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Showing 61 to 80 of 1320 Records
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2021 (1) TMI 1262 - MADRAS HIGH COURT
Misbehaviour with the victim - framing of charges for offence under section 354 IPC and Section 7 of the POSCO Act - accused has denied the charges and claimed to be tried - HELD THAT:- Admittedly on the side of the prosecution, totally 10 witnesses were examined out of which, P.W.1 is the victim. She has clearly deposed that she is working in the private textile mill; on 26.10.2014 since it was Sunday she did not go to the mill, she went along with her father for grazing cattles. At about 4 p.m., father told the victim to go to the house with the cow. While going to home along with the cow, the appellant intercepted and misbehaved with her. Immediately she raised her voice. After hearing the voice of his daughter, P.W.2 father rushed there. Subsequently, the appellant left from the scene of occurrence. The same was immediately informed to the father and father also informed to his wife i.e., mother of P.W.1. It is the usual practice in the villages, if anything happened to a girl child, parents may not immediately go to the police station for their grievances because they would think about the future of the child.
It is settled proposition of law that lapse on the part of the prosecution should not lead unmerited acquittal, subjected to rider that in such a situation, evidence on record should be clinching so that lapses of prosecution can be condoned. In a case like this, the Court has to consider the suffering of the victim and testify the veracity of evidence of the prosecution witnesses. The aspect regarding whether the complainant has given the complaint immediately, registered the FIR immediately, and whether the Police sent the FIR to the Court immediately or not are all beyond the control of the victim, for which defects on the part of the investigating officer, which purely arose due to the lethargic attitude of the investigating officer, for which, the victim would not be made to suffer. This Court cannot take any hypothetical view in this case since there is no serious infirmity in the prosecution case. Mere technicalities should not be allowed to stand in way of administration of Justice.
A reading of the evidence of victim clearly shows that the offence under section 7 of POCSO Act is committed by the appellant. This Court carefully seeing the evidence of the victim girl, which is cogent and trustworthy. Her evidence was corroborated by her father who was examined as P.W.2. If the evidence of sole witness is cogent, incredible and trustworthy conviction is permissible. The evidence of interested witnesses, if found to have creditworthiness, conviction could be based on uncorroborated testimony.
A careful reading of the evidence of the victim girl and her father P.W.2, this Court does not find any reason to discard the same. The prosecution has established its case beyond all reasonable doubt. The trial Court has given the reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is concerned, those documents were very much available even at the time of trial and examination of the witnesses - As far as the case on hand is concerned, it comes under POSCO Act and the minor girl clearly had stated that she undergone sexual harassment and in such situation, the parents of the minor girl will not boldly come out immediately and lodge complaint but used to think about the future of the girl and also approach the village elders; if they are not able to get any solution, then they will approach the police station. In this case also, they have done the same.
The appellate Court is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give independent finding. Accordingly, this Court also finds that the appellant has committed offence under section 7 which is punishable under Section 8 of POCSO Act 2012 and the trial Court rightly appreciated the evidence and convicted the appellant and sentenced him to undergo three years rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo six months simple imprisonment. Therefore this Court does not find any merit in the appeal and the Criminal Appeal is dismissed.
Appeal dismissed.
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2021 (1) TMI 1261 - GUJARAT HIGH COURT
Dismissal of appeal on non prosecution - Tribunal dismissed the appeal on the ground of the nonappearance of the writ applicant - HELD THAT:- As learned council seeks to rely on Rule 24 of the Income Tax Rules, 1963 which makes it abundantly clear that the tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in present or through an authorized representative. It would incumbent upon the tribunal to dispose of the appeal on merits. Mr. Dave, the learned counsel seeks to rely on the decision of this High Court in the case of Sanket Estate & Finance (P.) Ltd. [2012 (12) TMI 991 - GUJARAT HIGH COURT].
Let Notice be issued to the respondents for final disposal, returnable on 10/02/2021. On the returnable date, notify the matter on top of the board.
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2021 (1) TMI 1260 - GUJARAT HIGH COURT
Disallowance u/s. 14A of the Act r.w. Rule 8D - HELD THAT:- The first question is covered by a decision of this Court in the case of CIT Vs. Corrtech Energy Pvt. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT] The view taken therein is that, when the assessee has not made claim for exemption in the income from payment of tax in disallowance could be made under Section 14A of the Act.
Addition on account of disallowance u/s. 14A r.w Rule 8D while computing Book Profit u/s. 115JB - HELD THAT:- The second question would also not survive once the view is taken that there could not have been any disallowance under Section 14A read with Rule 8D of the Act. In such circumstances, there is no question of computing the Book Profit under Section 115JB of the Act. In other words, the expenses incurred to exempt the income cannot be added for computing the Book Profit under Section 115JB of the Act.
