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Showing 81 to 100 of 1280 Records
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2022 (10) TMI 1201
Income deemed to accrue or arise in India - Royalty receipt - amount received by the Appellant from Indian Customers on account of sale of software/license charges India – Israel DTAA - Distinction between royalty paid on transfer of 'copyright' and consideration for transfer of 'copyrighted article' - HELD THAT:- We find force in the contention of the ld. counsel for the assessee. The issue raised in the present appeals was also there in VERINT SYSTEM LIMITED [2023 (1) TMI 464 - ITAT DELHI] as held this issue is covered in this issue is squarely covered in favour of the assessee and against the Revenue as relying on decision of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] and also Intrasoft Ltd. [2013 (11) TMI 1382 - DELHI HIGH COURT]
Grant of tax credit without considering the provisions of section 240 - HELD THAT:- We find that while giving appeal effect, the AO should have considered the provisions of section 240 - We, therefore, direct the AO to consider the provisions of section 240 of the Act while giving appeal effect to our order.
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2022 (10) TMI 1200
Rejection of request to restore the appeal filed by the appellant - terms of the Amnesty Scheme not complied with - HELD THAT:- The Joint Commissioner (Appeals) and the learned Judge have rejected the request and upon perusing the scheme, its conditions, etc., the request of the appellant was rejected for available and correct reasons. There is no ground warranting our interference in the present intra - court appeal.
Appeal dismissed.
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2022 (10) TMI 1199
Benefit under the said SVLDR Scheme denied - petitioner-assessee had admitted and quantified the tax payable by him prior to June 30, 2019 - HELD THAT:- In the case of Bioneeds India (P) Limited v. Commissioner of Central Tax [2022 (8) TMI 1315 - KARNATAKA HIGH COURT] and Nikitha Build Tech (P) Limited v. Union of India [2022 (11) TMI 1148 - KARNATAKA HIGH COURT], this court has come to the conclusion that so long as the petitioner-assessee had admitted and quantified the tax payable by him prior to June 30, 2019, notwithstanding pendency of an enquiry or an investigation or audit on or before June 30, 2019, the petitioner-assessee would be entitled to the benefit of the SVLDR Scheme.
The material on record in the instant case discloses that on October 1, 2018, the respondent had quantified the amount payable by the petitioner as Rs. 1,81,99,659 to which the petitioner had submitted a reply on June 6, 2019 admitting, accepting, agreeing and quantifying the service tax payable by him as Rs.1,37,05,125 much prior to June 30, 2019, which was the cut- off date under the SVLDR Scheme and clarified by the circulars dated August 27, 2019 and December 12, 2019 issued by the respondent.
The respondents committed an error in not only passing the impugned order at annexure A rejecting the claim of the petitioner for benefit under the SVLDR Scheme, but also erred in passing the impugned order at annexure H dated April 26, 2021 and consequently, the impugned orders deserve to be set aside and the matter be remitted back to the respondent for reconsideration afresh in accordance with law.
Petition allowed by way of remand.
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2022 (10) TMI 1198
Dishonour of Cheque - legally enforceable debt - time limitation - rebuttal of presumption - Section 138 and 118 of the Negotiable Instruments Act, 1881 - HELD THAT:- The High Court thought fit to quash the proceedings on the premise that on the date of summoning the Accused the legally enforceable debt was time barred - High Court seems to have proceeded on the footing that there is no averment in the entire complaint as regards any kind of acknowledgment of the said debt by the Accused within the period of three years i.e. within the limitation period of recovering the debt.
Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the Accused to dislodge the legal presumption available Under Sections 118 and 139 reply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the Accused Under Section 482 of the Code of Criminal Procedure.
Appeal allowed by way of remand.
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2022 (10) TMI 1197
Recalling of the ex-parte order passed by tribunal - HELD THAT:- The contention of the assessee is that the notice of hearing was not received by the assessee. An affidavit in this regard by Shri Arvind Jain, Director of NYK Enterprises Pvt. Ltd., is also filed by the assessee. Revenue has not brought any material to controvert the contents of the affidavit. Thus, for the reasons stated in the application, there was reasonable cause of non-appearance.
As considering the material available on record and in the interest of principle of natural justice. Miscellaneous Application filed by the assessee is allowed.
