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Showing 461 to 480 of 782 Records
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2009 (2) TMI 462
Issues Involved:
1. Invocation of Section 483 of the Companies Act, 1956.
2. Condonation of delay in filing and re-filing the appeal.
3. Publication of the factum of admission of the company petition.
4. Requirement of notice before directing publication of the admission.
Issue-wise Detailed Analysis:
1. Invocation of Section 483 of the Companies Act, 1956:
The appellant, a company in liquidation, invoked Section 483 of the Companies Act, 1956, challenging the order dated 7-8-2008, which directed the publication of the admission of Company Petition No. 129 of 2004. The petition was initially admitted on 26-5-2005 due to the appellant's failure to file a reply despite repeated opportunities. The appellant was present during the admission, and the matter was listed for publication on 28-7-2005. The appellant challenged this order by filing Company Appeal No. 13 of 2008.
2. Condonation of Delay in Filing and Re-filing the Appeal:
The appellant filed applications to condone a delay of 1,050 days in filing the appeal and 72 days in re-filing it. The appellate bench condoned the 72-day delay in re-filing but declined to condone the 1,050-day delay in filing, stating that no sufficient cause was shown for such an inordinate delay. The bench emphasized that delays should be condoned to advance substantial justice only when no gross negligence or deliberate inaction is attributable to the party. The delay was deemed deliberate and lacking bona fides, thus rejecting the condonation request and dismissing Company Appeal No. 13 of 2008.
3. Publication of the Factum of Admission of the Company Petition:
The appellant had previously filed Company Application No. 732 of 2006, seeking details of dues from the respondent to settle accounts. However, the learned Company Judge directed the publication of the factum of admission on 7-8-2008, observing that the appeal against the order of admission had been dismissed. The appellant argued that if the details of dues were provided, they could have been settled, and the publication was premature. However, the court held that the publication was within jurisdiction following the dismissal of the appeal.
4. Requirement of Notice Before Directing Publication of the Admission:
The appellant contended that the court should have issued a notice before directing the publication of the admission, citing the Supreme Court judgment in National Conduits (P.) Ltd. v. S.S. Arora. The respondent countered that no such notice was required under the Rules or the cited judgment. The court agreed with the respondent, stating that Rule 96 of the Companies (Court) Rules, 1959, does not mandate issuing a notice to the company before publication. The court further clarified that the Supreme Court judgment in National Conduits (P.) Ltd. did not establish a precedent requiring notice before publication. Instead, it upheld the discretion of the Company Judge to suspend the advertisement of a petition in appropriate cases.
Conclusion:
The court dismissed the appeal, affirming that the learned Company Judge acted within jurisdiction by directing the publication of the admission. The appellant's arguments failed to demonstrate any procedural or legal errors warranting interference with the order dated 7-8-2008. The court emphasized that the delay in filing the appeal was inordinate and deliberate, lacking sufficient cause, and thus, the dismissal of the appeal and subsequent publication order were justified.
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2009 (2) TMI 461
Transfer of shares - Rectification of register on transfer - respondent filed a civil suit claiming for a declaration that they were the lawful owners of the shares in question and the appellant should be perpetually restrained from registering those shares and/or recording any transfer in respect of those shares in favour of any person other than the respondent -
Held that:- Share is a movable commodity. It can be sold by the holder to any one and he in turn to another one. However, those intermediaries do not ultimately figure in the transaction and do not have any consequence. Once the transfer is registered with the company it is registered on the basis of the transfer deed duly executed by the registered shareholder featuring in the records of the company in favour of the ultimate transferee who is seeking rectification. In the instant case, R.K. Chamaria and Company might be an intermediary and sale by Chamaria was of no consequence unless it was proved that the original shareholder executed a transfer deed in favour of the respondent who sought rectification of the share register. We are afraid, nothing came out in the evidence on that score and it would not be wise to grant approval to the rectification as directed by the Court below. At the same time, we feel that the appellant should take an impartial stand in the matter as mandated by law specially under section 111A of the said Act of 1956.
