Continuity of recovery proceedings which are pending before the Recovery Officer pursuant to the Recovery Certificate granted by the learned DRT in favour of respondent No.1 - whether the DRT committed any error in passing the impugned order?
HELD THAT:- As a neat question of law has been raised before us, we straightway go to the decision of the Supreme Court in the case of KSL & Industries Limited [2014 (12) TMI 1023 - SUPREME COURT]. KSL was in appeal before the Supreme Court by way of a reference made by a two Judge Bench, which heard the matter and held that the appeal deserved to be allowed and that the judgment and order passed by the High Court, which was impugned, was liable to be set aside. However, in view of a difference of opinion having arose on the interpretation of Section 34 of the Act, 1993, the matter came to be referred for decision to a larger Bench.
The dictum of law as laid in KSL & Industries Ltd. is very clear. The provisions of SICA, in particular, Section 22 shall prevail over the provision for Recovery of Debts in the RDDB Act. If that be the position of law, then the learned senior counsel is right in his submission that the impugned order could not have been passed by the DRT.
The decision of the Supreme Court in the case of Managing Director (supra) was in context with a civil suit filed by the respondent for recovery of a particular amount in the court of the Civil Judge. The Supreme Court looked into Section 22 of the Act, 1985 and held that a suit would be barred when an inquiry under Section 16 of the SICA is pending - It is a well-settled principle of law that a judgment and decree passed by a court or tribunal, lacking inherent jurisdiction, would be a nullity.
The impugned order passed by the DRT as well as the recovery certificate and the order of attachment passed by the Recovery Officer is not sustainable in law - Application allowed.
Order u/s. 172(4) - Assessment of shipping income - draft of the assessment order as is required u/s. 144C not issued - HELD THAT:- Regarding contention of the assessee that order u/s. 172(4) of the income tax act 1961 is bad in law without first issuing draft of the assessment order as is required u/s. 144C of the act, we observed that the Co-ordinate Bench on identical issue on identical facts in the case of assessee itself LRS Management K/S (As foreign commercial manager/agent of principal freight beneficiary Maersk Tankers Singapore Pvt. Ltd. (MTSPL) Shipping Pvt. Ltd. vs. ITO (International Taxation) Rajkot Bench [2018 (8) TMI 674 - ITAT RAJKOT] after following the decision in the case of LR2 Management K/S vs. Income Tax Officer [2015 (11) TMI 274 - ITAT RAJKOT] Tribunal held that draft order u/s. 144C was required to be issued and for enabling the assessing officer for following the path envisaged in section 144C the matter was remitted back to the file of assessing officer.
Thus remit this case to the file of assessing officer for framing fresh assessment order u/s. 172(4) after following the path envisaged in section 144C of the act. Therefore, at this stage, we are not dealing with other issues in appeal and the assessee is at liberty to raise all these issues in the set aside proceedings. With these observations, the matter has been restored to the file of assessing officer. Therefore, the appeal of the assessee is allowed for statistical purposes.
Maintainability of appeal - application under Section 9 of the I&B Code still pending - HELD THAT:- The application under Section 9 of the I&B Code filed against the Appellant – M/s. Amrit Cements Ltd. is still pending before the Adjudicating Authority (National Company law Tribunal) Guwahati Bench, Guwahati merely because certain record has been called for by the Adjudicating Authority, we are not inclined to interfere with the impugned order dated 25th October, 2019.
Whatever the arguments as raised on behalf of the learned counsel for the Appellant may be raised before the Adjudicating Authority before it passes the final order under Section 9 of the I&B Code and thereafter, if there is an aggrieved party, that may move before this Appellate Tribunal.
Liquidation of the corporate debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is pertinent to refer to the statutory provisions provided in Section 33 (2) of the Code which envisages that: “where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of creditors (approved by not less than sixty-six percent of the voting share) to liquidated the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub- clauses (i), (ii) and (iii) of clause (b) of sub-section(1) - upon failure of resolution process there being no approved resolution plan by Committee of Creditors, liquidation has to follow as recommended by the Committee of Creditors. Adherence to statutory requirement has to be in toto. When the language of the Code is clear and explicit the Adjudicating Authority must give effect to it whatever may be the consequences.
In the factual background and in the absence of any approved resolution plan and for want of time beyond statutory CIRP period; there is no other alternative left but to order in conformity with the decision of the Committee of Creditors with loo % voting share, for liquidation of the corporate debtor under Section 33 of the Code.