We may clarify that since the disallowance under Section 14A itself has been deleted, therefore, there is no question of adding back under Section 115JB
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2021 (1) TMI 1259 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU
Maintainability of appeal - HELD THAT:- When the issue in question is sub-judice before this Tribunal as well as Appellate Tribunal, IA No. 445 of 2020 cannot be decided in isolation and thus we are inclined to take up this IA along with main CP, when the Appeals are decided.
The Interim orders passed on 22.12.2020 in IA No 445 of 20 are hereby extended until further orders. Post CP and IA on 05.02.2021 for final hearing.
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2021 (1) TMI 1258 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Rejection of claim of the Appellant relating to provident fund dues - rejected partially ignoring the mandate of Section 36 of the Insolvency & Bankruptcy Code, 2016 as also order of Division Bench of NCLT, Mumbai Bench in case of Precision Fasteners Ltd. v. Employees’ Provident Fund Organization [2018 (9) TMI 1532 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI].
HELD THAT:- Issue notice upon Respondents. Appellant to provide mobile Nos./ e-mail address of the Respondents. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within two days.
List the appeal ‘for admission (after notice)’ on 5th February, 2021
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2021 (1) TMI 1257 - SC ORDER
Grant of anticipatory bail - petitioner acted as a guarantor to a loan facility obtained by one of the sister concern Society of the Company - Default in repayment of loan - It was held by Delhi High Court that Keeping in view the serious allegations mentioned above against the petitioner, who has played key role in the present case and due to the material documents which are required to be seized from the petitioner, for which custodial interrogation is required, therefore, I am not inclined to grant anticipatory bail to the petitioner.
HELD THAT:- There are no reason to interfere in the matter. The Special Leave Petition is, accordingly, dismissed.
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2021 (1) TMI 1256 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Operational Creditor filed this application under assumption that it will get the benefit of Section 18 of Law of Limitation to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor - Bare reading of provisions of Section 18, Law of Limitation shows that such acknowledgement of debt must be within three (03) years from the date, on which, such debt became due and payable. 5. In this case, the debt was due and payable in the year 2006, whereas, so called acknowledgement of the debt by the Corporate Debtor was made in 2015, i.e. beyond the period of three years.
Considering the provisions of Law of Limitation, in Section 18 read with Article 137, it is held that this proceeding is not maintainable as it is filed beyond the period of limitation - application dismissed.
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2021 (1) TMI 1255 - APPELLATE AUTHORITY FOR ADVANCE, RAJASTHAN
Valuation of supply of services - act of recovering electricity expenses by the appellant - Pure Agent Services or not - Whether reimbursement of electricity expenses, by the lessee to lesser (appellant) would form part of taxable value? - HELD THAT:- In the instant case, reimbursement of electricity expenses had not been made on actual basis, by the lessee to lesser as it had been collected in advance with rent and further adjusted by raising the invoice/bill/memo/document by the lessor. Further, the appellant has failed to establish themselves as a pure agent. Therefore, in the instant case, the so called reimbursement of electricity expenses would form part of taxable value in term of clause (c) subsection (2) of section 15 of the CGST Act, 2017 - appellant is not working as pure agent.
The appellant has stressed upon Ruling given by the Authority for Advance Ruling Gujarat in the case of IN RE: M/S. GUJARAT NARMADA VALLEY FERTILIZERS & CHEMICALS LTD., [2021 (1) TMI 596 - AUTHORITY FOR ADVANCE RULING, GUJARAT] - In this regard, it is opined that these orders have not been passed by the higher forum than the present one; therefore, the same are not being considered.
Appeal disposed off.
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2021 (1) TMI 1254 - APPELLATE AUTHORITY FOR ADVANCE RULING, RAJASTHAN
Credit of GST paid - credit of the GST charged by vendor at the time of supply of goods and services to it, which are used for carrying out the following activities for setting up of MRO facility which will be rented out - non-speaking order - violation of principles of natural justice - HELD THAT:- The appellant, nowhere in their appeal memo, could bring forth any evidence of availability of any such contingencies as enumerated above for producing substantial additional documents at the appellate stage. Given the fact that the appellate authority, neither has been empowered to entertain these additional facts nor, in absence of an specific provision, have the right to remand the case back to the original authority, we find ourselves not able to take up these additional evidences despite of several case laws having been cited by the appellant in their favour which pertains to the earlier period. The appellant has placed reliance upon several case laws in support of his claim that additional substantial evidences can be produced at the appellate stage.
