|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1393 Records
-
2021 (2) TMI 1319
Disallowance u/s. 14A r.w.r 8D(2)(iii) - suo motto amount offered by it in its revised return of income - HELD THAT:- The additional ground of appeal raised by the assessee wherein it had sought restriction of the disallowance u/s 14A to the extent of the dividend income received during the year under consideration merits acceptance. Accordingly, following our view taken while disposing off the cross-appeals of the assessee and the revenue for A.Y 2010-11 and A.Y 2011-12 [2021 (2) TMI 666 - ITAT MUMBAI] vide our consolidated order passed we herein direct the A.O to restrict the disallowance u/s 14A to the extent of the exempt dividend income received by the assessee during the year in question. Accordingly, the additional ground of appeal no. 1 raised by the assessee is allowed
Whether no disallowance u/s 14A r.w Rule 8D was called for in its case? - We are afraid the same does not find favour with us. As the method for computing the disallowance u/s 14A had been prescribed in Rule 8D vide the IT(Fifth Amendment) Rules 2008, w.e.f 24.03.2008 thus, no infirmity arises from the disallowance worked out by the A.O by following the said prescribed method. The Ground of appeal No. 1 raised by the assessee is dismissed.
Disallowance u/s 14A r.w Rule 8D(2)(iii) while disposing off the assessee’s appeal - We herein direct the A.O to consider only those investments which had yielded dividend income for the purpose of computing the “average value of investments‟ for computing the disallowance u/s 14A r.w. Rule 8D(2)(iii). The Ground of appeal No. 2 is partly allowed for statistical purposes.
Disallowance of interest expenditure u/s 14A r.w Rule 8D(2)(ii) - revenue is aggrieved with the order of the CIT(A) wherein it is stated that the appellate authority had wrongly directed the A.O to follow the decision in the case of HDFC Bank, Mumba[2014 (8) TMI 119 - BOMBAY HIGH COURT] - HELD THAT:- We find that no such direction/observation is discernible from the order of the CIT(A). In fact, as the A.O had not made any disallowance of any interest expenditure u/s 14A r.w Rule 8D(2)(ii) during the year in question thus, there was no occasion on the part of the CIT(A) to have relied upon the aforesaid judgments of the Hon’ble High Court of Bombay which are in context of the issue of disallowance of interest expenditure u/s 14A r.w Rule 8D(2)(ii) in the backdrop of availability of sufficient interest free funds with the assessee.
CIT-A Advising the A.O to consider only those investments made in the non-subsidiary companies which had yielded dividend income for the purpose of disallowance u/s 14A r.w Rule 8D(2)(iii), which as claimed by the revenue is contrary to the CBDT Circular No. 5 of 2014, dated 11.02.2014 - As respectfully following the view taken by the Tribunal while disposing off the revenue’s appeal for A.Y 2010-11 [2021 (2) TMI 666 - ITAT MUMBAI], though approve the view taken by the CIT(A) that only those investments which had yielded exempt income during the year are to be considered for computing the “average value of investments‟ while working out the disallowance u/s 14A r.w Rule 8D(2)(iii), but then considering the judgment of the Hon’ble Apex Court in the case of Maxopp Investment Ltd.[2018 (3) TMI 805 - SUPREME COURT] are not persuaded to further confine the same only to the extent of such investments which were made by the assessee in non-subsidiary companies. The Grounds of appeal No. 2 & 3 raised by the revenue are partly allowed in terms of our aforesaid observations.
TP Adjustment - international transaction of providing corporate guarantee/counter guarantee by the assessee to various banks and other corporate bodies for and on behalf of its AEs - HELD THAT:- Hon’ble High Court of Bombay in the case of CIT Vs. Everest Kento Cylinders Ltd. [2015 (5) TMI 395 - BOMBAY HIGH COURT] had observed, that considerations which applied for issuance of a Corporate guarantee are distinct and separate from that of bank guarantee and thus, no feasible comparison could be made between the guarantees issued by the commercial banks as against a corporate guarantee issued by a holding company for the benefit of its AE, a subsidiary company.
After so observing, the Hon’ble High Court had approved the guarantee fees of 0.5% charged by the assessee before them from its AE, as against that of 3% that was adopted by the TPO by referring to the bank guarantee rate. In our considered view the guarantee fee of 1% p.a of the value of the international transaction charged by the assessee before us from its AEs for providing corporate guarantee for and on their behalf, which was been benchmarked by it by applying external CUP method was at arm’s length and no adjustment as regards the same was liable to be made. We herein direct the A.O/TPO to vacate the upward transfer pricing adjustment made as regards the international transaction of providing of corporate guarantee by the assessee to its AEs. The Grounds of appeal raised by the assessee are allowed in terms of our aforesaid observations.