Levy of late fees u/s 234E - intimation issued u/s 200A on processing of Statement of Tax Deducted at Source - HELD THAT:- We find that the Hon’ble High Court of Karnataka in the case of Fatehraj Singhvi Vs. Union of India [2016 (9) TMI 964 - KARNATAKA HIGH COURT], had concluded, that the notice under Sec.200A of the Act computing fee under Sec.234E, to the extent the same related to the period of the tax deduction prior to 01.06.2015 was liable to be “set aside‟. The aforesaid judgment of the Hon‟ble High Court of Karnataka had thereafter been relied upon in the case of Sonalac Paints & Coating Ltd. [2018 (6) TMI 303 - ITAT CHANDIGARH]
As regards the levy of fees u/s 234E for A.Y. 2016-17 is concerned, we find that as the statements of TDS for the first quarter therein involved was to be filed latest by 15.07.2015, i.e. subsequent to the cut off period of 01.06.2015 (the date on which the section enabling levy of fees u/s 234E was made available in Sec.200A), therefore, no infirmity arises from the imposition of the aforesaid fees in the hands of the assessee.
As observed A.R had admitted that he is not assailing the levy of fees u/s 234E insofar the delay involved in filing of the statement of TDS for A.Y. 2016-17 is concerned. Thus in terms of our aforesaid observations the fees levied by the ACIT, CPC, Ghaziabad u/s 234E for A.Y. 2013-14, 2014-15 and A.Y. 2015-16 cannot be sustained and is thus deleted. - Decided in favour of assessee.
Dishonor of Cheque - vicarious liability u/s 141 of NI Act - HELD THAT:- The Hon'ble Apex Court in Aneeta Hada Vs. M/s Godfather Travels & Tours Pvt. Ltd. [2012 (5) TMI 83 - SUPREME COURT] has held that for the offence under Section 138 of the Act committed by a company, the company as well as every person in charge of and responsible to the company for conduct of the business of the company at the time of commission of the offence shall be deemed to be guilty of offence. The Hon'ble Apex Court has discussed the provisions of Section 138 along with Section 141 of the Act which deals with the offence committed by a company. Hon'ble Apex Court has held that for maintaining the prosecution under Section 141 of the Act, arraying of a company as an accused is imperative.
According to the complaint itself, the cheque was issued for Pawan Hardware Store, Sandeep talkies,near Court Road, Civil Lines, Muzaffar Nagar by the Director, Devendra Kumar Garg- petitioner. It is not averred in the compliant that Devendra Kumar Garg was in charge of and responsible for the conduct of the business of the company at the time of commission of the offence and hence he will not be liable for criminal action. It may be noted that the firm named as Ravi Organics Ltd., Nai Mandi,Muzaffar Nagar,, who was the principal accused, has not been made party in the complaint as stated above and side by side the necessary averment required to be made in the complaint satisfying the requirements of Section 141 of the Act are also lacking to maintain prosecution.
Determination of PE - assessee activity under the contract - duration of assessee’s operation in India - Threshold period of 12 months exceeded to have a PE established under Article 5(2)(g) of the DTAA - India-Cyprus Tax Treaty - assessee was awarded a contract by Allseas Marine Contractors, S.A.(AMC) in relation to the development of the Dhirubhai 1 and Dhirubhai 3 gas fieldslocated offshore in the Krishna Godavari Basinof the East Coast of India - Whether duration of assessee’s operation in India have to be counted from the visit of its employee? - Assessee submitted that as per the provisions of Article 5(2)(g) of the DTAA, a non-resident engaged in construction activities in India would be considered as having a PE in India only if the construction activity continues for a period exceeding twelve months - HELD THAT:- As relying on assessee own case for the AY 2008-09 [2018 (8) TMI 438 - ITAT DELHI] we answer the issue in favour of the assessee holding that no income of the assessee on contract executed by the assessee in India can be held to be taxable under Article 5(2)(g) of the DTAA. Grounds of appeal of the assessee are accordingly allowed.
Murder - offence punishable Under Sections 148, 302 and 149 Indian Penal Code - HELD THAT:- It is well established position in law that this Court, while entertaining an appeal by way of special leave Under Article 136 of the Constitution of India, ordinarily, will not attempt to reappreciate the evidence on record unless the decision of the Trial Court or the High Court is shown to have committed a manifest error of law or procedure or the conclusion reached by the Courts below is, on the face of it, perverse. Merely because another view on the same evidence is possible, that cannot be the basis to interfere with the finding of fact recorded by the Courts below much less concurrent finding of facts.