The judgment and decree passed by the Court below dated 23-7-2004, in T.S. No. 1997 of 1995 is set aside. The suit is remanded back to the Court below for a retrial with liberty to the plaintiff to adduce further evidence if they so chose.
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2009 (2) TMI 460
Amalgamation - approval of the proposed name of the company which is a part of the scheme of amalgamation sanctioned by an order of this Court dated 28-9-2008 - Held that:- Subject to any orders that may be passed, in the event of the Regional Director/RoC adopting any proceedings, the RoC is bound to comply with the order of this Court sanctioning the scheme including by changing the name as provided in clause 25 thereof.
In the circumstances, it must be held that refusal by the RoC to record the change in the name in compliance with the order of this Court dated 28-9-2008 is not justified.
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2009 (2) TMI 459
Winding up - Custody of company’s properties - whether the appellants in O.S.A. Nos. 130 to 132 of 2008 could seek for return of the title deeds from M/s. R.B.F. Nidhi Limited solely on the ground that Jamsheed M. Panday had deposited the title deeds contrary to the power of attorney given to him by way of the resolutions?
Held that:- On the given facts of the case, we are of the considered opinion that M/s. R.B.F. Nidhi Limited is entitled to invoke the provisions of section 171 relating to general lien and the claim of the appellants-companies seeking for redemption in terms of section 91 of the Transfer of Property Act must yield to such right and consequently the right to claim redemption cannot be accepted.
Thus the order of the learned Single Judge directing the return of the title deeds to the appellants is set aside and consequently, the said appeals are dismissed.
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2009 (2) TMI 458
Whether this is a case where jurisdiction under article 136 of the Constitution should be exercised?
Held that:- Appeal dismissed. There are some factual controversies, for example, the effect of the appellants ratifying the balance-sheet, appearing before the sales tax authorities and the undisputed position with respect to share application money as reflected in the financial statements. It is difficult to believe that even though the conversion of the share application money was done in June, 1994, October, 1994 and January, 1995, it was not in the knowledge of the appellants. The fact that the appellants were representing the company before various authorities including the sales tax authorities and income-tax authority clearly rules out the possibility of the appellants being unaware of the situation. It is true that the allotment of shares is different from receipt of share application money but the conduct of the parties and their understanding of the situation largely determines the basic issue.
Thus considering the nature of the controversy we do not consider this to be a fit case where any interference under article 136 of the Constitution is called for.
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2009 (2) TMI 457
Partial stay of realization of demand raised against the appellant granted - Held that:- As it is not in dispute that the directed amounts have been deposited. It is pointed out by learned counsel for the appellant that the writ petition has been heard and the judgments are awaited.
Thus we direct that till the disposal of the writ petition, there shall not be requirement for any further deposit. It is made clear that by giving this protection we are not expressing any opinion on the merits of the case.
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2009 (2) TMI 456
Whether the subject tools are in the nature of accessories to machines and, therefore, liable to entry tax?
Held that:- Appeal dismissed. What was argued before us was that lathe and drilling machines are non-functional without the subject tools whereas in the above paras before the authorities below, the assessee submitted that lathe and drilling machines can function without the subject tools. We may also note that the assessee has not led evidence before the adjudicating authority to show whether the lathe and drilling machines were non-functional in the absence of the subject tools.
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2009 (2) TMI 454
Whether the Commissioner on the administrative side under the Gujarat Sales Tax Act, 1969 had the authority/ competence to issue the 2001 circular?
Held that:- The High Court will decide the above questions on the merits without reference to the circulars dated February 19, 2001 or the circular dated September 2, 2005 and uninfluenced by the observations in the impugned judgment. The question whether the 2001 circular gives rise to accrued rights in favour of the assessees or whether the Revenue is estopped from impugning the legality of the 2001 circular will not be the subject-matter of the remand or any proceedings thereafter.
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2009 (2) TMI 451
Issues Involved:
1. Whether Section 38C of the Bombay Sales Tax Act, 1959, and Section 26B of the Kerala General Sales Tax Act, 1963, are inconsistent with the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (DRT Act), and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act)?
2. Whether the non obstante clauses in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give these Central legislations primacy over State legislations?