Levy of Education Cess and the Secondary and Higher Education Cess on the total income of the assessee is allowable as deduction u/s 37 - HELD THAT:- As relying on SESA GOA LIMITED case [2020 (3) TMI 347 - BOMBAY HIGH COURT]we herein direct the A.O to allow the assessee’s claim for deduction of education cess and secondary and higher education cess u/s 37 of the Act. The additional ground of appeal no. 2 is allowed.
-
2021 (2) TMI 1318
TP Adjustment - determine the arm’s length purchase price of Bisoprolol Fumarate - Selection of MAM - TPO proposed to apply comparable uncontrolled price (CUP) method on the reasoning that similar product has been exported by Unichem Laboratories Ltd at a price of Rs.32,624.56, whereas, the assessee has purchased the same product from AE @Rs.64,815/- per keg - HELD THAT:- When the matter ultimately travelled to Tribunal, the co-ordinate bench, though, upheld applicability of CUP, however, accepting assessee’s plea held that considering strict quality control and stringent regulatory method followed in Germany compared to India, 10% quality adjustment has to be provided while determining ALP under CUP. Further, accepting assessee’s plea, the Tribunal in no uncertain terms has held that only the price at which the product is sold in domestic market, that too, sale transaction exceeding quantity of 20 kgs has to be considered for applying CUP. Admittedly, in the facts of the present case the TPO while applying CUP has considered the price charged for export sales made by Unichem Laboratories Ltd. Therefore, in our considered view, such price adopted for applying CUP is invalid. That being the case, when no comparable price for sale of the product in the domestic market is available in terms of the directions of the Tribuanl in assessee’s own case for Assessment Years 2009-10 and 2010-11 [2016 (3) TMI 1105 - ITAT MUMBAI], there is no other course left open, but to accept the benchmarking of the assessee under TNMM. In view of the above, we delete the addition of Rs.95,48,976/-. This ground is allowed.
Disallowance of 70% out of the expenditure incurred towards distribution of samples - HELD THAT:- While deciding identical issue in assessee’s own case for Assessment Year 2003-04 [2013 (9) TMI 306 - ITAT MUMBAI] the Tribunal has restored the issue to the Assessing Officer for fresh examination after verifying the details of names and addresses of doctors. Keeping in view the aforesaid directions of the Tribunal in assessee’s own case, we restore the issue to the Assessing Officer for fresh examination after due opportunity of being heard to the assessee. While doing so, the Assessing Officer may also examine the decision of the co-ordinate bench in case of Johnson & Johnson Ltd [2014 (2) TMI 555 - ITAT MUMBAI] This ground is allowed for statistical purpose.
Disallowance u/s 14A - assessee while working out the disallowance AO has also included investment in REC Bond and investment in NSB, NABARD and REC Bonds - HELD THAT:- Such investment should be excluded for computing disallowance under rule 8D(2)(iii). We find substantial force in the aforesaid submission of the assessee. Accordingly, we direct the Assessing Officer to verify the claim of the assessee and exclude the investments capable of yielding taxable income from the average value of investment for computing the disallowance under rule 8D(iii). Needless to mention, the Assessing Officer must afford reasonable opportunity of being heard to the assessee before deciding the issue.
Disallowance by invoking section 145A - AO while examining the details of loans and advances furnished by the assessee, noticed that the assessee had receivables on account of CENVAT credit and other taxes - HELD THAT:- It is a fact that while deciding identical issue in assessee’s own case for Assessment Year 2003-04, the Tribunal in the order referred to above, has restored the issue to the Assessing Officer for fresh examination keeping in view that the adjustment, if any, has to be made to opening stock, purchases, sales and closing stock. We have also noted that while giving effect to the order of the Tribunal, the Assessing Officer has deleted the adjustment made under section 145A of the Act. In view of the above, we restore the issue back to the Assessing Officer for fresh examination keeping in view the directions of the Tribunal in Assessment Year 2003-04 that adjustment, if any, must be made to opening stock, purchases, sales and closing stock. This ground is allowed for statistical purpose.
It is a fact that while deciding identical issue in assessee’s own case for Assessment Year 2003-04, the Tribunal in the order referred to above, has restored the issue to the Assessing Officer for fresh examination keeping in view that the adjustment, if any, has to be made to opening stock, purchases, sales and closing stock. We have also noted that while giving effect to the order of the Tribunal, the Assessing Officer has deleted the adjustment made under section 145A of the Act. In view of the above, we restore the issue back to the Assessing Officer for fresh examination keeping in view the directions of the Tribunal in Assessment Year 2003-04 that adjustment, if any, must be made to opening stock, purchases, sales and closing stock. This ground is allowed for statistical purpose.