The so-called deficiencies pointed out by the Appellants in the investigation or the prosecution case, are insignificant and trivial and cannot be the basis to reject the whole evidence of Bishan Singh (PW-1) and Baljit Singh (PW-2) which is corroborated by the other evidence in the form of medical reports and recovery of human blood stained soil from the spot near the hospital where Mohar Pal was assaulted by the Accused. The fact that the blood group of the human blood stained soil cannot be ascertained, can be no basis to discard that piece of evidence. Even the recovery of weapon used by Rohtas (Accused No. 1) during the commission of the offence reinforces the role and involvement of the Appellants in the commission of the crime. The quality substantive evidence on record clearly establishes the guilt of the Appellants.
Even the fact that the Accused have been acquitted in the cross-cases filed with regard to the first incident which took place at 6.30 p.m. on the same evening will not take the matter any further for the Appellants. That was an independent incident whereas the finding of guilt recorded against the Appellants is concerning the incident which had taken place at 8.30 p.m. near the Government Hospital, Palwal as proved by the prosecution witnesses. In fact, the incident at 8.30 p.m. was the counter blast of the fight which had taken place between two groups at 6.30 p.m. and the previous enmity between them. The fact that there is no evidence about the previous enmity and that no evidence is produced by the prosecution in that regard, cannot be the basis to reverse the concurrent view taken by two Courts below-recording finding of guilt against the Appellants for commission of offence to assault Mohar Pal near the Government Hospital, Palwal at around 8.30 p.m. on 25th April, 1998.
No interference is warranted in this appeal - Appeal dismissed.
Liquidation of Corporate Debtor - Section 33 of the IB Code, 2016 - HELD THAT:- In the instant case, the CoC in their second CoC meeting held on 06.05.2019, unanimously resolved to liquidate the Corporate Debtor and authorized the IRP to intimate this Adjudicating Authority as to their decision to liquidate the Corporate Debtor with 100% voting share.
This Adjudicating Authority hereby order for Liquidation of M/s. Smartec Build Systems Private Limited, which shall be conducted in the manner as laid down in Chapter III of part II of the I&B Code, 2016 - Application allowed.
Reopening of assessment u/s 147 - HELD THAT:- As it is an admitted fact that the assessee has raised the ground challenging the issuance of notice u/s 148 for reopening the assessment u/s 147 but the same was not before the Ld. CIT(A) and there was no discussion in the impugned order. As therefore, in the absence of clear facts on record regarding the reopening of the assessment under section 148 of the Act, deem it appropriate to set aside this case back to the file of the Ld. CIT(A) to be adjudicated afresh by considering the legal grounds raised by the assessee and providing due and reasonable opportunity of being heard to the assessee. Appeal of the Assessee is allowed for statistical purpose.
Exemption u/s 11 - Assessment of trust -voluntary donation received - Whether CIT-A erred deleting the disallowance made and accepted the assessee’s claim as voluntary donation received whereas the alleged donations were in fact capitation fee collected for admission in an Engineering College run by Shri Venkateswara Educational and Health Trust? - HELD THAT:- Perusal of the orders of the Co-ordinated Bench of this Tribunal in the assessee’s own case in respect of all assessees clearly show that the Co-ordinated Bench of this Tribunal has confirmed the order of the learned CIT (Appeals) for the Assessment Year 2011-12 2017 (4) TMI 1605 - ITAT CHENNAI] by holding that no interference was necessary in respect of the decision of the learned CIT (Appeals) who has extensively analyzed the issue and decided the matter by placing reliance on the various decisions of the Hon’ble High Court and upheld the orders of the learned Commissioner of Income Tax (Appeals).
Thus we find no reason to interfere in the order of the learned Commissioner of Income Tax (Appeals). Consequently, the appeals filed by the Revenue stands dismissed.
Violation of the provisions of section 144C (13) - As argued AO erred in passing the final assessment order u/s 143(3) r/w 144C without giving effect to the binding directions of the DRP within a period of one month as stipulated u/s 144C(13) - HELD THAT:- AO had failed to frame the assessment order as per the directions of the DRP. The AO fully conscious of the fact that the DRP had issued directions, however, noted that the concerned TPO i.e. DCIT since had failed to comply with the directiuons within stipulated period, he, therefore, framed the impugned assessment order without complying with the directions of the DRP. Hence, the order passed by the AO had no sanctity of law and was nothing but a waste paper. AO observed that when any order from TPO would be received after passing of the impugned assessment order, the impugned assessment order would be rectified.
