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Showing 41 to 60 of 1664 Records
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2022 (9) TMI 1626
Money Laundering - proceeds of crime - predicate offences - schedule offences - offences punishable under Section 13(1)(e) r/w 13(2) of Prevention of Corruption Act, 1988 - HELD THAT:- This Court, while considering an identical issue, in the case of VIJAY MADANLAL [2022 (7) TMI 1316 - SUPREME COURT], has held 'The solitary circumstance which would enure to the benefit of the accused in both these cases is acquittal of accused 1 and 2 in Criminal Appeal No. 414 of 2016 and the said acquittal becoming final and all the allegations of offences under the Act being linked to the offence under the IPC against accused 1 and 2. Therefore, if the proceedings under the PML Act are permitted to be continued in the teeth of the undisputed facts and the judgments of the Apex Court (supra), it would become an abuse of the process of the law and would result in miscarriage of justice.'
In the light of the facts obtaining in the case at hand and the judgment rendered by this Court, if the proceedings under the PMLA are permitted to be continued qua the petitioners, it would become an abuse of the process of law and would result in miscarriage of justice.
The impugned proceedings in Special Case No. 59/2016 pending before the III Additional District and Sessions and Special Judge, D.K., Mangaluru stand quashed - The Criminal Petition is allowed.
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2022 (9) TMI 1625
Money Laundering - predicate offence - Continuance of proceedings under the PML Act post-acquittal - offences punishable under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 - HELD THAT:- The petitioners who were alleged of offences punishable under the PC Act i.e., Section 13(1)(e) read with Section 13(2) of the Act has been acquitted after a full blown trial in the year 2021. By then, the judgment of the Apex Court in the case of VIJAY MADANLAL CHOUDHARY [2022 (7) TMI 1316 - SUPREME COURT] was yet to be pronounced. The Apex Court rendered its judgment in the aforesaid case on 27.07.2022. The issue in the case at hand stands completely covered by the judgment rendered by the Apex Court in the case of VIJAY MADANLAL CHOUDHARY.
The issue in the case at hand need not detain this Court or delve into the matter. In the teeth of the facts narrated hereinabove, permitting further proceedings to continue would run foul of the law laid down by the Apex Court and would become an abuse of the process of law, resulting in miscarriage of justice.
The complaint registered against the petitioners by the Directorate of Enforcement, Bengaluru Zone, Bengaluru and the proceedings against the petitioners pending before the III Additional District and Sessions Judge, D.K., Mangaluru in Spl.C. No. 74/2018, stand quashed - Criminal Petition is allowed.
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2022 (9) TMI 1624
Seeking quashing of the LOCs issued against petitioner - borrower of huge loan or guarantor of laon - Merely on the ground that the petitioner is a guarantor for the loans taken by the two entities, and there is a default by the said Companies, can the petitioner be prevented from travelling abroad and her fundamental right under Article 21 of the Constitution of India be curtailed? - HELD THAT:- The right to travel abroad has been recognized by the Supreme Court of India in the case of MANEKA GANDHI VERSUS UNION OF INDIA [1978 (1) TMI 161 - SUPREME COURT] and Satish Chandra Verma Vs. Union of India [2019 (4) TMI 1765 - SUPREME COURT], as falling within the scope of personal liberty enshrined under Article 21 of the Constitution of India. Thus, to deny a person such a right requires a very high threshold.
LOCs were permitted to be opened essentially against persons involved in cognizable offences and who were evading arrest and not appearing in the trial Court despite NBWs or other coercive measures and there was a likelihood that they would leave the country to evade trial/arrest. It was intended as a coercive measure to make a person surrender to the investigating agency or Court of law - But where the subject of the LOC is not involved in any cognizable offence, he or she cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases.
Merely because the word ‘public’ is used in the exception clause in the OM, it does not elevate a mere default to an exceptional plane. It cannot be said that the departure of the petitioner from the country would adversely impact the economy of the ‘country as a whole’ and destabilize the ‘entire economy’ of the country - Since the right to travel abroad flows from Article 21 of the Constitution of India, a very high threshold has to be is mandated to deny such a right to an Indian citizen. Such a threshold is not met in the instant case.
