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Showing 441 to 460 of 703 Records
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2009 (10) TMI 536
Whether there exist proper pleadings in the present case?
Held that:- Appeal allowed. In the present case the facts indicate that, by this writ petition, the original petitioner (Borrower) has sought damages and enforcement of contractual commitments which, in our view, were beyond the scope of a writ petition. Adjustment of accounts and enforcement of back-to-back transactions with a party with whom there was no privity of contract coupled with the claim for damages are all contractual matters un-enforceable by way of writ petitions. Thus the High Court should not have entertained the writ petition, particularly when contractual disputes requiring evidence existed between the borrower and lender.
As in the present case, it was agreed by and between PFC and the borrower that soft loan would be disbursed by PFC only if SIDB1 releases the amount under the re-finance arrangement between PFC and SIDBI. In the original writ petition, there is no prayer for specific performance of the re-finance agreement, assuming for the sake of argument that such a plea is tenable. Thus set aside the impugned judgment of the High Court on the ground that the writ petition instituted by the borrower was misconceived.
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2009 (10) TMI 535
Winding up - Held that:- In the instant case, in view of the civil disputes between the parties and particularly when the petitioner is not satisfied with the decree passed in his favour and has even preferred an appeal before this Court and in the face of there being a security for the outstanding dues of the petitioner given by the respondent, thus the case falls under an exception and no discretion can be exercised in favour of the petitioner under section 433(e) of the Act.
Though the just and equitable clauses can be pressed into service for winding up of a company where substratum of the company has gone or where the company is formed for the purpose of fraud or where full investigation is necessary or where there is a complete deadlock in the management of the company on account of internal strife, none of the above situations exist in the instant case and neither has the petitioner made out a case on this ground. On the other hand, what is of significance is that the respondent is a company in the realm of public sector coming under the Ministry of Heavy Industries, Government of India supported by the Central Government and having a huge work force and was one of the top public sector companies once upon a time. Though presently the company is in a difficult financial situation, would not mean that it is just and equitable to wind up the said company. Petition dismissed.
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2009 (10) TMI 534
Whether the case falls within the jurisdiction of the arbitrator?
Whether the procedural requirements under section 8(2) of the Act had been complied with to the satisfaction of the court?
Whether the arbitrator was competent to deal with the dispute raised by the parties?
Held that:- Appeal dismissed. Since the original deed was not filed within the requirement of section 8(2) of the Act, it must be held that the mandatory requirement under the Act had not been complied with. Accordingly, even if we accept the factum of a dispute relating to the retirement of the appellant under the original deed dated 7 April, 2003, still the court would not be empowered to refer the matter to an arbitrator due to the non-compliance of the provisions mentioned under section 8(2) of the Act.
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2009 (10) TMI 533
Winding up - company petition was presented on the premise that in respect of certain commission due to the petitioner-company - learned Company Judge had ordered the parties to appear before the Bangalore Mediation Centre on 15-10-2009
Held that:- Reference to the manner in which shareholding pattern was changed, the manner in which the shareholding in the company was transferred to other companies and several subsidiaries and also acquired substantial shareholding in the appellant-company as to how one outsider was controlling the whole thing while not having the name of the appellant-company and on such circumstances what was noticed by the learned Company Judge being prima facie material of evasive method being resorted to by the company was satisfied about the transactions being not bona fide and therefore the learned Company Judge thought it fit to admit the petition.
No perversity nor any illegality in the impugned order passed by the learned Company Judge, more so, when the company petitioner had approached the Court for seeking an order to wind up the affairs of the appellant-company on the twin grounds as noticed earlier, we do not find any material in this appeal even for admission and it is accordingly dismissed at the admission stage.
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2009 (10) TMI 532
Rectification in the register of members of the company - Held that:- There is a great distinction between the first appellant being a member of the company and having locus to maintain a petition for rectification within the scope of section 111 of the Act and the first appellant being entitled to challenge the legality of the claim for ownership put forth, by the second and the fourth respondent, on the basis of the transfer forms sent by the erstwhile owner/member and that question could become an issue only at the instance of the legal heir of the deceased person and not at the instance of a person like the first appellant herein, who is an outsider to the question.