The case law relied upon by the appellant in the case of NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR VERSUS BHAGWAN DAS [2008 (4) TMI 544 - SUPREME COURT] wherein it has been held by the apex court that though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general Rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and imitations as may be prescribed. From the facts of the case and the relevant provisions as contained in the rule 112 as referred to above, the additional substantial evidences cannot be allowed to be relied upon at the appellate stage.
Section 16 (1) of the CGST Act specifically provides that every registered person shall be entitled to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business. Such entitlement is subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under section 16(2) of the GST Act, 2017. However, the availability of credit is subject to the restrictions as stipulated under Section 17(5)(d) of the GST Act - it is clear that the restriction imposed herein is absolute in nature as it seeks to override Section 16(1) which entitles a registered taxpayer to avail credit on goods or services used or intended to be used in the course or furtherance of business. Irrespective of the fact that the goods or services are used for construction of immovable property which in turn will be used for conducting business, credit is not available; if the ownership of the property remains with the said person. The legislature, in his wisdom, think it proper to stop the flow of seamless credit once immovable property comes into existence and the ownership is fixed.
After having been established the fact that the civil construction undertaken by the appellant is not a plant but an immovable property, we came to the another argument of the appellant where they claim that construction was under taken on account of Elcom and not on their own account and therefore the bar in section 17(5)(d) does not apply to such immovable property, it is observed that at the time of construction, every structure is constructed with a special purpose in the supervision of his own or other. The fact remained that appellant is the owner of the said immovable property -and it has not been sold to any other person. In future, it may be used for other than specific purpose related to his own and/or other without change of a brick. In future, the appellant's construction may also be used many other but quite different purposes by the appellant himself or by other with agreement of appellant - Against the material receipts, the Appellant has paid the bill amount in advance for procuring of goods and services. Further, it has been agreed that M/s Akanksha Contracts Pvt. Ltd. will raise a consolidate invoice for each month, which will include value of both goods and services so supplied along with adjustments regarding the advance so received.
In view of specific exclusion mentioned under Section 17(5) (c) & (d) of CGST Act, it is concluded that ITC is not available for construction of an immovable property even when such goods or services or both are used in course or furtherance of business.
The appeal filed by the appellant has no merit and rejected accordingly.
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2021 (1) TMI 1253 - ITAT MUMBAI
Rectification u/s.254(2) - additional ground raised in respect of deduction claimed on account of education cess which was dismissed by the Tribunal while passing its order as not an allowable expenditure - HELD THAT:- We find that this Tribunal admittedly while disposing off its appeal and more particularly in the additional ground raised in respect of deduction claimed on account of education cess, had inadvertantly lost sight of the decision of the Hon’ble Rajasthan High Court [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] and other Tribunal decisions quoted by the assessee on the impugned issue and had rendered its decision.
We are also inclined to accept to the proposition of the ld. Counsel for the assessee that when there is a particular decision of the Hon’ble Jurisdictional High Court which was rendered subsequent to the order passed by the Tribunal, the same would constitute mistake apparent from record within the meaning of Section 254(2) of the Act which is amenable to rectification thereon. It is also a fact that the Hon’ble Jurisdictional High Court in the case of Sesa Goa Ltd.[2020 (3) TMI 347 - BOMBAY HIGH COURT] decided the issue raised in the additional ground in favour of the assessee by holding that the education cess would be entitled for deduction as expenditure. Hence, respectfully following the said decision and in view of various other decisions relied upon by the ld. Counsel for the assessee referred to supra, we direct the ld. AO to grant deduction on account of education cess and allow the additional ground raised by the assessee for the A.Y.2007-08 in its entirety. Accordingly, the order passed by this Tribunal in this regard disposing off the additional ground stands modified. Miiscellaneous Application of the assessee for A.Y.2007-08 is allowed.
Non-adjudication of additional grounds as constitute mistake apparent on record warranting rectification u/s.254(2) - additional grounds raised by the assessee on account of claiming deduction of expenditure in respect of Employee Stock Option Plan (ESOP) and deduction in respect of education cess were not at all adjudicated by this Tribunal while disposing off its appeal - HELD THAT:- We find that the additional grounds raised on the aforesaid two issues for A.Y.2008-09 have not been adjudicated by this Tribunal while disposing off the original appeal which is amenable to rectification u/s.254(2) of the Act.
With regard to deduction claimed in respect of education cess, we have already held for the A.Y.2007-08 in this order supra that the assessee would be entitled for deduction in respect of education cess. We direct the ld. AO accordingly to grant deduction for the same for A.Y.2008-09 also.