In the instant case, when the petitioner is not alleged to have committed any cognizable offence, she could not have been prevented from leaving the country by respondents by issuing LOCs and such action is clearly violative of the Office Memorandums dt.27.10.2010 and dt.22.02.2021.
The petitioner is permitted to travel abroad for two months subject to her depositing a sum of 50 Lakhs with the Registrar (General) of this Court in the form of an FDR. This condition is being imposed as the loan accounts of the 2 Companies for which she is a guarantor had been declared a ‘fraud’ as mentioned above. As and when she returns to India, she should produce her Passport before the Registrar (General) who shall then return the said FDR to her - Petition allowed.
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2022 (9) TMI 1623
Maintainability of petition - availability of expeditious and effective remedies under the SARFAESI Act - Prayer to issue a Writ of Certiorari, to quash the possession notice and impugned demand notice 13(2) of SARFAESI Act, 2002 - HELD THAT:- As per Section 18(1) of the Act, any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed, to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal - The first proviso states that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower. The second proviso to Section 18 of the Act states that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less - The third proviso states that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty five per cent of debt referred to in the second proviso.
As per Section 18(2) of the Act, save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.
As regards the Non-Maintainability of writ petition under Article 226 against proceedings under SARFAESI Act, reliance placed in the case of United Bank of India v. Satyawati Tondon [2010 (7) TMI 829 - SUPREME COURT] where it was held that 'while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the giievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.'
As regards non-maintainability of the writ petition against Private financial institutions like asserts re-construction companies in respect of their action under SARFAESI Act, it is relevant to consider the decision of the Hon'ble Supreme Court in Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [2022 (1) TMI 503 - SUPREME COURT] wherein, it has been held 'If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable.'
The petitioner is directed to pay the entire outstanding amount, deducting the amount already paid within a period of three months. Till then, respondents are directed not to take any coercive steps. If the petitioner fails to comply with the above said order, it is open to the respondents Bank to proceed further in accordance with law.
The petition is disposed off.
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2022 (9) TMI 1622
Admissibility of writ petition and the requirement to avail alternative remedy - arguement is that once a writ petition was admitted for hearing, the petitioner cannot be relegated to avail alternative remedy - HELD THAT:- In Durga Enterprises (P) Ltd. the Hon'ble Supreme Court had observed that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. What cannot be lost sight of the fact is that the writ petition was pending for a long period of 13 years. The aforesaid case does not lay down as a proposition that invariably whenever a writ petition is admitted, it has to be heard on merit and the writ Court cannot exercise discretion to relegate the petitioner to avail alternative remedy.
In Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti [2008 (5) TMI 642 - SUPREME COURT], it was observed by the Hon'ble Supreme Court that issuance of rule nisi or passing of interim orders is a relevant consideration for not relegating the petitioner to avail alternative remedy if it appears to the High Court that the matter could be decided by a writ Court. It was observed that there is no proposition in law that once a writ petition is admitted, it could never be dismissed on the ground of alternative remedy.
A perusal of the aforesaid two judgments would go to show that as a proposition of law it cannot be countenanced that once a writ petition is entertained and admitted, the same cannot be dismissed on the ground of availability of the alternative remedy at the time of hearing.
It is opined that it is not a case where the writ Appellate Court ought to exercise discretion to entertain the writ petition. There are no infirmity with the view taken by the learned Single Judge for relegating the petitioner to avail alternative remedy.
The writ appeal fails and is dismissed.
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2022 (9) TMI 1621
Imposition of penalty u/s 122(2)(a) of the CGST Act - no separate notice was issued directing to pay penalty - Violation of principles of natural justice - HELD THAT:- As per Sections 73 and 74 of CGST Act, a SCN has to be issued and the same has to be adjudicated following due process of law. Though, the learned counsel for the Petitioner pleaded that, no separate notice was issued directing to pay penalty, there is no effective denial in the counter. On the other hand, a perusal of the material on record would show that, a notice in Form GSTR-3A came to be issued on 04.02.2019 and the same is served immediately without waiting for statutory period of 15 days, as contemplated under Section 46. An Assessment Order came to be passed under Section 62 on the very next day i.e., 05.02.2019 directing payment of tax, interest and penalty.