Thus the petition filed by the first appellant herein along with other appellants did not merit examination before the Company Law Board within the scope of a petition under section 111 of the Act and the Company Law Board has rightly dismissed such a petition.
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2009 (10) TMI 531
Legality and validity of the notice dated 30th April, 2009 issued by the respondent-bank in terms of sub-section (2) of section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Inerest Act, 2002 questioned
Held that:- In the instant case, the conduct of the writ petitioner which lulled the respondent-bank into a some kind of hybernation is a factor which has its own role in contributing to the delay in taking measures by the respondent-bank under sub-section (4) of section 13. Therefore, any intervention by us at this stage would only be putting a premium to such a conduct of the writ petitioner. Hence, for this reason also, we refrain from interfering with the impugned notice.
Pursuant to section 17 read with section 18 of The Recovery of Debts Act, the jurisdiction of the civil courts is ousted and the Tribunal constituted under the said Act alone has jurisdiction to recover the magnitude of debt, like in the present case. Therefore, the contention of the learned counsel for the writ petitioner that the respondent-bank cannot fall back upon the provisions contained under sub-section (4) of section 13, but must fall back upon the option of going to the civil court is a contention which disregards the provision of the Recovery of Debts Act which ousted the jurisdiction of the civil court. At any rate, any such option to fall back upon the otherwise normal mode of recovery, will be a far more time consuming affair and that would, even according to the writ petitioner, be further compounding the mischief to him. Therefore, it would be wholly in the interests of the writ petitioner to prevent the debt from escalating any further. Hence, for this reason also, we do not see any reason to interfere with the impugned notice. Appeal dismissed.
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2009 (10) TMI 530
Whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant?
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2009 (10) TMI 529
Gazette Notification No. 43 dated October 12, 2007 published in the Gazette of India dated October 12, 2007, by which the name of the company, Gautam Buddha Children's Hospital Private Limited has been struck off from the Register of Companies under section 560(5) of the Companies Act, 1956 seeked to be quashed
Held that:- in view of the audit reports of accounts submitted by the petitioner-company and the statements of the bank annexed that the company has been carrying on its business and is in operation continuously and it is certainly not a defunct company. Had the Registrar taken care by following the mandatory provisions prescribed under the Act, he would have discovered that the company was not defunct and its name could not have been struck off by the Registrar of Companies in exercise of his power under section 560(5) of the Act.
The Registrar of Companies has further shown non-application of mind as the very filing of the subsequent application for change of name of the petitioner-company, which was allowed by the Registrar, would show that the earlier application dated August 29, 2000, was impliedly withdrawn by the said action of the directors of the company and the plea taken by the Registrar in his reply that no such letter of withdrawal was filed is without any basis. Thus striking off the name of the company from the Registrar of Companies is illegal and non est.
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2009 (10) TMI 528
Winding up petition - Held that:- Applying the principle that after commencement of the arbitration proceedings, no company petition for winding up can be admitted and having regard to the financial status of the respondent-company, it is of the view that the company petition filed by the petitioner-company to wind up the respondent-company is not maintainable and the same is liable to be dismissed and accordingly dismissed.
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2009 (10) TMI 527
Post sale approval seeked in respect of the property belonging to the company (in liquidation) has been dismissed doubting, the bona fides of the sale made apart from other grounds - Held that:- A perusal of the order dated October 12, 2004, passed by the Debts Recovery Tribunal would show that the property was required to be auctioned and a detailed order has been passed in that regard.
There is no whisper in the application with regard to publication of any notice or compliance with the directions issued by the Debts Recovery Tribunal. The conclusion reached by the learned company judge holding that the sale was not bona fide stands further fortified as the appellant has failed to show that the directions issued by the Debts Recovery Tribunal were not violated. Accordingly, it has to be held that the sale is fraudulent and it suffers from numerous lapses. Therefore, the post sale approval cannot be accorded and we find no legal infirmity in the impugned order dated May 7, 2009, passed by the learned company judge. Appeal dismissed.