With regard to deduction claimed in respect of Employee Stock Option Expenditure, since the said issue was not at all adjudicated by the Tribunal, we hereby recall the order passed by this Tribunal for A.Y.2008-09 only for the limited extent of adjudication of this additional ground alone. Miscellaneous Application of the assessee for A.Y.2008-09 is allowed.
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2021 (1) TMI 1252 - KARNATAKA HIGH COURT
Constitutional validity of Section 174 Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner has been made out ground for granting of interim order. It is ordered that until further orders, payment of service tax for grant of Mining Lease/Royalty shall remain stayed subject to petitioner filing of the undertaking before this Court that in case, if the petitioner did not succeed in the petition, the petitioner would discharge the obligation for payment of service tax on the royalty.
The petitioner has filed seeking dispensation of production of certified copy of Annexure-A, C, D and E - Application disposed off.
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2021 (1) TMI 1251 - MADRAS HIGH COURT
Benefit of Vivad Se Vishwas Scheme - assessee submit that the assessees have already filed the declaration/undertaking under the Vivad Se Vishwas Scheme on 01.12.2020 and is awaiting orders to be passed in Form No.3. - HELD THAT:- In the light of the subsequent event, the Competent Authority shall process the applications/declaration in accordance with the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) and pass appropriate orders as expeditiously as possible. The assessees are given liberty to restore these appeals in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessees. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeals and on such request made by the assessees by filing a miscellaneous petition for restoration, the Registry shall place such petition before the appropriate Division Bench for orders.
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2021 (1) TMI 1250 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Joint request has been made for adjournment of the appeal to 1st April, 2021 - Recovery of balance dues - HELD THAT:- Since IRP is not in attendance, let a notice be served upon him through electronic mode to appear and file status report in regard to CIRP.
Let the matter be fixed on 6th April, 2021.
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2021 (1) TMI 1249 - JHARKHAND HIGH COURT
Seeking amendment in dates - Change in date of adjudication order - HELD THAT:- Prayer being formal is allowed. Let the prayer indicated in paragraph 7 of the instant I.A. be incorporated in paragraph 1 of the writ petition. I.A. Nos.423 of 2021 and 425 of 2021 stand disposed of.
Matter be listed in the 1st week of March 2021. Petitioner, in the meantime, may file rejoinder thereto, if so advised.
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2021 (1) TMI 1248 - JHARKHAND HIGH COURT
Impleadment of Central Goods and Services Tax through Principal Commissioner - HELD THAT:- Considering the nature of challenge and the inter play of certain provisions of the JGST Act, which are pari materia with the CGST Act, it is deemed proper to implead the Central Goods and Services Tax through Principal Commissioner as respondent no. 5 in the instant writ petition. Let such addition be carried out by learned counsel for the petitioner within 10 days. Office to place the file for inspection and addition on requisition being made within the same time.
Learned counsel for the CGST is allowed 4 weeks’ time to file counter affidavit. One week time thereafter is allowed to learned counsel for the petitioner to file rejoinder, if necessary.
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2021 (1) TMI 1247 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking direction to Corporate to provide information about the required number of Allottees - directing maintenance of status quo with respect to pending applications - HELD THAT:- The impugned order does not adjudicate upon any right in regard to triggering of Corporate Insolvency Resolution Process. By merely directing the Corporate Debtor to provide information to the Respondent – Allottee to meet the threshold criteria to initiate the class action in the face of the ordinance laying such threshold limit, no legal right vested in the Appellant /Corporate Debtor can be said to have been infringed. In this age of transparency, knowledge and information revolution coupled with the fact that adequate information as required by the Respondent – Allottee is not displayed on the website of the Corporate Debtor, as emanating from the impugned order, the impugned order cannot be termed to be erroneous or unsustainable.
In so far as the direction given by the Hon’ble Apex Court is concerned, it is in regard to initiation or continuance of Corporate Insolvency Resolution Process in the pending cases wherein status quo is directed to be observed. The order of Hon’ble Apex Court cannot be interpreted to hold that the requisite information for initiating class action by an allottee under Section 7 of the I&B Code to meet the threshold criteria laid down under the ordinance cannot be provided, more so when the Corporate Debtor and the Regulator are under legal obligation to display the particulars in regard to allottees on their websites. No prejudice can be claimed by the Appellant on account of the direction in so far as the same relates to providing information in regard to allottee for limited purpose of enabling it to garner necessary support for initiating class action.
The appeal is disposed off with the direction that the Corporate Debtor will display the information in regard to the allottees with full particulars on its website within two weeks from today and that in the event Respondent – Allottee approaches the Appellant for providing necessary information, same shall be provided to the Allottee by the Appellant.