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2022 (10) TMI 1196
Irregularities in the recruitment process of Assistant Primary Teachers - HELD THAT:- It would not be appropriate to straightaway direct CBI investigation in a recruitment related controversy unless, of course the allegations are so outrageous and the perpetrators of the alleged offences are so powerful that investigation by the State police would be ineffectual. The reasons given by the learned Single Judge in directing investigation by the CBI at such an early stage of the proceeding may fall short of the standards laid down in the case of Sampat Lal [1984 (12) TMI 328 - SUPREME COURT]. But considering the submission of learned Counsel for the CBI and the fact that investigation by the said agency has substantially progressed, we do not want to stall such investigation at this stage and wait to see if the State Police can carry on the same investigation impartially.
What weighed with the learned Single Judge in directing their termination in a case where they were not even the parties appears to be materials that was revealed in response to orders of the Court. Such orders reflect some kind of investigative role that was being undertaken by the Court itself in obtaining documents from the recruiting bodies. It was also not a case the respective appointments were of very recent origin.
Thus, the present incumbent to the post of President, West Bengal Board of Primary Education shall continue to remain in the said post till final outcome of the writ petition before the Single Judge in which the directions of the said Petitioner's removal was passed. Dr. Manik Bhattacharya shall be entitled to file affidavits to the writ petitions as also any additional affidavit taken out in connection with the said writ petitions which may contain allegations against him.
The CBI under the SIT shall continue their investigation as directed by the Single Judge and file a comprehensive report before this Court within a period of four weeks as regards progress of the investigation - The order passed directing cancellation of 269 candidates by the Single Judge on 13th June 2022 and the part of the order of the Division Bench confirming that order shall stand stayed and remain in abeyance.
Application disposed off.
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2022 (10) TMI 1195
Stay on recovery against outstanding demands - assessee submitted that the final assessment orders passed by AO giving rise to the present demands are invalid due to non-mentioning of Document Identification Number (DIN) - HELD THAT:- DIN has not been mentioned. Therefore, as per the extant CBDT circular, referred to elsewhere in the order, such orders are to be declared as non est and never been issued. Though, we agree with learned DR that these aspects have to be thrashed out by the parties at the time of full length hearing of the appeals, however, there is good ground for grant of absolute stay on recovery of demands as prima facie case and balance of convenience are in favour of the assessee. Accordingly, we direct the Assessing Officer to stay his hands from recovery of the outstanding demand pertaining to the impugned assessment years for a period of 180 days from the date of this order or till the disposal of the appeals, whichever is earlier.
As accepting assessee’s prayer, which was not opposed by learned Departmental Representative, we direct the Registry to fix the corresponding appeals for hearing on 07.02.2023, a date consented by both the parties.
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2022 (10) TMI 1194
Grant of bail - whether the applicant has a valid visa or passport? - HELD THAT:- The applicant has relied upon an order of Abdul Sattar v. State of NCT of Delhi passed in BAIL APPLN. 1014/2022 dated 08.07.2022 to show that bail can be granted if the accused has spent substantial period in jail. However, the said application does not deal with the rigours of Section 37 of the NDPS Act. Mr Kushwaha, learned counsel seeks and is granted four weeks to address arguments.
List on 18.11.2022.
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2022 (10) TMI 1193
Recovery of Port demurrage and detention charges dues - vessel is stuck with the cargo on board and vessel is on demurrage - HELD THAT:- Respondent Nos. 2 and 3 states the customs have permitted warehousing of Pigeon Peas and if petitioner applies customs will consider issuing provisional release order for the Pigeon Peas. As regards Soya bean customs information is that those are genetically modified and its import banned in India - petitioner states that petitioner may be permitted to atleast discharge the entire cargo on board the vessel so that the vessel is not held up and petitioner is not liable to pay further demurrage to the vessel owner.
Stand over to 21st October 2022.
Stand over to 21st October 2022.
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2022 (10) TMI 1192
Reopening of assessment - income alleged to have escaped assessment was found to be less than Rs.50 lacs - Scope of new provision section 148A - Scope of amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing new provisions i.e. sections 147 to 151 w.e.f. 1st April, 2021 - HELD THAT:- There is no quarrel with the legal position existing and in force prior to 01.04.2021 that under the unamended provisions contained in Section 149, sub-section (1)(b) of the Act, proceedings u/s 148 of the Act could be initiated by issuance of notice even if four years had elapsed but not more than six years elapsed from the end of the relevant assessment year in cases where the income chargeable to tax which has escaped assessment amounts to or is likely to amount to Rupees One lac or more for that year. However the unamended provisions allowed the authority to reopen assessment by issuing notice under Section 148 of the Act under the pre-amended scheme only.