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2009 (10) TMI 526
Winding up petition - whether this company petition filed before this court for winding up of the respondent-company for non-payment of the alleged debt of ₹ 1,37,68,025.73 is maintainable when the petitioner has already filed application seeking appointment of an arbitrator under section 11 of the Arbitration and Conciliation Act, 1996, for determining the very same claim ?
Held that:- Having regard to the undisputed fact that the petitioner has already filed application under section 11 of the Arbitration and Conciliation Act, 1996, for appointment of an arbitrator to resolve the dispute arising out of bill dated February 22, 2008, it is of the view that the company petition filed for winding up of the respondent-company is not maintainable.
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2009 (10) TMI 525
Restoration of company name in the register of the Companies - Held that:- Having considered the averments made by the petitioner in the petition and also the arguments of learned counsel for the petitioner and after going through the provisions of section 560(6) of the Act, it is satisfied that the petitioner has made out a case for restoration of its name in the register of the companies. Appeal allowed.The name of petitioner-company is directed to be restored by the respondent in the register of companies treating as if its name was never been struck off from the rolls of the register.
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2009 (10) TMI 524
Issues:
Petition under section 560(6) of the Companies Act seeking restoration of company's name in the Register of Companies.
Analysis:
The petitioner-Company filed a Company Petition under section 560(6) of the Companies Act, seeking direction to restore its name in the Register of Companies. The petitioner was incorporated to carry out business activities related to petrochemicals, pharmaceutical drugs, and other related products. The Company's status was erroneously shown as "struck off" on the Ministry's website. The petitioner claimed to have no creditors, with only two Directors who were actively involved in the operations of the Company. The petitioner contended that the Company was in operation before the Registrar's order to strike off its name and that the business activities were ongoing. The Company had fixed assets and cash balance as per the audited Balance Sheet.
The Court noted that the respondent Registrar did not file a reply nor appeared to oppose the petition. Considering the circumstances and the provisions of section 560(6) of the Act, the Court found merit in the petitioner's case. The Court held that it would be in the interest of justice to order the restoration of the Company's name in the Register of Companies. Therefore, the petition was allowed, directing the Registrar to restore the name of the petitioner-Company in the Register as if it was never struck off. The petitioner was instructed to provide a certified copy of the order to the Registrar for further necessary actions. No costs were awarded in this matter.
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2009 (10) TMI 523
Restoration of company name in the register of the Companies - Held that:- Having considered the averments made by the petitioner in the petition and also the arguments of learned counsel for the petitioner and after going through the provisions of section 560(6) of the Act, it is satisfied that the petitioner has made out a case for restoration of its name in the register of the companies. Appeal allowed.The name of petitioner-company is directed to be restored by the respondent in the register of companies treating as if its name was never been struck off from the rolls of the register.
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2009 (10) TMI 522
Restoration of name on the Register of Companies seeked - Held that:- All that is shown is a notice dated 6-7-2007, which does not mention the fact that within three months of the same cause is to be shown to the contrary. As a matter of fact, the Registrar of Companies did not even wait for the statutory three months period before passing the order, rather the final order in the matter was passed on 31-7-2007, itself striking off the name of the company from the Register of Companies which was published in the Gazette of India dated 18-8-2007. Even the gazette publication is within a month and 12 days of the notice dated July 6, 2007 and thus there has been complete violation of the provisions of sub-section (3) of section 560 of the Act. Apart from the same the fact that up to date statutory returns had already been filed in the month of February, 2007, itself has not been taken note of by the Registrar of Companies and thus he has issued the notice under sub-section (3) of section 560 of the Act which is contrary to the records available with him at the relevant time.
In the above circumstances, the impugned order dated 31-7-2007, contained in the Gazette of India dated 18-8-2007, is non est, illegal and void ab initio which cannot stand and it is, accordingly, quashed. The name of the company shall thus stand restored to the Register of Companies as though it had never been struck off from the same.