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2021 (1) TMI 1246 - SC ORDER
Reopening of assessment u/s 147 - notice in the company name being amalgamated - As per HC if the company has ceased to exist as a result of the approved scheme of amalgamation then in that case, the jurisdictional notice issued in its name would be fundamentally illegal and without jurisdiction. It is also held that upon the amalgamating entity ceasing to exist, it cannot be regarded as a person under subsection (31) of section 2 of the Act; against whom assessment proceedings can be initiated - HELD THAT:- Tax effect is below the threshold of ₹ 25 lakhs contained in the relevant circular of the Central Board of Direct Taxes.
The Special Leave Petition is, therefore, not entertained and it is dismissed accordingly.
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2021 (1) TMI 1245 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU
Seeking approval of the Resolution plan - revival of the Corporate Debtor - HELD THAT:- The facts and circumstances, clearly established that the revised Resolution Plan dated 03.08.2020 submitted by Koncept Shelters, Resolution Applicant, was approved by the Committee of Creditors for Fortuna Buildcon (India) Pvt Ltd. It also provides for the appointment of a Monitoring committee consisting of the Applicant, two representatives from the secured Financial Creditors and one representative of the Resolution Applicant to effectively supervise the implementation of the plan from the date of approval date. The Applicant has filed Form H and also an affidavit by confirming all the requisite procedure under the extant provisions of law have been followed. It is settled position of law that Tribunal cannot interfere the commercial wisdom of COC in taking decision to approve the Resolution plan, unless arbitrary exercise of power is alleged to have been resorted to. The Promoter of Corporate Debtor has also participated in the Resolution process and its Resolution plan has been rejected by COC.
The Resolution Plan in question is in compliance with the object and extant provisions of Code and the rules made there under, and thus it is fit to be approved under Section 31(1) of the IBC, 2016.
Petition disposed off.
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2021 (1) TMI 1244 - ITAT AHMEDABAD
Disallowance u/s 14A r.w.r. 8D - expenditure incurred on exempt income - HELD THAT:- CIT(A) has mentioned in his order that issue is covered by the decision given by his office in appellant own case for A.Y. 2012-13 [2019 (10) TMI 1504 - ITAT AHMEDABAD]wherein he has restricted the confirmed exempt income of the assessee.
In our considered opinion, we do not find any infirmity in the order passed by the Ld. CIT(A). Hence, we confirm the order of the ld. CIT(A) and same does not require any kind of interference at our end.
Late delivery charges disallowance - allowable business expenditure - HELD THAT:- As decided in own case [2018 (12) TMI 182 - ITAT AHMEDABAD] there is no dispute that apportion of the sale consideration was retained by the payees on account of /ate delivery of the machineries and as per the terms of contract, the assessee had to compensate the customers if it fails to deliver the goods on time. There is no dispute that such expenditures were incurred during the ordinary course of the business of the assessee and therefore are directly related to the business activity of the assessee. It is also true that these expenditures are not penalty levied for any infraction of any legislated law of the land but has been incurred out of a contractual obligation. In our considered opinion, such expenditures are definitely of revenue in nature and are allowable u/s. 37 of the Act. Appeal of assessee allowed.
Disallowance of foreign commission u/s 40(a)(ia) - Commission paid to non-resident whose income is not taxable in India and all services rendered outside India and it has not permanent establishment or office of agent in India - HELD THAT:- As decided in own case [2018 (12) TMI 182 - ITAT AHMEDABAD] Section 9 of the act provides for the income deemed to accrue or arise in India. It is noticed that no income is deemed to accrue or arise in India by applying the provisions of section 9 (l)(i) as the assessing officer has failed to establish accruing or arising of any income from business connection in India or through or from any property or through the transfer of a capital asset situated in India. We observe that there was no material which can demonstrate that any of the agents had any Permanent Establishment in India as all the agents had their establishments situated in the overseas places. In the lights of the above facts and detailed findings of the Ld.CIT(A) it is clear that the Provisions of section 9 (1)(i) cannot be applied, therefore we consider that the CIT(A) has rightly deleted the impugned disallowance of commission payment made to the foreign agents. In the result the appeal of the revenue is dismissed.
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2021 (1) TMI 1243 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Application for early hearing of the case - matter stood adjourned and on the adjourned date too, the matter was not heard, and was again adjourned - the Appellant who being a Financial Creditor, is concerned about further depletion in the value of the assets affecting its claim - HELD THAT:- This appeal is disposed off by requesting the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh to expedite the process and dispose off the same within three months.
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