Issue identical to the case on hand came up for consideration in M/S. S.P.Y. AGRO INDUSTRIES LIMITED., VERSUS UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE COMMISSIONER OF CUSTOMS AND CENTRAL TAX TIRUPATI GST, THE ASST. COMMISSIONER OF CENTRAL TAX, THE SUPERINTENDENT OF CENTRAL TAX, M/S MYLAN LABORATORIES LIMITED AND OTHERS [2020 (11) TMI 712 - ANDHRA PRADESH HIGH COURT] and PARVATHI REDDY SANNAPU VERSUS UNION OF INDIA CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE SUPERINTENDENT OF CENTRAL TAX, [2021 (5) TMI 416 - ANDHRA PRADESH HIGH COURT], wherein in both the cases, the Order under challenge was set-aside for not following the procedure established by law, which amount to violating the principles of natural justice and, accordingly, the order impugned was set-aside and matter was remanded back to the authorities to deal with the matter afresh.
Petition disposed off.
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2022 (9) TMI 1620
Accrual of income in India or not - Royalty receipts - receipts of the assessee, earned from providing satellite transmission services - India-Netherlands DTAA - HELD THAT:- Admittedly, the question of law urged in the present appeal is covered by the decision of this Court in assessee’s own case in Director of Income Tax vs. New Skies Satellite BV [2016 (2) TMI 415 - DELHI HIGH COURT]
Appellant states that the Revenue has not accepted the aforesaid decision and has preferred a Special Leave Petition against the same being Civil Appeal [2024 (4) TMI 1175 - SC ORDER (LB)] Though the judgment of this Court has been challenged and is pending adjudication before the Supreme Court, yet there is no stay of the said judgment till date.
Consequently, in Kunhayammed and Others vs. State of Kerala and Another, [2000 (7) TMI 67 - SUPREME COURT (LB)] and Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras [1992 (4) TMI 183 - SUPREME COURT] the present appeal is covered by the judgment passed by the learned predecessor Division Bench in New Skies Satellite BV (supra).
No substantial question of law arises for consideration in the present appeal and the same is dismissed.
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2022 (9) TMI 1619
Illegal or unjustifiable termination - Failure on the part of workman to establish the existence of employer-employee relationship - statement of claim of the workman dismissed for being devoid of any merits.
Whether there existed an employer employee relationship between the Management and Sh. Kaushal Kishor Singh S/o Sh. Netra Pal Singh and if so, whether services of Sh. Kaushal Kishor Singh have been terminated illegally and/ or unjustifiably by the Management and if so, to what relief is he entitled?
HELD THAT:- This Court cannot sit in an appeal and substitute its view with that of the Ld. Labour Court. Ld. Labour Court in cases pertaining to industrial dispute is the final adjudicator of facts. This court in its writ jurisdiction have to be circumspect and cannot entertain petitions unless the award is perverse, illegal, if there is an error apparent on the face of the record, if there is impropriety in the decision-making process, or if the same is passed without jurisdiction. Further, this court in its writ jurisdiction cannot reappraise the evidence and come to a different conclusion.
Reliance is placed on Syed Yakoob vs KS Radhakrishnan & Ors. [1963 (10) TMI 26 - SUPREME COURT], Hari Shankar Sharma vs Artifical Limbs Manufacturing Corp. & Ors. [2001 (11) TMI 1061 - SUPREME COURT], Sadhu Ram vs DTC [1983 (8) TMI 313 - SUPREME COURT], General Manager ONGC, Silchar vs ONGC Contractual Workers Union [2008 (5) TMI 758 - SUPREME COURT].
The law is well settled that the burden of proving the relationship of employer and employee lies on the workman. The inference regarding this relationship has to be inferred from facts and circumstances in each case and no general view can be taken in such matters.
In the present case the award is well-reasoned and has been passed after duly considering and evaluating the evidence placed on record. Ld. Labour Court has rightly appreciated that the workman has failed to establish the relationship of employer-employee with the management. A bare perusal of the documents filed as evidence on behalf of the petitioner workman, which includes the various emails and the forms under 16A, do not, in any way, prove that there existed any relationship of employer – employee between the parties - Moreover admittedly, the petitioner had never applied for any employment with the Management in writing. As per petitioner, he had an oral interview with one Sh. Sanjay Malik from the management in 2011. It is an admitted fact that neither any written examination was conducted and nor any offer/ appointment letter was issued to the petitioner.