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2009 (10) TMI 521
Deduction u/s 80-IA(4) - Appointment of Third Member - AO did not allow the deduction as in his opinion the assessee had not fulfilled conditions stipulated in sub-section (4) inasmuch as the infrastructure was not owned by the assessee-company - CIT(A) came to hold that the assessee could not be called as a Developer in the sense of section 80-IA because no agreement was signed by it with the Central Government or State Government or local authorities for development of projects under BOT or BOOT scheme - Difference of opinion between the ld' JM and the ld' AM - AM did not concur with the view expressed by the learned JM in granting deduction u/s 80-IA(4) in respect of all the projects undertaken by the assessee. On illustrative basis he explained the facts of Koyna project in which the assessee was a sub-contractor. Then he took note of the amendment made in section 80-IA by the Finance Bill, 2007 by which an Explanation has been introduced with retrospective effect from 1-4-2000. In the opinion of the learned AM even if there was some lack of clarity in the main provision, the new Explanation clarified the position that no deduction could be allowed. That is how this matter is before the instant Larger Bench.
Whether it is reference under sub-section (3) or (4) of section 255? - As the reference stood already made by the members of the Division Bench u/s 255(4) when they shortlisted their difference of opinion by formulating the questions, the constitution of Larger Bench by the Hon’ble President under such compelling circumstances was only u/s 255(4) and not u/s 255(3). The reference to sub-section (3) by the Hon’ble President in this reference appears to be only with a view to nominate a Larger Bench of three members so that there may not be any problem of majority opinion on the applicability or otherwise of Explanation below section 80-IA(13) inserted by the Finance Act, 2007.
We, therefore, clarify that for all practical purposes it is a reference to the Larger Bench comprising of three members u/s 255(4) of the Act.
Permission to intervene and extent of intervention in proceedings under section 255(4) - The intervention can be allowed only to that aspect of the legal issue which is before the Bench in the proceedings under section 255(4). No other aspect even of the same legal issue which is subjudice before the Bench, can be allowed to be argued. As the decision of the Bench under section 255(4) has to be only on the point or points by which the members of the Division Bench differed, it cannot be called upon to express opinion, either generally or specifically, on any aspect of the matter other than that which is under consideration. We, therefore, permit the interveners to address the Bench only on the legal issue raised before us and not to transgress the boundaries inherently set up by the questions under consideration.
Whether the Tribunal has to decide an issue on the basis of the law as it stands on the day of the passing of the order?- A.R. argued that the learned Accountant Member passed his order by taking cognizance of the provisions of Finance Bill, 2007 which were not enacted by that time - HELD THAT:- Once a proposal in the Finance Bill is converted into provision in the Act, such provision becomes applicable. Lot of emphasis has been laid by the learned A.R. on the proposition that when the learned AM passed his order, the said Explanation to section 80-IA was merely a proposal in the Finance Bill and not enacted. It is observed that the Finance Bill, 2007 became Act on receiving the assent of the Hon’ble President of India. The learned AM passed his order on 21-5-2007, i.e., after the enactment of Explanation below section 80-IA(13).
It is, therefore, clear that when the learned AM passed his order, the Explanation to section 80-IA had already come into force with retrospective effect from 1-4-2000. Thus, it is evident that this issue has been needlessly dragged by the learned A.R., which otherwise has no legs to stand on.
Applicability of law standing on the day of the passing of the order - When an amendment is carried out to a particular section with retrospective effect, the authorities before whom the matter is pending, are bound to apply the amended law even if it sees the light of the day after the passing of the order by the authorities below it. Thus, any retrospective amendment made to a particular provision covering the year in dispute, needs to be given effect to on any matter pending before any authority, notwithstanding the fact that such amendment was carried out after the passing of the assessment order. Therefore, it is not permissible to argue that the Tribunal is incompetent to take cognizance of any provision which comes into existence with retrospective effect, on the issue pending before it. However, it is of paramount importance that before applying such amended provision, aggrieved party must be given an opportunity of hearing.