The argument that since pre amended provision contained in Section 149 of the Act, permitted the authorities to reopen and issue notice under Section 148 of the Act, therefore, even after amendment of provisions of Section 149 of the Act, repealed provisions could be taken recourse to and in that case, provisions of Clause (a) sub-section (1) of Section 149 of the Act would not apply, prima facie appears to be against the legislative intention. In respect of income below Rs.50 lacs which is alleged to have escaped assessment, the new legislative regime is that notice under Section 149 of the Act shall not be issued if there is a bar as engrafled under Clause (a) thereof. It is only when the amount exceeds Rs.50 lacs, the provisions of Clause (b) stand attracted, subject to the limitation prescribed therein.
Reliance placed on judgments of various High Courts, at this stage, we find to be distinguishable because none of those are cases where the income alleged to have escaped assessment was found to be less than Rs.50 lacs. The final order and the interim orders in certain cases have been passed on the facts and circumstances and the applicability of the provisions of Section 148 and 149 of the Act to those peculiar facts and circumstances.
The argument that ASHISH AGARWAL [2022 (5) TMI 240 - SUPREME COURT]has allowed that the reassessment proceedings should be continued by treating notices under Section 148 of the Act as notices under Section 148(A) of the Act, does not come to the aid of the respondents because even if the period of limitation has been extended from time to time by issuance of notifications extending time line as provided under Section 149 of the Act, in any case, present is a case where notice under Section 148 of the Act has been issued only on 26.07.2022, therefore, the source of authority would be Section 148 of the Act subject to the bar under Section 149 of the Act as is existed on the day when the notice was issued. Source of authority could not be traced to pre existing provision which was no longer in force and available when notice under Section 148 of the Act was issued on 26.07.2022.
Thus we find no reason to depart from the orders which have been passed in other cases protecting assessee against the further proceedings where it pertains to relevant assessment year of 2016-2017 and the income alleged to have escaped assessment is found to be less than Rs.50 lacs. Accordingly, further proceedings pursuant to impugned notice dated 26.07.2022 u/s 148 of the Act, shall remain stayed till the final disposal of this writ petition.
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2022 (10) TMI 1191
Maintainability of appeal before ITAT against order passed u/s 119(2) - HELD THAT:- As we found the contentions of the Revenue tenable that no appeal against the order passed u/s 119(2)(b) can be heard by ITAT, if any assessee files such appeal before the ITAT against the order of Commissioner passed u/s 119(2)(b) is not admissible and even if admitted, ITAT is not empowered by virtue of section 253 to decide the matter.
We further observed against such type of orders i.e. order passed u/s 119(2)(b) can be appealed directly to the Secretary, CBDT or can be challenged through Writ before the Hon’ble Jurisdictional High Court. In view of above earlier order passed by ITAT is beyond its Jurisdiction, hence, appeal of the assessee is rejected treating the same as infructuous.
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2022 (10) TMI 1190
Seeking custody of the assets of the Corporate Debtor, seized pursuant to Inventory cum Seizure List - remission of amount to the Liquidator account within two weeks of the receipt of the order - handing over possession of the properties - overriding effect of IBC would prevail over the Customs Act - raising of fresh issue in the appeal instead of taking the side of one of the parties before the Court.
Whether the provisions of the IBC would prevail over the Customs Act? - HELD THAT:- The answer is no more res-integra in view of the decision of the Supreme Court in the case of Sundaresh Bhatt [2022 (8) TMI 1161 - SUPREME COURT] where it was held that Once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the respondent authority only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies. The respondent authority does not have been the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.
Whether the Intervenor can raise a fresh issue in the appeal instead of taking the side of one of the parties before the Court? - HELD THAT:- Admittedly the Intervenor had filed its own appeal in order to challenge the findings recorded in its I.A. No. 22 of 2019 but their Appeal No. 94 of 2020 was dismissed on 20.01.2020. The Hon’ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. [1999 (3) TMI 3 - SUPREME COURT] has observed that We cannot pass such an order in an intervention application. The only purpose of granting an intervention application is to entitle the intervener to address arguments in support of one or the other side. Having heard the arguments, we have decided in the assessee’s favour. The interveners may take advantage of that order.
No other point has been raised - there are no merit in the present appeal and the same is hereby dismissed.