The documents relied upon by the petitioners are not sufficient to establish an employer-employee relationship and are of doubtful origin. These documents would have some value only if there were some basic primary nature of evidence of more acceptable type as already mentioned in the form of ESI, PPF records maintained by the company or PPF No. etc. which liability the company would not have escaped if the workman was working there. There is no evidence of even leave taken or refused during the alleged tenure - there existed no relationship of employer and employee between the parties.
This Court is of the opinion that this is not a case where Labour Court has failed to take into consideration the documents produced by claimant-petitioner. In fact, after extensively considering the entire documents on record, Labour Court had reached the conclusion that there exists no employer and employee relationship between respondent-Company and appellant- petitioner. Moreover, as the findings arrived at by the Labour Court are neither perverse nor based on no evidence, this Court is of the view that they call for no interference in writ jurisdiction.
Thus, it cannot be said that the findings and the order passed by the learned Labour Court, suffers from any such inherent illegality, jurisdictional error, or perversity, as would justify interference, therewith, by this Court, in exercise of the limited jurisdiction conferred, on it by virtue of Article 226 of the Constitution of India - there are no reason to differ with the findings of the learned Labour Court, to the effect that there exists no relationship of employer-employee between the parties and that the petitioner was not a part time workman, but a freelance guide.
The present writ petition is dismissed.
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2022 (9) TMI 1618
Jurisdiction of Assessing Authority - legality of finding given by the Assessing Authority based on advanced ruling - HELD THAT:- In so far as levying tax, on supply of Flats that are assigned to the landowners, with regard to the Joint Development Agreement, the Assessing Authority relied on advance ruling which he could not have done in view of Section 103 of the G.S.T. Act.
In so far as disputed tax on other heads are concerned, the respondents shall not take any coercive steps subject to petitioner depositing 25% of the disputed tax under other two heads within a period of three (03) weeks from today, in default the stay stands vacated.
List on 12.10.2022.
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2022 (9) TMI 1617
TDS u/s 194I or 194C - Expenses on common area maintenance service - short deduction of TDS - demands raised u/s 201(1) and 201(1A) - HELD THAT:- Sec 194I is applicable only in case of rent may be on plant and machinery (@ the rate of 2%) and for the use any land or building or land appurtenant to a building. In this case assessee is paying a rent/lease charges for the office premises which includes AC etc. and charges for the same already included in the rent.
But the extra assessee is paying is for AC maintenance (not AC rent) housekeeping, security and common area maintenance charges. These payments nowhere related to sec 194I maybe the same has been fixed on a Lum sum basis pm. For these charges the relation of assessee is not of lessor and lessee but of contractor and service taker, which falls in the category of as defined in sec 194C.
We direct the A.O to delete the demands raised u/s 201(1) and 201(1A), after due verification
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2022 (9) TMI 1616
Seeking withdrawal of petition - HELD THAT:- The present petitions are required to be filed before the Nagpur Bench of this Court. The petitioners are permitted to withdraw these petitions and present the same before the Nagpur Bench of this Court.
Petition disposed off.
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2022 (9) TMI 1615
Petitioner’s claim for disbursal of incentive under “West Bengal State Support for Industries Scheme, 2008 as amended up to 2010 - petitioner prays for making the Scheme compliant with the GST regime which subsequently came into effect - HELD THAT:- Upon considering the Scheme and the fact that the GST regime has come into place since 2017, the respondents should take expeditious steps to make the Scheme GST-compliant for the benefit of industrial units which fall under the Scheme. The industrial units like the petitioner cannot be kept in a limbo and denied the incentives, which were specifically promised to these units at the time of introduction of the Scheme from 2008 onwards. There is a definite case of legitimate expectation in the present case and the petitioners are entitled to be provided with clarity in that regard.
Appeal disposed off.
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2022 (9) TMI 1614
Show cause notice issued under Black Money Act - the basis for issuance of show cause notice is the assessment made against the petitioner by the Deputy Director, Income Tax (Inv) Unit 8(4) and said order is subject matter of appeal before CIT (A) and same is pending - Pending the said civil litigation, respondents cannot take criminal action - HELD THAT:- As the petitioner has filed reply to the said show cause notice and also sought documents on which the respondents intends to rely upon.