Whether a Bench u/s 255(4) can take note of a provision inserted with retrospective effect having bearing on the issue, coming into existence after the passing of separate orders by the dissenting members but during the pendency of dispute before the Bench under sub-section (4) of section 255? - The very purpose of conducting judicial proceedings by Bench under section 255(4) “for hearing on such point or points” depicts that the parties are at liberty to advance any legal submission before the Bench on the question before it, even if such submission was not made at the time of hearing before the Division Bench. Making of additional legal submission by the parties in the proceedings under section 255(4) is poles apart from the proscription on the parties in filing additional evidence before the Bench which was not made available to the Division Bench. Thus, it is clear that both the parties are at liberty to raise any legal submission in respect of the question before the Bench under section 255(4) notwithstanding the fact that such submission was not or could not have made earlier.
It is unrealistic to argue that the later amendment in the statutory provision or development of law on the question which is pending in dispute relating to the year, should be ignored. Not following such amendment would give absurd results and the order so passed will be rendered erroneous.
There remains no doubt whatsoever that the retrospective amendment is a good ground for the rectification of an order. When the retrospective amendment is a valid ground for rectification of the order, we fail to see as to why such amendment be not applied when the proceedings are continuing under section 255(4). We, therefore, hold that the Tribunal is not empowered but duty bound to apply such retrospective amendment made to the relevant section after allowing chance to the aggrieved party to address on such retrospective amendment concerning the dispute in question. We, therefore, answer this question in affirmative by holding that the Tribunal has to decide an issue on the basis of the law as it stands on the day of the passing of the order.
Entitlement for deduction u/s 80-IA(4) - ascertaining the meaning of the words ‘contractor’ as well as ‘developer’ - HED THAT:- We find it as an undisputed position that the words ‘developer’ and ‘contractor’ have not been defined in or for the purposes of section 80-IA. It is a settled legal position that ordinarily the meaning or definition of a word used in one statute cannot per se be imported into another as has been held by the Hon’ble Supreme Court in the case of Union of India v. R.C. Jain [1981 (2) TMI 200 - SUPREME COURT].
Therefore, the meaning of the words ‘developer’ and ‘contractor’, as put forth before us by the rival parties from other legislations, be they State or Central enactments, cannot be automatically applied in the present context. In order to ascertain the meaning of a word not defined in the Act, a useful reference can be made to the General Clauses Act, 1897.
It is noted from the material on record that the assessee was given civil construction work to be done strictly according to the plan laid down by the State Government/Statutory Authorities. Such authorities have been referred to as ‘the owner’ and the assessee as the ‘joint venture’ for executing the contract. The sphere of work assigned to the assessee is simply to do the specified job of civil construction. It is not involved in the planning and development of the infrastructure facility as a whole.
Therefore, the claim of the assessee fails on both the counts, viz., it is neither a developer nor it fits into any of the two categories of the eligible businesses of (i) developing, (ii) maintaining and operating infrastructure facility on one hand or (iii) developing, maintaining and operating any infrastructure facility on the other.
When we examine the mandate of clause (i) of sub-section (4) of section 80-IA it transpires that the eligible enterprise must fulfil all the conditions set out in sub-clauses (a), (b) and (c ) of section 80-IA(4)(i).
Here it is important to notice that the transfer of infrastructure facility from one person to another should be only for the purpose of operating and maintaining it on its behalf and that too in accordance with the agreement with Central/State Government or Local Authority or Statutory Body, etc. We find that the assessee has failed to satisfy the condition as enshrined in sub-clause (c) as it had neither started operating and maintaining the infrastructure facility nor it transferred anything to someone else for operating on its behalf and still further there is no question of concurrence of the concerned authority as there is no such clause in any of the agreements with them. Rather there cannot be any question of such operation or maintenance since the infrastructure facility is not at all owned by the assessee.