Disallowance of club expenditure holding it to be of capital nature - HELD THAT:- We have noticed that while deciding identical issue in assessee’s own case for Assessment Year 2007-08 [2013 (9) TMI 163 - ITAT MUMBAI] the Tribunal has allowed the claim of the assessee. Facts being identical, respectfully following the aforesaid decision of the Tribunal, we delete the disallowance made by the Assessing Officer. This ground is allowed.
Disallowance u/s 43B(f) - HELD THAT:- We find that in case of UOI Vs. Excide Industries Ltd. [2020 (4) TMI 792 - SUPREME COURT] while reversing the judgment of the Hon’ble Calcutta High Court, has held hat this type of expenditure has to be disallowed under section 43B(f) of the Act if they were not actually paid during the year. Following the decision of the Hon’ble Supreme Court noted above, we dismiss the ground of the assessee.
-
2021 (2) TMI 1317
TP Adjustment - applying LIBOR + 2% interest rate on the monthly closing balance of advances to subsidiaries during the period relevant to the assessment year under appeal - HELD THAT:- Both sides are unanimous in stating that the nature of transaction of advancing loans by assessee to its overseas AEs is identical to the one as in assessment year 2007-08.
Co-ordinate Bench after considering the issue in detail held that advancing of loans to AEs is an international transaction and as regards determination of interest rate, Tribunal held that LIBOR +2% on monthly closing balances of advances be applied for transaction to be at arm’s length.
Hon'ble Bombay High Court [2017 (6) TMI 1087 - BOMBAY HIGH COURT] in Income Tax Appeal No. 1869 of 2014 Tribunal was justified in directing the Assessing Officer to determine the Arm’s Length interest by considering the LIBOR (London Inter Bank Operative Rate) plus 2% on the monthly closing balances of the advances
The Hon’ble High Court upheld the findings of the Tribunal on this issue and dismissed the appeal of Revenue. Since the issue has now been settled by the Hon’ble Jurisdictional High Court in favour of the assessee, we find no infirmity in the order of CIT(A), hence, the same is upheld, ergo, the appeal of Revenue is dismissed sans merit.
-
2021 (2) TMI 1316
Duty of care of locker in the bank - Whether the Bank owes a duty of care to the locker holder under the laws of bailment or any other law with respect to the contents of the locker? - Whether the same can be effectively adjudicated in the course of consumer dispute proceedings? - whether the Bank owes an independent duty of care to its customers with respect to diligent management and operation of the locker, separate from its contents? - Whether compensation can be awarded for noncompliance with such duty?
HELD THAT:- In light of the conflicting decisions of the National Commission, it is found that the approach adopted by the National Commission in the impugned judgment is the correct approach - In the present case, the Respondent bank has not disputed their negligence in breaking open the locker in spite of clearance of rental dues by the Appellant. However, the number of items originally deposited by the Appellant inside the locker is a contested fact. Hence, we do not propose to record any conclusions on whether the Appellant locker holder in the present case is entitled to claim return or recovery of the value of the ornaments alleged to have been deposited by him. We are in agreement with the findings in the impugned judgment to the extent that the Appellant must file a separate suit before the competent civil court for seeking this relief and for proving that the aforesaid items were actually in the custody of the bank.
Separate Duty of Care of the Bank with regard to Locker Management - HELD THAT:- The imposition of liability upon the bank with respect to the contents of the locker is dependent upon provision and appreciation of evidence in a civil suit for such purpose. However, this does not mean that the Appellant in the present case is left without any remedy. Banks as service providers under the earlier Consumer Protection Act, 1986, as well as the newly enacted Consumer Protection Act, 2019, owe a separate duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems - This duty of care is to be exercised irrespective of the application of the laws of bailment or any other legal liability regime to the contents of the locker. The banks as custodians of public property cannot leave the customers in the lurch merely by claiming ignorance of the contents of the lockers.
In Mahendar Singh Siwach [2006 (10) TMI 518 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] the bank negligently allowed a third party, who was the previous allottee of the locker, to break open the appellant’s locker and take away the valuables therein. It was found that the bank had failed to duly record and complete the required formalities with respect to change of allotment from the third party to the current allottee, i.e., the appellant.