As respondent nos. 2 and 3 seeks time to make submissions and/or file affidavit upto 17/11/2022.Place the matter on 17th November 2022.
As the time is sought by respondent nos. 2 and 3, till the next date, respondent nos. 2 and 3 shall not proceed further pursuant to the impugned show cause notice.
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2022 (9) TMI 1613
Territorial Jurisdiction - Abuse of dominant position - Contravention of the provisions of Section 19(1)(a) of the Competition Act 2002 - alleged discriminatory treatment of MSOs in the State of Kerala - HELD THAT:- The power conferred upon the High Court to issue directions, orders or writs can be exercised by the High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. The Court exercising power under Article 226 of the Constitution can issue writs detailed under clause 1 to the person or authority situated beyond its territorial jurisdiction provided cause of action wholly or partly arises within the territorial jurisdiction of the court entertaining the Writ Petition.
The identification of the relevant geographical market or territoriality is the statutory embodied feature in the Competition Act and is a foundational to any inquiry by the CCI. The relevant geographical market in the present case is within the State of Kerala and not beyond the State of Kerala.
In the present case, the impugned investigation has been ordered in respect of the agreements entered into by the present Petitioner with others having its area of operation in the State of Kerala. Hence, if at all, the further orders would have effect, it would be for the area of operation in the State of Kerala. The entire investigation to be conducted is with regard to the agreements entered into by the parties for its operation in the geographical area of Kerala. The complainant in its complaint before the CCI has never alleged that the Petitioners herein have committed anti competitive act with the parties in the State of Maharashtra. The allegations are restricted to the State of Kerala. The scope of complaint of the Respondent / Complainant before the CCI does not include the contracts or the anti competitive acts with any party within the State of Maharashtra. In view of that it cannot be said that the effect and consequences of the impugned order would be felt in the State of Maharashtra.
Petition disposed off.
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2022 (9) TMI 1612
Validity of order of Competition Commission of India - clubbing of information which had been received by the Commission along with Suo Motu Case - HELD THAT:- The Court at the outset notes that the petitioner is undisputedly a subsidiary or sister concern of Facebook Inc. While the petitioner has explained its connect with Facebook Inc. to be limited to providing sales and marketing services relating to advertising in India and other support services to it, the Court finds itself unable to shut its eyes to the evident and apparent bond and association between the two. Regard must also be had to the fact that the principal order of the Commission dated 24 March 2021 had while outlining the issues which merited further investigation made repeated reference to the provisions of the Privacy Policy of WhatsApp and the disclosure and sharing of user data by it with Facebook, its subsidiaries, sister concerns and other Facebook companies. The Commission ultimately came to conclude that the sharing of data by WhatsApp with other Facebook companies raised tangible questions which warranted investigation under the Act.
Scope of the investigation is thus apparently not merely limited to the operations and conduct of business by WhatsApp and Facebook Inc. alone but also extending and stretching to the subsidiaries and other companies incorporated by the latter. The petitioner cannot possibly dispute the fact that it is a sister concern of Facebook Inc. present in India. In view of the above, the impugned order of the Commission clubbing the information received in respect of its activities with the Suo Motu Case was not only justified but also imperative for the purposes of the investigation.
The Court also deems it apposite to observe that Cadila [2018 (9) TMI 844 - DELHI HIGH COURT] has lucidly explained the scope of the expression “subject matter” as occurring in Section 26(1) as not being restricted merely to the allegations levelled but other “allied and unenumerated” aspects and even to include third parties. It would be pertinent to recall that Cadila was a case where a party was joined by the Director General during the investigation even though no directions had been framed against it by the Commission in its order made under Section 26(1).
The challenge to the order of the Commission impugned herein ultimately must also be evaluated bearing in mind that the power exercised by it at the Section 26(1) stage has been aptly described as being a “departmental function” and a “preparatory measure”. This essentially since at that stage the Commission is not adjudicating upon the rights of parties. It is merely setting up the stage for the commencement of an enquiry.