From the foregoing discussion it is manifest that the assessee failed to satisfy the conditions as laid down in clause (i) read with those mentioned in sub-clauses (a) to ( c) of sub-section (4) of section 80-IA. It cannot be conferred with the benefit as provided in section 80-IA. It is merely doing work of civil construction, which is a part of the entire infrastructure project and not the whole of it. The claim made on behalf of the assessee that on account of its association with the infrastructure facility in any manner, even though partly, the eligibility for deduction is earned, is untenable.
In the present case, the infrastructure facilities in respect of which the assessee is claiming deduction, are being set up by the State Government(s) or local/statutory authorities and the assessee is simply engaged in some construction work, thereby contributing partly in the attainment of the object of developing the infrastructure facility. Under such circumstances, it does not qualify for deduction within the framework of sub-section (4)(i) itself.
Effect of the insertion of Explanation below section 80-IA(13) by the Finance Act, 2007 which was subsequently substituted with a new Explanation by the Finance Act, 2009 with retrospective effect from 1-4-2000 - The position which was earlier apparent on a careful look of the provisions of sub-section (4) has now been made available even at the cursory look through the Explanation by clarifying the hitherto intention of the Legislature that no person executing the works contract shall be eligible for deduction under section 80-IA, even if it is an enterprise as referred to in sub-section (1). The language of this Explanation makes it crystal clear that the benefit under sub-section (4) cannot be provided to a business referred to in sub-section (4) which is in the nature of works contract awarded by any person including the Central or State Government and executed by the undertaking or enterprise referred to in sub-section (1). From the memorandum explaining the rationale behind the substitution of Explanation it can be easily seen that the Legislature clarified its intention beyond any doubt that the deduction cannot be allowed in relation to an eligible business which is in the nature of works contract. Even if one presumes, for a moment, that all the conditions set out in sub-section (4) clause (i) are satisfied, which are actually not fulfilled in the instant case, and the enterprise is covered under sub-section (1), then also deduction cannot be allowed in relation to a business which is in the nature of a works contract.
As provision should be strictly construed as regards the applicability to the case of the assessee. It is only when the applicability is found that the process of liberally interpreting the same commences. Here is a case in which the assessee does not satisfy the applicability condition itself as the profits from works contract awarded to it are excluded from the ambit of the deduction under this provision.
Without the aid of Explanation to this section, we have concluded above that the conditions set out in sub-section (4) clause (i) are not satisfied and, hence, the assessee cannot claim deduction under this section. The insertion and substitution of the Explanation is only to clarify that the deduction cannot be allowed in relation to a business in the nature of works contract under any circumstance. In other words, the view emerging from the careful circumspection of sub-section (4) has been endorsed by the Explanation and that too with retrospective effect from 1-4-2000 thereby covering both the years under consideration. We, therefore, answer question No. 1 in negative by holding that the assessee is not entitled to deduction under the provisions of section 80-IA(4) in respect of the projects undertaken.
We agree with the view expressed by the ld. Accountant Member and direct listing of the matter before the Division Bench, for passing an order in accordance with majority view.
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2009 (10) TMI 520
Interpretation of the second paragraph submitted by respondent No. 1 (Arraycom) - According to the High Court, the bid of Rs. 51.57 crores was an inclusive bid and no amount of Central sales tax could have been added to that amount - Held that:- Appeal allowed. Paragraph 2 of the bid of Arraycom is ambiguous and this is the fault of Arraycom itself by giving such an ambiguous proposal. Respondent No. 1 should have given a clear cut bid either by stopping after the first sentence, or by adding another sentence after the second sentence that even if the concessional forms C/D are not given the bid of Rs. 51.57 crores is an inclusive bid.
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2009 (10) TMI 516
Whether sub-section (2B) of section 9 of the Central Sales Tax Act, 1956, inserted on May 12, 2000 by the Finance Act of 2000 is retrospective?
Whether section 120 of the Finance Act, 2000 which was a validating Act was invalid inasmuch as it purports to validate a provision which had never existed in the statute book?
Held that:- Appeal dismissed. clause (d) of sub-section (2) of section 120 which, inter alia, states that any proceeding, act or thing which could have been validly taken but not taken may, after commencement, be taken, continued or done. Clause (d), gives a complete answer to the contention advanced by the assessee on retrospectivity. Section 120 of the Finance Act, 2000 makes sub-section (2B) effective right from the very first date of commencement of the 1956 Act, i.e., January 5, 1957.