The present state of regulations on the subject of locker management is inadequate and muddled. Each bank is following its own set of procedures and there is no uniformity in the rules. Further, going by their stand before the consumer fora, it seems that the banks are under the mistaken impression that not having knowledge of the contents of the locker exempts them from liability for failing to secure the lockers in themselves as well - it is imperative that this Court lays down certain principles which will ensure that the banks follow due diligence in operating their locker facilities, until the issuance of comprehensive guidelines in this regard.
Looking to the facts and circumstances of the case, we deem it appropriate to impose costs of Rs. 5,00,000/on the Bank which should be paid to the Appellant as compensation. The amount of Rs. 5,00,000/shall be deducted from the salary of the erring officers, if they are still in service. If the erring officers have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/as litigation expense - Appeal disposed off.
-
2021 (2) TMI 1315
Appointment to 384 posts of Police Sub-Inspectors, Attendants (Sergeant) and Company Commanders by the Home Department of the Government of Jharkhand - during the pendency of the Writ Petitions, the appointments of 42 candidates made on the basis of the original select list were cancelled - State Government contended that the High Court ought not to have directed the appointment of the Writ Petitioners as they were initially appointed due to irregularities committed by the authorities in the selection process.
Correctness of the direction given by the High Court to reinstate the Writ Petitioners - HELD THAT:- The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected.
A similar situation arose in Vikas Pratap Singh's case [2013 (7) TMI 1065 - SUPREME COURT], where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singh's case, we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present.
Claim of the intervenors in the Writ Petitions for appointment - HELD THAT:- There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the Writ Petitions admittedly have secured more marks than the Writ Petitioners. After cancellation of the appointments of the Writ Petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the interveners. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The interveners have no right for appointment to posts beyond those advertised. The contention on behalf of the interveners in the Writ Petitions is that they cannot be ignored when relief is granted to the Writ Petitioners who were less meritorious than them. We are unable to agree - No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the interveners as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the Writ Petitioners.
The judgment of the High Court is upheld and the Appeals are dismissed.
-
2021 (2) TMI 1314
Vivad Se Vishwas Scheme, 2020 - assessee requested for withdrawal of the appeals and stated that the assessee has opted to settle the dispute relating to the tax arrears for the assessment years under consideration under the Vivad Se Vishwas Scheme, 2020 - HELD THAT:- As we accept the request of the assessee for withdrawal of the appeals.
In the result, the appeals of the assessee are dismissed as withdrawn. Above decision was announced on conclusion of Virtual Hearing in the presence of both the parties on 17th February, 2021.
-
2021 (2) TMI 1313
Validity of adjudication proceeding as contemplated in Section 13 of FEMA - limitation for initiation of the adjudicatory proceeding for imposition of penalty - proceedings are against a company - default had been in the knowledge of the prosecuting agency - manner as provided in Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 (as amended), read with rules and regulations made thereunder - HELD THAT:- In the instant case, information was sought from the petitioner in the year 2017 and when, despite letters, information was not provided and a prima facie case with regard to contravention of the provisions of FEMA, 1999 was made out, a complaint was filed in the year 2020 on which the impugned notice has been issued. The facts of the present case are therefore totally distinguishable from those which were there before the Bombay High Court in the case of Sanghvi Reconditioners Pvt. Ltd.[2017 (12) TMI 906 - BOMBAY HIGH COURT]
In the instant case, as we have already noticed, the information in respect of default by the petitioner company cannot be deemed to be with the Directorate of Enforcement, that is the prosecuting agency, therefore, the reasonable period to commence the adjudicatory proceeding would be counted from the date when that information was received by the prosecuting agency. As this is a pure question of fact and it is not shown to us that the default had been in the knowledge of the prosecuting agency far in excess of the reasonable period, the issue whether there had been an unreasonable delay in drawing adjudicatory proceeding would have to be raised and dealt with at the appropriate stage of the adjudicatory proceeding and not at this stage, while addressing a challenge to the show-cause notice because the show-cause notice, by disclosing the institution of the complaint and specifying the contravention of the provisions of FEMA, discloses all the necessary requirements to warrant initiation of adjudicatory proceeding against the petitioner.
As we find that the complaint discloses all the necessary ingredients to make out a prima facie case with regard to contravention of the provisions of FEMA, the impugned show-cause notice issued for adjudication of that complaint does not suffer from any legal infirmity which may justify its quashing, as has been prayed for. The petition is dismissed.