While passing a direction to investigate under Section 26(1) the Commission is merely calling upon the Director General to assist it in evaluating whether an infraction of the Act has been made out. On an overall conspectus of the aforesaid discussion, the Court comes to the conclusion that the instant challenge is misconceived and clearly lacks merit.
Petition dismissed.
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2022 (9) TMI 1611
Reopening of assessment u/s 147 - LTCG earned by the petitioner through her financial transactions in the shares of Mahanivesh are bogus - HELD THAT:- Notice u/s 148A(b) and the notice u/s 148A(d) specifically identify the financial transactions undertaken by the petitioner in respect of Mahanivesh. The financial value of the transaction is also expressly provided in the notice and the impugned order. The basis for initiation of the inquiry being that, the scrip of Mahanivesh is a penny scrip is also stated in the notice dated u/s 148A(b).
The petitioner was therefore sufficiently informed that the initiation of reassessment proceeding was due to the fact that the AO had reasons to believe that the petitioner has earned bogus LTCG by trading in the penny scrip of Mahanivesh. Pertinently, in her reply dated 31st May, 2022, the petitioner has not responded to the allegation in the notice that Mahanivesh is a penny scrip.
The report sets out detailed facts leading to the conclusion that Mahanivesh is a penny scrip and the trade was undertaken between limited persons at pre-determined prices.
It has come on record that the detailed report of the Investigation Wing on the suspicious trading activity of Mahanivesh was not provided to the petitioner.
AO should have provided this Report in the first instance with the notice issued u/s 148A(b), especially when the assessee had requested for this information in her reply dated 31st May, 2022. We, therefore, find merit in the submission of the petitioner that the assessee has been denied an effective opportunity to answer the findings made in the Report with respect to the transactions undertaken by the assessee with Allied Nippon Limited and Lawrence Cold Storage Pvt. Ltd.
We set aside the order issued u/s 148A(d) and notice issued u/s 148 with a direction to the petitioner to file its additional reply, responding to the findings of the Report within two weeks. AO shall after considering the reply of the petitioner pass an order u/s 148A(b) within a period of eight weeks thereafter, in accordance with law.
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2022 (9) TMI 1610
Rejection of prayer for being impleaded as an informant in proceedings before the Commission - Section 26(1) of the Competition Act, 2002 - HELD THAT:- The Court firstly bears in mind the undisputed fact that upon conclusion of investigation, the Director General has already submitted a report which is to be taken up by the Commission for consideration on 28 September 2022. Viewed in that light it is evident that the prayer of the petitioner to the extent that it sought to be impleaded in the investigation proceedings has rendered infructuous.
The Court also notes that while rejecting the application for impleadment which was made on 07 December 2021 the Commission had taken into consideration the fact that the proceedings before the Director General were “at an advanced stage of investigation”. It was in that backdrop that the Commission had declined the request made by the petitioner here. The Court also notes that the petitioner cannot, strictly speaking, claim to have a direct interest in the investigation process especially when it only stood in the shoes of an informant.
Both Regulations 21 as well as 25 provide an opportunity to parties to address all submissions before the Commission for its consideration. In view of the above, the Court finds that not only would it be open for the petitioner to apply to the Commission in terms of Regulation 25 and to seek a right to address submissions, it could also, if so chosen and advised, address a prayer for being provided a copy of the investigation report or the extracts thereof - the Court finds no justification to issue any peremptory directions except to observe that it would be open to the petitioner to move the Commission under Regulation 25 and to address all issues before the said body.
Petition disposed off.
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2022 (9) TMI 1609
MSEDCL’s role and standing within the framework of the Resolution Plan - Is it a statutory creditor? - Have its claims for past dues been written off or reduced upon the sanction of the Resolution Plan? - Can these past dues be said to have been extinguished upon approval of the Resolution Plan? - Is it permissible for MSEDCL, whatever its description as a creditor to whom amounts are owed, to stand outside the Resolution Plan and raise its demands?
HELD THAT:- The company in question, Rainbow Papers, was drawn into the CIRP process by a petition filed by an operational creditor. An IRP was appointed. Claims were invited by newspaper advertisements. A CoC was constituted. Then a RP was appointed. The STO filed a claim before the RP claiming an amount of Rs. 46.37 crores that was due. That claim was filed beyond time. The Resolution Applicant submitted a Resolution Plan. Many creditors objected to it. There were further proceedings. On 22nd October 2018, the RP informed the STO that its entire claim was waived or extinguished. The STO challenged the Resolution Plan and made an application in the form of an IA contending that its dues could not be waived or extinguished. It sought payment of the entire amount. The NCLT rejected this application as not maintainable.