This type of action is neither recognized, nor justifiable in the eyes of law. Only because the concerned TPO had failed to follow the directions of the DRP and failed to frame assessment order as per statutory provisions, that does not entitle the AO to frame the assessment order, for the sake of formality and leave the issue open so as to get it rectified as and when the order from the TPO as per directions of DRP will be received and thereby opening the limitation period to frame the assessment order for indefinite period, which, in our view, is not mandate of the Statute. The assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 144C is, therefore, quashed.
Penalty u/s 271(1)(b) - assessee had failed to comply with the “SCN" that was issued to him u/s 274 r.w.s 271(1)(b), and had neither appeared before him nor furnished any written submissions - HELD THAT:- Assessee was never intimated about the fate of his letter dated 17.10.2016 (received by the A.O on 19.10.2016), insofar his request for adjourning the penalty proceedings under Sec. 274 r.w.s 271(1)(b) was concerned. In fact, it can safely be held that the assessee had remained divested of a sufficient opportunity of being heard before being saddled with the penalty u/s 271(1)(b). Apart therefrom, we find that subsequently the A.O had passed the assessment order u/s 143(3) and not under Sec. 144.
Accordingly, it can safely be concluded that the subsequent compliances/furnishing of information by the assessee were held by the A.O to be good compliances and the defaults committed earlier were ignored by him. As observed by the ITAT, Delhi in the case of (i). Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust [2007 (8) TMI 386 - ITAT DELHI-G] and (ii). Globus Infoco Limited [2016 (6) TMI 1304 - ITAT DELHI] the framing of assessment under Sec. 143(3), though not conclusively, but to some extent would rule out the circumstances justifying imposition of any penalty u/s 271(1)(b). Accordingly, in the backdrop of our aforesaid observations, we are unable to subscribe to the imposition of penalty under Sec. 271(1)(b) by the A.O, and finding the same to be unjustified, quash the same. Appeal of the assessee is allowed.
Constitutional Validity of the circular dated 01.7.2016, updated on 03.7.2017 - no provision of giving an opportunity of hearing and is in violation of the principle of audi alteram partem - validity of fraud monitoring return dated 9.7.2019 - HELD THAT:- Let respondents No.1, 2 &4 be served through dasti summons for 16.12.2019.
Addition u/s 69 - cash deposited in Yes Bank on various dates un-justified and un-sustainable - HELD THAT:- In the present case it is not disputed that the amount of cash was explained as available with the assessee in the hands to deposit in the bank. Assessee has substantiated the availability of the cash by producing the cash flow statement, day-to-day cash book, Ledger account of the Bank with narration and the complete bank statement. Same were disbelieved by the learned assessing officer for the only reason that there is an inordinate delay in deposit of the cash in the bank account.
AO and CIT- A did not show that above cash was not available in the hands of the assessee or have been spent on any other purposes.
The coordinate bench in ACIT vs Baldev Raj Charla [2008 (12) TMI 241 - ITAT DELHI-C] also held that merely because there was a time gap between withdrawal of cash and cash deposits explanation of the assessee could not be rejected and addition on account of cash deposit could not be made particularly when there was no finding recorded by the assessing officer or the Commissioner that apart from depositing this cash into bank as explained by the assessee, there was any other purposes it is used by the assessee of these amounts. Ground of the appeal of the assessee is allowed and orders of lower authorities are reversed. Appeal of assessee allowed.
Levy of ADD - Classification of goods - Embroidery machine needle - applicability of Circular No. 24/2011 dt. 31.05.2011 - Confiscation - redemption fine - penalty - HELD THAT:- The amount of duty involved in the case is Rs.1,38,91,406/-. Therefore, it is found that original authority has exceeded the breach as contained in the circular cited above and has decided the issue which is beyond his jurisdiction in terms of monetary limits prescribed by the Board’s Circular No.24/2011-Cus. dated 31.05.2011. Under the circumstances, it is found that an order passed beyond the jurisdiction is not sustainable and is required to be set aside. To this extent, the impugned order also is liable to be set aside as the same did not consider the basic limits for adjudication proceedings prescribed by the Board and powers conferred under Section 12 of the Customs Act, 1962.