Detailed Analysis:
1. Inconsistency Between State and Central Legislations:
The court examined whether the provisions creating a first charge in favor of the State for sales tax dues under the Bombay and Kerala Acts are inconsistent with the DRT Act and the Securitisation Act. The court noted that both the DRT Act and the Securitisation Act were enacted to expedite the recovery of dues by banks and financial institutions. However, neither Act explicitly creates a first charge in favor of banks or financial institutions over the property of the borrower.
The court referenced the legislative history and objectives of both the DRT Act and the Securitisation Act, emphasizing that these Acts facilitate the recovery of dues through specialized tribunals and empower secured creditors to enforce their security interests without court intervention. Despite these powers, the Acts do not establish a first charge over the debtor's property, unlike the provisions in the State Acts which explicitly create a first charge in favor of the State for sales tax dues.
2. Primacy of Non Obstante Clauses:
The court analyzed the non obstante clauses in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act, which state that the provisions of these Acts shall have effect notwithstanding anything inconsistent contained in any other law. The court concluded that these clauses do not override the first charge created by State legislations, as the DRT Act and the Securitisation Act do not contain provisions creating a first charge in favor of banks and financial institutions.
The court further examined the non obstante clauses in the State Acts, which give statutory recognition to the priority of the State's charge over other debts. The court held that these clauses create a first charge on the property of the dealer or any other person liable to pay sales tax, and this charge has overriding effect over other laws, including the DRT Act and the Securitisation Act.
Individual Cases Analysis:
C.A. No. 95 of 2005 - Central Bank of India v. State of Kerala:
The Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's dues was upheld. The court found no inconsistency between the State and Central legislations.
C.A. No. 2811 of 2006 - Thane Janata Sahakari Bank Ltd. v. Commissioner of Sales Tax:
The Bombay High Court's decision that the first charge created under Section 38C of the Bombay Act prevails over the bank's claim was upheld. The court confirmed that Section 35 of the Securitisation Act does not override the State's first charge.
C.A. No. 3549 of 2006 - Indian Overseas Bank v. Kerala State:
The court upheld the Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's mortgage.
C.A. No. 3973 of 2006 - Bank of Baroda v. State of Kerala:
The Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's mortgage was upheld.
C.A. No. 4174 of 2006 - Ahmad Koya, Kollam v. District Collector, Kollam:
The court upheld the Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's mortgage and that the auction conducted by the Recovery Officer without notice to the Revenue Officer was illegal.
C.A. No. 4909 of 2006 - Central Bank of India v. Deputy Tehsildar:
The Kerala High Court's decision that the Tehsildar was entitled to enforce the State's first charge under Section 26B of the Kerala Act was upheld.
C.A. No. 1288 of 2007 - UCO Bank v. State of Kerala:
The court upheld the Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's mortgage.
C.A. No. 1318 of 2009 - South Indian Bank Ltd., Trichur-1 v. State of Kerala:
The Kerala High Court's decision that the State's first charge under Section 26B of the Kerala Act has priority over the bank's mortgage was upheld.
Conclusion:
The appeals were dismissed, affirming the priority of the State's first charge under the respective State Sales Tax Acts over the claims of banks and financial institutions. The court clarified that the DRT Act and the Securitisation Act do not create a first charge in favor of banks and financial institutions, and the non obstante clauses in these Acts do not override the first charge created by State legislations.
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2009 (2) TMI 446
Whether an eligibility certificate issued under sub-rule (5) of rule 28A could be withdrawn on a ground other than those specified in clause (a) of sub-rule (8) of rule 28A?
Whether in this case, withdrawal can be said to be on any of the grounds mentioned under clause (a) of sub-rule (8) of rule 28A?
Held that:- Appeal allowed. Once an eligibility certificate was granted, it can only be withdrawn in the circumstances mentioned in clause (a) of sub-rule (8). Therefore, "non-production of NOC/CLU certificate" by itself cannot be a ground for withdrawal as it is not one of the grounds/circumstances mentioned in clause (a) of sub-rule (8).