The last date for filing proof of claims was 17th December 2018. The extended date was 5th March 2019. The CoC approved the Resolution Plan on 3rd July 2019. MSEDCL’s application for payment of dues post the moratorium was filed only in August 2019. It was not until 14th October 2019 that MSEDCL first forwarded a claim to the RP, that is to say, about three months after the CoC had approved the Resolution Plan was on 3rd July 2019. Its demand under Section 56(1) did not come until 21st January 2021.
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2022 (9) TMI 1608
Appeal is admitted on substantial questions of law - additional depreciation for the previous year - Education Cess is allowable deduction under section 40(a)(ii) or not? - Employee’s contributions to PF & ESI to be governed by the provisions of Section 43B and separately dealt in section 36(va) - TP adjustment on account of Corporate Guarantee provided by the assessee to its foreign associate enterprises (AE) - determination of ALP of interest on loan
HELD THAT:- We are of the considered view that the above issue in the said case is fully factual. Therefore, the substantial question of law no.(8) is not admitted. Learned Advocate for the appellant shall file requisite number of informal paper books prepared out of Court within a period of 10 (ten) weeks from date including therein all relevant papers and documents serving a copy thereof on the learned Advocate for the respondent.
Let the appeal be listed after 12 (twelve) weeks.
Since the respondent is represented by their learned Advocate, service of notice of this appeal on the respondent stands waived.
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2022 (9) TMI 1607
Addition u/s 69A r.w.s. 115BBE - cash deposited during the demonetisation period - HELD THAT:- The assessee who is a registered Co-operative Credit Society cannot be considered to be the owner of the money, which only belongs to its members and same is retained by the assessee as its custodian. Further, from the perusal of the record we find that the assessee provided the details of cash deposited during the demonetisation period before the Assessing Officer in reply to the notices issued. From such reply filed by the assessee, forming part of the paper book, we find that assessee also provided name and address of the members who have deposited cash with the assessee during the year under consideration. Assessee has also provided the PAN number of some of its members. AO without commenting upon any of these details added the cash deposit made during the period of demonetisation as undisclosed income of the assessee.
AO has wrongly made the addition under section 69A of the Act, in respect of the cash deposit made during the demonetisation period.
Disallowance of deduction u/s 80P(2)(a)(i) - business of providing credit facilities to its members - HELD THAT:- There is no allegation of Revenue that assessee doesn‘t satisfy the condition under section 80P(2)(a)(i). Only on the basis that return of income filed by the assessee was not in conformity with Rule 12 of the Income Tax Rules, 1962 and was filed beyond time, same was treated as invalid. In this regard, it is relevant to note that in order to claim deduction under section 80P, requirement to file the return of income on or before the due date specified u/s 139(1) of the Act is relevant only from assessment year commencing on or after 1st day of April 2018, as per section 80AC of the Act.
Thus prior to its substitution by Finance Act, 2018 w.e.f. 01/04/2018, impediment provided under section 80AC was only confined to section 80-IA or section 80-IAB or section 80-IB or section 80-IC or section 80-ID or section 80-IE - after the substitution vide Finance Act, 2018, section 80AC is now also applicable to provision of Chapter VI-A under the heading "C.—Deductions in respect of certain incomes", which includes section 80P of the Act.
Additional restriction provided under section 80AC of the Act w.e.f. 01/04/2018, however, is applicable from assessment year commencing on or after 01/04/2018 i.e. assessment year 2018-19 and onwards. Thus, even after substitution, vide Finance Act, 2018, we are of the considered view that section 80AC is not applicable to the present case, as the year under consideration is assessment year 2017-18. Therefore, in absence of any other objection from the Revenue, in the present case, the assessee being a Cooperative Credit Society is entitled to claim deduction under section 80P(2)(a)(i) of the Act.
AO is directed to delete the impugned addition and grant deduction under section 80P(2)(a)(i) of the Act to the assessee.
Appeal by the assessee is allowed.
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