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2022 (10) TMI 1189
Recall of order wherein matter was dismissed due to low tax effect - revenue appeal dismissed on low tax effect - HELD THAT:- As brought to our notice by the Department that the prosecution under Section 276C(2) of IT Act has been launched vide registration No. 389/2019 before the Hon’ble Civil Court of Patan and hence, the matter falls under the Exception 10(f) as mentioned in the Circular being No. 3/2018 dated 11.07.2018 and 20.08.2018 and also Circular No. 19/2019 dated 08.08.2019. None appeared on behalf of the assessee.
Having regard to the facts and circumstances of the matter, we recall the order. The Registry is directed to put the matter on Board upon giving notice to the respective parties. Miscellaneous Application filed by the Revenue is allowed.
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2022 (10) TMI 1188
Addition u/s 56 (2)(viii) - interest on enhanced compensation for acquisition of agricultural land by Government under Land Acquisition Act - denial of exemption from tax under section 10(37) - HELD THAT:- As the land of the assessee was acquired under the old Land Acquisition Act, but, the intention of the legislature is also clear as per the said Circular wherein the compensation received by the assessee u/s 96 of the RFCTLAAR Act has to be held as exempt from levy of income-tax. Therefore, the grievance of the assessee may kindly be allowed.
CIT(A) was not correct in upholding the assessment order wherein the AO has granted part relief to the assessee u/s 57(iv) of the Act and not applying the provisions of section 10(37) of the Act on the interest received by the assessee on enhanced compensation.
Therefore, the orders of the authorities below are set aside being not sustainable and not in accordance with the provisions of the Act. AO is directed to allow deduction u/s 10(37) of the Act to the assessee on the entire amount of interest received on enhanced compensation u/s 28 of the Act. Decided in favour of assessee.
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2022 (10) TMI 1187
Unexplained cash credit - unexplained sources of cash deposit made during demonetisation period - failure of the assessee to satisfactorily explain cash sales - assessee is engaged in the business of wholesale and retail trading of gold bar, gold ornaments, diamond ornaments and other precious articles - HELD THAT:- There is merit in the contentions of A.R that the provisions of sec.68 can be invoked only in cases of cash credits, which were not offered as income, i.e., a legal fiction has been created in sec.68 to assess certain cash credits, which were not otherwise shown as income.
In the instant case, the assessee has declared the cash sales as its income in the profit and loss account. Hence it is not a case of cash credits, which were not shown as income, in order to attract the provisions of sec.68.
We notice that an identical issue has been considered in the case of Hirapanna Jewellers [2021 (5) TMI 447 - ITAT VISAKHAPATNAM] and it was decided in favour of the assessee.
The books of accounts and stock register have been found to be correct by the auditors and survey officials. During the course of assessment proceedings, the AO also did not find any fault or defect in the books of accounts or stock register maintained by the assessee. The impugned deposits have been made by the assessee from the cash balance available in the books of accounts, which were duly generated on sale of goods out of stock available with the assessee. It is not the case of the AO that the purchases of stock made by the assessee and entered in the stock register were not genuine. As observed by the Visakhapatnam bench of ITAT, there is no case of making abnormal profits from the cash sales recorded by the assessee. The observations of the AO with regard to non-response by the customers to the notices issued by him and non-filing of returns by the customers are not relevant to the facts of the present case.
Thus we hold that the assessee has duly explained the sources for making cash deposits into its bank account. Since the sources of cash have been generated out of business activities of the assessee, the same cannot also be assessed u/s 69A of the Act as unexplained asset - Decided against revenue.
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2022 (10) TMI 1186
Deduction u/s 10A - benefit denied for subsequent years - ITAT's finding that condition stipulated in Section 10A(2)(iii) had not been satisfied in the first year of commencement of manufacture - HELD THAT:- As combined reading of these two authorities in Sourashtra Cement [1979 (1) TMI 249 - GUJARAT HIGH COURT] and Direct Information Pvt. Ltd. [2011 (9) TMI 137 - BOMBAY HIGH COURT] make it clear that there cannot be uncertainty in the assessments for different years. Assessee sought deduction u/s 10A for the first time in A.Y. 1997-98 and the same has been allowed. Therefore, without disturbing the relief granted in that year, the AO could not have denied the benefit for subsequent years.
For 1998-99, the learned Senior Advocate has explained that assessee did not challenge the said order because assessee had got relief under Section 80HHE. For the subsequent two years, assessee has been given the relief. Therefore, we are of the considered view that the AO's view is perverse and not sustainable. Resultantly, this appeal merits consideration.
