empowers the High Court to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and control over subordinate Courts including matters with respect to the posting and promotion of Judicial Officers.
Code of Criminal Procedure vests plenary powers in the High Court relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 33 provides that the Judicial Officers shall have the powers conferred upon them by High Court and High Court is empowered to withdraw the powers conferred on any officer - Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice.
There are two types of jurisdictions of a Criminal Court, namely, (i) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (ii) the territorial jurisdiction. While the former goes to the root of the matter and any transgression makes the entire trial void, the latter is not of a peremptory character and is curable under Section 462 CrPC. Territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the witnesses who have to appear before the Court - The Code of Criminal Procedure does not impose a bar on pronouncement of orders/judgments by the Judge who recorded the entire evidence and heard the matter or who heard the matter finally after evidence was recorded by someone else, merely because the said Judge has been transferred to another Court.
In the present case, ld. Addl. Sessions Judge concluded the hearing of the oral arguments on 06th March, 2020 when he reserved the judgment. The Ld. Addl. Sessions Judge pronounced the judgment in open Court on 09th July, 2020. The pronouncement of the judgment by the ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay of over four months in delivering the judgment by the ld. Addl. Sessions Judge is a mere irregularity since it has not caused any prejudice to the accused and is, therefore, curable.
Victims are unfortunately the forgotten people in the criminal justice delivery system. The criminal justice system tends to think more of the rights of the offender than that of relief to the victims. The anxiety shown to highlight the rights of the offender is not shown in enforcing law relating to compensation for the victim, which too has a social purpose to serve - The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored, nor can its loss be measured by the length of a prison sentence. No term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish but then monetary compensation will at least provide some solace.
Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated. In order to give complete mental satisfaction to the victim, it is extremely essential to provide some solace to him in the form of compensation so that it can work as a support for the victim to start his life afresh.
Sections 357 and 357A of CrPC - Compensation to victim(s) of crime - HELD THAT:- Section 357 CrPC empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victims that they are not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 CrPC depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay for which the Court has to conduct a summary inquiry - The law contained in Section 357(3) CrPC, has, by and large, been mostly neglected or ignored.
There is, therefore not only statutory empowerment under Section 357(3) CrPC of the appellate court to make an appropriate order regarding compensation but the mandatory duty of every court, at the trial stage as well as the appellate court to consider and pass an order of fair and reasonable compensation on relevant factors.
Principles in regard to methodology of assessing compensation - HELD THAT:- The multiplier method is based on the pecuniary loss caused to the dependants by the death of the victim of the road accident. The dependency of the dependants is determined by taking the annual earning of the deceased at the time of the accident. Thereafter, effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made - The annual loss of dependency of Rs.90,000/- is multiplied by the multiplier of 15 to compute the total loss of dependency as Rs.13,50,000/-. Compensation has to be added towards loss of love and affection, loss of consortium, loss to estate, medical expenses, emotional harm/trauma, mental and physical shock etc. and funeral expenses.
Interim compensation - HELD THAT:- In Bodhisattwa Gautam v. Subhra Chakraborty, [1995 (12) TMI 420 - SUPREME COURT], the Supreme Court held that the Court has the right to award interim compensation and the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offence.
Code of Criminal Procedure vests in the High Court plenary powers relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 194 empowers the High Court to direct a Sessions Judge to try particular cases. Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side - Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3 of Part B of Chapter 26 of Delhi High Court Rules empowers the High Court to transfer the cases on administrative grounds. To summarize, the High Court has both judicial as well as administrative power to regulate administration of justice.
The ld. Addl. Sessions Judge was duly empowered to pronounce the judgment by virtue of Note 2 appended to the transfer order dated 13th March, 2020. The pronouncement of the judgment by ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay in pronouncing the judgment is a mere irregularity and is hereby condoned.
Notwithstanding validity of Note 2, the impugned judgment is also protected by Sections 462 and 465 CrPC and the de facto doctrine.
Victimology - HELD THAT:- Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims” family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace - Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated.
Sections 357 & 357A of CrPC - HELD THAT:- The object of the Section 357(3) CrPC is to provide compensation to the victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread earner of the family - The Supreme Court in Ankush Shivaji Gaikwad [2013 (5) TMI 1015 - SUPREME COURT] has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons.
Quantum of compensation - HELD THAT:- The amount of compensation is to be determined by the Court depending upon gravity of offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income.
Financial capacity of the accused - HELD THAT:- Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto.
Victim Impact Report - HELD THAT:- This Court has formulated the format of Victim Impact Report (VIR) to be filed by DSLSA in every criminal case after conviction. Victim Impact Report (VIR) shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases, other than motor accident cases, is Annexure B-1. The format of Victim Impact Report in respect of motor accident cases is Annexure B-2.
Summary Inquiry - HELD THAT:- A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused - This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry.
The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same - If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.
Delhi State Legal Services Authority is directed to prepare a proposal for additional manpower after examining number of summary inquiries that are likely to be conducted by DSLSA every month and the proposal be sent to Government of NCT of Delhi within one week whereupon Government of NCT of Delhi shall complete all necessary formalities within three weeks to ensure that the directions of this Court relating to the summary inquiry by DSLSA in every criminal case are implemented w.e.f. 01st January, 2021 - List for reporting compliance and further directions on 25th February, 2021.
This Court is of the view that the mandatory summary inquiry by DSLSA into the loss/damage suffered by the victim and the paying capacity of the accused after conviction; and the affidavit of accused in format of Annexure-A; and Victim Impact Report by DSLSA in the format of Annexure-B and Annexure B-1 should be incorporated in the Statue/Rules - National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of this judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent to National Judicial Academy.
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