In conclusion, that in none of these cases, the assessee has challenged the constitutional validity of sub-section (2B) inserted vide Finance Act, 2000 with retrospective effect. In the circumstances, we are not required to express any opinion on the constitutional validity of the said sub-section particularly, in the context of retrospectivity.
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2009 (10) TMI 512
Issues:
- Delay in filing appeal before CESTAT
- Justification for condonation of delay
- Mandatory deposit under Section 35F of the Central Excise Act, 1944
- Discretionary nature of delay condonation plea
- Bona fide belief in appeal filing
- Direction to pay a specific amount to second respondent
- Stay on balance amount pending appeal disposal
Analysis:
The writ petition challenged the order of the CESTAT dismissing an appeal due to a delay of 596 days. The Tribunal found the reasons provided insufficient for condonation of such a significant delay. The petitioner argued financial difficulties, lack of guidance due to the absence of a key personnel, and the Managing Director's illness as causes for the delay. The petitioner contended that these circumstances led to the delay and that the Tribunal erred in not considering these factors, leading to the present writ petition seeking to set aside the CESTAT's order.
The second respondent, in a counter affidavit, highlighted the outstanding duty amount, penalty, and interest totaling Rs. 43,41,591, of which the petitioner had only paid Rs. 10,65,068 under protest. The respondent emphasized the mandatory nature of depositing the duty or penalty under Section 35F of the Central Excise Act, 1944 before filing an appeal. The failure to make this deposit was cited as a reason for not granting any leniency to the petitioner.
Upon hearing both parties, the Court acknowledged the discretionary nature of delay condonation but emphasized that the Tribunal had not adequately considered the reasons for the delay provided by the petitioner. The Court accepted the petitioner's argument that confusion arose due to similar order numbers for the appealed and to-be-appealed orders, leading to the mistaken belief that the appeal had been filed. Consequently, the Court set aside the Tribunal's order and directed the Tribunal to accept and decide the appeal on its merits.
Considering the substantial delay, the Court directed the petitioner to pay Rs. 10,00,000 to the second respondent within four weeks. The Tribunal was instructed to proceed with the appeal upon proof of payment, while the balance amount owed by the petitioner was stayed pending the appeal's disposal. The writ petition was allowed without costs, and the connected motion was closed.
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2009 (10) TMI 505
Capital or Revenue Expenditure – Agreement with NTPC for power supply - The assessee also put up its power plant at that place for generation of electricity for its aluminium plant. - Since the expenditure for creating these systems were huge assessee decided to share the facilities available with NTPC. – held that:- expenditure incurred are revenue in nature. Deferment of revenue expenditure – period of five years. - held that:- no doubt till 1991-92, the part of the expenditure was allowed every year. It was loosely called as depreciation. What can be said is that the revenue expenditure was allowed every year at the rates on which depreciation is allowed. Since this was wrong practice adopted, the C&AG rightly advised the assessee to change the accounting method to bring it in tune with ICAI guidelines. What is done now from the Assessment Year in question is that it is the. correct step as it should have been taken in accordance with law and therefore, this could have been deprecated and claimed disallowed totally as done by the AO. – Decided in favor of assesse. Admission of additional grounds by the tribunal u/s 254 – held that:- both the conditions for raising this additional ground stood satisfied, viz., ground related to the tax proceedings of the assessee for the Assessment Year under consideration and the necessary facts were also available on record. – Decided in favor of assesse. Depreciation on non-operating plant and machinery – held that:- the PSL equipment was purchased and put to use by the assessee in previous year relevant to the Assessment Year 1990-91 and the same had entered into the block asset in that year. It thus lost individual identity for the allowance of depredation in that year. Since It is not in dispute for the year in question and block of assets was used, the assessee was rightly given the benefit of deprecation in the years in question. The question stands answered against the Revenue.
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9911796707