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2022 (10) TMI 1185
Addition u/s 68 - bogus/ ungenuine loans received - CIT(A) held that the bank statements of the loan parties were not furnished by the appellant and at the same time held that, on analysis of the bank accounts credit in the lenders account for more than the amount received by the Assessee - HELD THAT:- The total credit in the lenders account for more than the amount received by the Assessee cannot be a reason to construe the loan as bogus/ ungenuine.
Having gone through the entire evidences submitted by the Assessee as mentioned above at the beginning of this para, in the absence of any contra findings brought by the Revenue, we hold that no addition on account of the loans received by the Assessee is called for. Decided in favour of assessee.
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2022 (10) TMI 1184
Unexplained investment in purchase of properties u/s 69 - CIT-A allowed part relief - main contention of the assessee is that the opening cash balance was duly supported by two cash withdrawals made by the assessee from his bank account with Kotak Mahindra Bank Ltd and Bank of Baroda but CIT(A) accepted only the cash withdrawal from Bank of Baroda - HELD THAT:- A sum was deposited by the assessee in cash in Kotak Mahindra Bank immediately on 24.03.2012 and the assessee has not been able to explain either before the authorities below or even before the Tribunal the purpose of maintaining substantial cash balance of more than Rs. 8,00,000/- throughout the FY 2012-13 when the income declared by the assessee in his return of income for AY 2013-14 was only Rs. 3,53,910/-.
Moreover, there is hardly any withdrawal shown by the assessee for personal and household expenses in cash book prepared for three financial years i.e. FYs 2011-12, 2012-13 and 2013-14.
Keeping in view all these facts of the case, we find in agreement with learned CIT(A) that the cash of Rs. 9,00,000/- withdrawn by the assessee from his bank account with Kotak Mahindra Bank Ltd on 01.02.2012 cannot be said to be available for making investment in purchase of properties in FY 2013-14.
We uphold the impugned order of the learned CIT(A) sustaining the addition made by the Assessing Officer on account of unexplained investment made by the assessee in properties under Section 69 - Decided against assessee.
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2022 (10) TMI 1183
Whether the Respondents who turned out to be the writ Petitioners before the High Court are Public Trusts or they are in essence or in substance, Wakfs under the Mohammedan Law? - HELD THAT:- Facts which have occurred subsequent to the issuance of the list on 13.11.2003 and 31.12.2004, take it out of the ordinary run of cases. It is noticed that the fact for reasons which will remain a mystery to us, Government took it upon itself to convene meetings; a Committee was constituted described as a Bifurcation Committee. The Committee saw merit in the contention of the writ Petitioners. The Charity Commissioner was roped in as a member. It is thereafter that strangely after the publication of the lists which are claimed to be final lists Under Section 5(2) on 13.11.2003 and 30.12.2004 that the list dated 05.05.2005 is published and it is also described as another final list. All these lists have finally been sought to be extinguished by virtue of the notifications dated 25.04.2007 and 23.10.2008.
This means that the writ Petitioners' case is based on to a great extent the mechanical manner in which upon receipt of the list of public Trusts from the Charity Commissioner, the Wakf Board has notified them as Wakfs. Section 5(2) speaks about Wakf Board conducting an inquiry, or examining the manner. This certainly is not to be brushed aside as a matter of no moment. In fact, the whole idea of the Government placing the report before the Wakf Board as has been canvassed by the Appellants themselves to contend that a Wakf Board is very much contemplated even prior to the Survey being held is that it must discharge its functions of examining the report Under Section 5, before it is finally published.
It would appear to be a case where proceeding on the basis that all the Muslim public Trusts registered under the 1950 Act must be treated as Wakfs, the Wakf Board has proceeded to notify all of them as Wakfs. It is this which formed the subject matter of deliberations which involved the Government, Wakf Board and Charity Commissioner. It is, accordingly, under the auspices of the Committee described as Bifurcation Committee that efforts were made to weed out those public Trusts which fell not within the four walls of a Wakf and considering them as secular trusts. To a great extent, their claims being genuine is borne out by a bare passing of Resolution on 09.03.2005. A fresh list was published on 05.05.2005.