The issue requires to go back to the competent authority for re-adjudication after following the principles of natural justice. Ld. Counsel for the appellants, while expressing no objection for remanding the case back to the competent authority, requests that as life consignments are pending, a time frame for adjudication of the case may be put in place - matter remanded to the competent authority who shall re-adjudicate the case within 12 weeks of receipt of this order.
Issuance of copy of summons and communications of the wife of the petitioner addressed to the respondent No.2 - HELD THAT:- Issue Notice, returnable on 28th November 2019 till then, no coercive action shall be taken against the petitioner in connection with the subject matter of this petition.
Seeking permission of promotion to the next semester, i.e. the 9th semester, based on the credits obtained by them during the academic year 2018-19 - permission to appear for the 8th semester end term examinations in the next even semester, i.e. the 10th semester, as supplementary papers - interpretation of Clause 9.1 and Clause 11.3(v) of Ordinance 11 - HELD THAT:- Clause 9 deals with the aspect of attendance. Clause 9.1 requires that a student must have a minimum attendance of 75% in the aggregate of all the courses taken together in a semester. The minimum required attendance of 75% can be reduced by 5%, at the discretion of the competent authority, for reasons to be recorded. The said Clause makes it amply clear that no student, who has less than 70% aggregate attendance, shall be allowed to appear in the semester term end examination. It also states that in respect of programmes that are regulated by a statutory regulatory body, which in the present case, is the Bar Council of India, if such a body provides for any specific guideline for attendance, the same shall be applicable, as may be approved by the Board of Studies of the concerned school.
Clause 9.1 of Ordinance 11 is founded on the guidelines laid down in Rule 12 of the BCI Rules, which prescribes minimum required attendance as 70% with a margin of 5% permitted in exceptional circumstances, at the discretion of the competent authority - In the present case, the attendance of both the respondents/students is abysmally low. The 8th semester of the fourth academic year had commenced on 07.01.2019 and ended on 31.05.2019. 218 classes were conducted in the said semester for the courses taken by Naincy.
It is settled law that while interpreting a statute, the assumption is that it is a designed to be workable. A construction that results in defeating the plain and clear intent of the legislature ought to be rejected by the courts even though there may be some inexactitude in the language used - on harmonising Clauses 9 and 11.3(v) of Ordinance 11 in the backdrop of the legislative intent, the indisputable position that emerges is that the word "or" has been used in Clause 11.3 (v) (ii) in a disjunctive manner. It provides for two set of circumstances as the minimum threshold required to be crossed by a student who seeks promotion to the next academic year which is that a student should have attended minimum of 70% classes in the aggregate of the courses taken together in a semester and he should have obtained at least 50% of the total credits in the academic year in question.
For the respondents/students to state that on obtaining a minimum of 50% credit score as prescribed in an academic year, they are entitled to be promoted to the next academic year notwithstanding the fact that they did not cross the threshold of the minimum attendance prescribed, is found to be untenable and liable to be rejected outright. A degree in law cannot be treated as an empty formality. A law degree encompasses all that a University stands for and is a reflection of the nature of knowledge that it has imparted to its students.
Reopening of assessment u/s 147 - reassessment proceedings initiated to reassess other income - different items of income not connected or related with the reasons to believe - appellant-trust deposited/ invested money with its specified person - Assessee argued that addition made in the assessment order u/s. 143(3)/l47 on the basis of the reasons recorded was deleted by Ld. CIT(A) therefore, the other additions made in the said reassessment order which were not part of the reasons recorded for reopening the assessment are not sustainable in the eye of law - HELD THAT:- We note that in the assessee`s case under consideration, the assessment for A.Y. 2009-10 was completed u/s. 143(3)/11 of the Act on 01/03/2011. A notice under section 148 of the Act was issued on 22.03.2016 to reopen the assessment u/s. 147 of the Act. The only reason for issuing the said 148 notice as per Reasons Recorded dated 17.08.2016 was that income has escaped assessment for having deposited money with the specified person M/s. Nissan Developers &Properties Pvt. Ltd.
We note that addition was deleted by ld CIT(A) and since AO has not issued a fresh notice under section 148 of the Act to reassess the other income therefore, the reassessment proceedings initiated by the assessing officer to reassess other income ( as noted by us above) is null and void in the eye of law, hence we quash the reassessment proceedings under section 147/148 of the Act. - Decided in favour of assessee.
The Supreme Court dismissed the appeal as withdrawn after the Appellant sought permission to do so. Pending applications were disposed of. (Case citation: 2019 (11) TMI 1747 - SC)
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