Where the NOC/CLU certificate was required because the unit was situated in an agricultural land, but the applicant suppressed the fact that the land where the unit was situated was an agricultural land, to avoid production of the NOC/CLU certificate, then it is concealment and mis-representation of a material fact, which squarely falls under sub-rule (8)(a)(i). When the eligibility certificate is withdrawn for non-production of NOC/CLU certificate, and the fact that land was agricultural land was not disclosed, the withdrawal can be traced to ground (i) under sub-rule 8(a)(i) of rule 28A.
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2009 (2) TMI 444
Whether the taking of the delivery of chemicals in Delhi by the purchasing dealers, in the context of they being the distributors/stockists of the assessee for the assigned territories outside Delhi would take away the transaction in question from the category of inter-State sale(s)?
Held that:- Appeal dismissed. Once it is found that the purchasing dealers were obliged under the contract(s) to take the chemicals to their respective territories outside Delhi, once it is found that the purchasing dealers were obliged to sell the chemicals in their respective assigned territories, once it is found that the said purchasing dealers were obliged to enter into separate contract(s) with the assessee, once it is found that each of the purchasing dealers were required to sell the chemicals in their assigned territories at the price fixed by the assessee and once it is found that each of the purchasing dealers was obliged to submit monthly reports to the assessee then in that event the mode in which each of the purchasing dealers could sell their goods either by way of stock transfer or inter-State sale or local sale becomes irrelevant.
The obligation of the purchasing dealer(s) under the contract indicates the control of the assessee over the movement of the goods.
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2009 (2) TMI 438
Issues involved: Remand of matter back to Original Adjudicating Authority, violation of principles of natural justice, cross-examination of witnesses, appeal against decision to remand.
The Appellate Tribunal CESTAT, AHMEDABAD, in the case, dealt with the issue of remanding the matter back to the Original Adjudicating Authority. The Commissioner (Appeals) remanded the case due to the fact that the show cause notice was an offshoot of the main notice alleging wrongful Cenvat credit availed by the appellants. The Commissioner had adjudicated the main issue previously, and the Tribunal remanded the matter back to the Commissioner for violating principles of natural justice. As the appellants sought cross-examination of the same witnesses, the Commissioner (Appeals) followed the Tribunal's order and remanded the matter. The Revenue appealed against this decision, arguing that the Commissioner should have decided the case on merits.
In the judgment, it was noted that the Commissioner had passed an order on the main issue on 14-12-07, while the show cause notice regarding seized goods was adjudicated by the Joint Commissioner. Referring to Circular No. 752/68/2003-CX, the Tribunal highlighted that all show cause notices on the same issue should be adjudicated by the authority competent to decide cases involving the highest duty amount. Since the Tribunal had already set aside the Commissioner's order and remanded it for fresh adjudication, it was deemed appropriate to set aside the impugned order and remand the matter to the Commissioner for fresh adjudication in line with the principles of natural justice as per the circular issued by the Board. Consequently, both show cause notices were to be adjudicated by the Commissioner afresh, aligning with the circular's directives. The appeal filed by the Revenue was disposed of accordingly.
*(Pronounced in Court on 4-2-2009)*
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2009 (2) TMI 437
Refund - period of limitation - Notification 32/2005 CE - refund claim was filed beyond normal period of limitation of 6 months - Held that: made within the time limit prescribed in Section 11B are to be treated to have been filed in time - time limit prescribed in the Notification for claiming refund is a procedural condition and failure to fulfill the same cannot affect the entitlement of the target community to receive the relief. We find that the apex Court had observed as under in M/s GIRDHARI LAL AND SONS Versus BALBIR NATH MATHUR AND OTHERS (1986 -TMI - 78846 - Supreme Court of India) as regards failure to satisfy procedural conditions to quality for eligibility to relief provided in an exemption notification.