It is not in dispute that when the Board was constituted on 04.01.2002, there were only four members. All the four members were nominated. Two out of the four members were apparently appointed in the category of Member of Parliament as, both belonged to the Rajya Sabha. No doubt, there is a case that out of them viz., Shabana Azmi, the theatre person also fitted the bill of a Shia member. We must not be oblivious to the fact that Section 14(5) contemplated (the provision stands deleted by Act 27 of 2013) that there must be one Shia member in a composite board. After 04.01.2002 and before 13.11.2002, there were in all seven members in the Board, including the four notified in first notification, as three more were appointed prior to 13.11.2003. One more person was appointed on 13.11.2003 which according to the Respondents was an attempt at complying with Section 14(5) of the Act viz., for the first time, a Shia member made his appearance in the Board. This is an aspect which was canvassed as one of the grounds for not only challenging the constitution but to attack the publication of the list of 13.11.2003. The contention taken was and still persevered in before us is that the Board had decided to notify the list even prior to 13.11.2003 viz., on 27.09.2003. The Board itself therefore had become functus officio after 27.09.2003 as far as the list is concerned, prior to 13.11.2003 when the eighth member was appointed.
When the Board has, in law, any reason therefore to believe that any property of any Trust registered under the Indian Trusts Act, 1882 or any society registered under the Societies Registration Act 1860 or the property of any Trust registered under any other law, is wakf property, the Board is given certain powers and responsibility. The Board is clothed with the power notwithstanding anything contained in any of those laws, to hold an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law - It means that the Wakf Board must give notice of the proposed action to the Charity Commissioner as it is the authority under the 1950 Act, who registered or registers a public Trust Under Section 18 of that Act.
When parliament made the Act in 1995, it was aware that it would repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provision which corresponds to Section 27 of the earlier Act. Parliament must be presumed to know the laws which are on the statute book. In fact, Parliament must be presumed to be aware of all necessary facts which would give life to a law and make it workable, fair and reasonable. Parliament must, therefore, be assumed to know that laws like the Bombay Public Trust Act were on the statute book. It must be aware that the definition of public Trust such as is contemplated under the Bombay Public Trust Act took within its sweep Wakfs - As far as other public Trusts which are registered under the 1950 Act, no doubt, in keeping with what we have already observed and bearing in mind the fact that there is a distinction between a Trust and a Wakf, it is a matter to be decided on the facts of each case as to whether what is ostensibly a Trust within the meaning of 1950 Act is in substance a Wakf.
Registration is intended to bring Wakfs under the close scrutiny of the competent authority, be it the Board or the executive officers. The whole history of the legislation of Wakfs reflects the perception of the legislature that property which is dedicated to the Almighty for charitable, religious and pious purposes should be protected. The protection must be extended against the Mutawallis and others who may deal with the property and thereby, completely destroy the very original purpose of the founder. What would be used for public welfare, be it even of Sections of a community for certain cases, would all be covered thereunder as provided in the Act.
It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not. No doubt, all public Trusts which have been registered by way of a deeming provision Under Section 28 of the 1950 Act will necessarily have to be treated as Wakfs. This is on the principle that once a Wakf is created unless it be a case where the title is extinguished by way of exercise of power of eminent domain by the State, the title of the Almighty though by implication cannot cease.
Thus, what was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. It is pointed out by Shri Anil Anturkar, learned Senior Counsel, that such Wakfs would come within Section 43 and be deemed to be registered. We, however, make it clear that the passing of the Act will not affect the powers of the authorities in respect of public Trusts registered under it which are not Wakfs.
It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion - Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction Under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter.
The constitution of the Bifurcation Committee and various proceedings thereafter, would appear to be not proceedings which are strictly within the ambit of the Act as such. There cannot also be plea of estoppel or equity against Statute - Appeal allowed in part.
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2022 (10) TMI 1182
Auction proceedings - Rejection of application seeking direction to Respondent-Resolution Professional to convene the meeting of the Committee of Creditors to place the Resolution Plan for consideration - case of appellant is that the Appellant ought to have been given opportunity to submit a scheme of compromise/arrangement but the Liquidator proceeded for auction without giving any opportunity - HELD THAT:- In the facts of the present case, the ends of justice will be served in giving liberty to the Appellant to submit a scheme of compromise/arrangement as contemplated under Section 230 of the Companies Act to the Liquidator within one month from today as well as to the Financial Creditors for their approval as contemplated under Section 230 of the Companies Act. Let entire process be completed within three months’ period as has been allowed under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 from today.
The Liquidator who has already issued notice fixing Auction on 10th November, 2022, shall differ the proposed auction. It will be open for the Liquidator to proceed with the Auction further, if any, only after completion of the process under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 after period of 3 months.
Appeal disposed off.
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9911796707