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2009 (2) TMI 435
Stay - Financial Hardship - Petitioner stating that pre-deposit of Rs. 10 lakhs directed by Tribunal could not be paid due to financial hardships. Petitioner ought to have pleaded undue hardship in application seeking waiver of pre-deposit before Tribunal. Waiver application not containing such plea. Tribunal denied opportunity to consider statement of account placed before High Court. Statement that petitioner having only one bank account, mere assertion without evidence. Tribunal order containing finding that petitioner knowingly and intentionally involved in illegal diversion of duty free material and fraudulent activity. Reasoning in impugned order on service of hearing intimation sustainable. Writ petition dismissed.
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2009 (2) TMI 434
Cenvat - Fraudulent availment of credit - Tribunal order holding credit availment without receipts of goods fraudulent. Plea on limitation not acceptable. Appellant contending that proceedings against supplier dropped by Tribunal. Submission of appellant not having merit since Tribunal order containing categorical findings against appellant while no such findings recorded in case of supplier. Held that - Appeal wholly misconceived and dismissed.
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2009 (2) TMI 431
Commissioner – Revision - The main question for determination in these cases relate to the scope and ambit of the power of the Commissioner to exercise suo motu power of revision under section 263(1) of the Income-tax Act, 1961. Held that – the Assessing Officer was very much aware about the appraisal report indicating the assessee. Yet the material revealed through the appraisal report were not considered by the Assessing Officer, while finalizing the assessment, nor was the assessee confronted and given opportunity to rebut the finding of the appraisal report. The Assessing officer merely stated that some loose papers seized during the survey were not relevant for the period of assessment under consideration, without referring to the actual appraisal report or indicating any reason as to why the appraisal report was not to be considered. Under these circumstances, the Commissioner held that assessee had been finalized without reference of relevant material and therefore the assessment orders had been rightly held erroneously passed by the Commissioner and the reason indicated by the Commissioner were sufficient. The appraisal report was very much relevant for the purpose of making assessment and as such the interference by the Commissioner was justified.
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2009 (2) TMI 429
Cess- textile cess- The Appellants have filed this Appeal by challenging the Demand Notice dated 11-7-2005 for Rs. 33,48,795/- for the period 4/2003 to 3/2004 on the ground that the Demand Notice is not maintainable as the cess is already paid by the supplier and the Appellants are not required to pay. Held that- The Appellants admit the liability to pay the cess in the event the cess is not paid by the supplier. The Appellants rely heavily on the Circular and claim exemption of paying the cess by submitting the proof of payment of the cess by the supplier. Once the burden of payment is satisfactorily discharged, in our view, the Appellants can absolve itself from the liability of paying the cess. In the light of such discussion, the Appellants are not liable to pay any cess and hence, the Demand Notice issued to them is contrary to law and not sustainable. Thus, quash and set aside the Demand Notice and allow the Appeal.
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2009 (2) TMI 427
Export- Special deduction- whether on the facts and circumstances of the case and in law the hon’ble Tribunal is right in rejecting the appeal of the Revenue and holding that the receipt by way of exchange rate fluctuation is includible in the total turnover of the assessee for computing deductions under section 80HHC ? held that- the amount received by way of exchange rate fluctuation was includible in the total turnover of the assessee for computing deduction under section 80HHC of the Act.
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2009 (2) TMI 426
Exemption- Educational Institution- The Chief Commissioner held that assessee was generating huge surplus year after year and that accumulation of capital expenditure for the assets of the school out of the income was not adequate to claim exemption. Held that- the Chief Commissioner had rightly holding that the assessee was required to apply 75 percent of its income for the educational purposes of the assessee upto the assessment year 2001-02. thereafter, from the assessment year 2002-03, the application of income had to be 85 percent. The assessee could accumulated only 15 percent of the income and if there was any excess accumulation then it had to be applied for the objects of the society within a period of five years. Accordingly the exemption in respect of the assessment year 2008-09 to 2010-11 was to be refused.
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2009 (2) TMI 424
Testing- Custom coming up in revision against order of Spl. Judge directing for re-test. No bar for accused to move for re-testing but it not means that every such application be allowed. Impugned order for re-test justified as Customs stating drawal of 2gm samples but CRCL report found it to be 0.52 gm only. Recovered substance referred as light brown coloured powder whereas found to be solid black coloured substance. No infirmity in order.
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