-
2021 (2) TMI 1312
Rectification of mistake - Validity of order of this Tribunal as an ex-parte order passed against a dead person - HELD THAT:- We find that a mistake apparent on record, has crept into the order of this Tribunal dt. 22/11/2019, as it was passed on a dead person, though, the legal heir of the assessee had filed an application for being brought on record. Under these circumstances, we recall the impugned order dt. 22/11/2019. The registry is directed to bring on record, the legal heir of the assessee Shri Sumitro Das and post the case for fresh hearing, in due course. The registry is further directed to issue notice of hearing to the legal heir Shri Sumitro Das.
This miscellaneous application of the assessee is allowed.
-
2021 (2) TMI 1311
Delay in appointment of Company Secretary of the company with a delay of 91 days - violation of the provisions of sub-section (4) of section 203 of Companies Act and rules made thereunder - HELD THAT:- The company and its officers, who have defaulted the provisions of section 203(1) r/w 203(4) of the Act for non- appointment of Whole-Time Company Secretary are liable for penalties under section 203(5) of the Act w.e.f. 28th August, 2019 to 26th November, 2019 - the penalty so imposed is commensurate with the aforesaid failure committed by the Noticee(s).
Attention is also invited to section 454(8)(ii) of the Act regarding consequences of non-payment of penalty within the prescribed time limit of 90 days from the date of the receipt of copy of this order in terms of the provisions of section 454(8)(i) of the Act - In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to Beam Global Spirits & Wine (India) Private Limited and all directors/officers in default mentioned herein above and also to Office of the Regional Director (Northern Region), Ministry of Corporate Affairs at New Delhi.
Application disposed off.
-
2021 (2) TMI 1310
Addition on account of unsecured loan - HELD THAT:- We have gone through the detailed findings of ld CIT(A) and noticed that assessee has failed to produce books of accounts, vouchers, bills and Bank Statements before the assessing officer as well as before ld CIT(A). The Ld Counsel in his written submissions stated that if a chartered Accountant gives unqualified certificate in the prescribed form then in that situation books of accounts, voucher, bills, bank statements etc should not be called for either in the case of public company or in the case of private companies where the accounts have been audited by an auditor qualified to audit a public company's account and he has given a certificate, similar to that given in the case of a public company. We do not agree with ld Counsel.
The purpose of scrutiny assessment under section 143(3) is to examine, books of accounts, voucher, bills, bank statements etc. That is, in order to verify the unsecured loan, octroi expenses and advances, the assessing officer has to examine books of accounts, voucher, bills, bank statements, confirmations etc. which the assessee has failed to produce before us. The argument of the ld Counsel to the effect that if the assessee submits audit report then in that situation, the assessee need not to furnish books of accounts, voucher, bills, bank statements, confirmations etc. is not acceptable.
We have gone through the order of the CIT (Appeals) and noticed that the Assessee has not submitted any evidence or documents during the appellate proceedings in respect of loans, advances and expenses. Therefore, we do not find any infirmity in the order of CIT (Appeals). We decline to interfere in the order of ld. CIT (Appeals). His order on this issue is hereby upheld and grounds of appeal raised by the assessee is dismissed.
-
2021 (2) TMI 1309
Direct Tax Vivad Se Vishwas Act - HELD THAT:- Assessee, vide letter dated nil, has requested for withdrawal of the appeal filed by assessee and stated that the assessee has opted to settle the dispute relating to the tax arrears under the Vivad Se Vishwas Scheme, 2020 for the assessment year under consideration. A certificate to this effect under section 5(1) of The Direct Tax Vivad Se Vishwas Act, 2020 has also been filed.
We accept the request of the assessee for withdrawal of the appeal. Appeal of the assessee is dismissed as withdrawn.
-
2021 (2) TMI 1308
Commercial admiralty suit - bill of charges raised for port dues and anchorage charges against Respondent No.1 herein (original Applicant), who is an auction purchaser of the defendant vessel - Sections 48, 49 and 50 of the Major Port Trusts Act, 1963 - HELD THAT:- Under Section 50-B, when a vessel enters a port but does not discharge or take in any cargo or passengers, she is charged with port dues at a rate to be determined by the Authority, which, in any event, should not exceed half the rate with which she otherwise would be chargeable - Dealings between parties as also pleadings respectively filed by them also indicate the same understanding on the part of both stakeholders; both MbPT and Applicant have understood port dues and anchorage fees as separate charges governed by separate individual clauses of the Tariff notification.
Pilotage charges - HELD THAT:- The impugned order does not find any reference to pilotage charges. It is, however, submitted that the order provides for liberty reserved unto the Applicant to raise an issue concerning these charges in case an appeal is filed by MbPT challenging the impugned order. It is submitted that such liberty includes leave to file cross objection about pilotage charges. The liberty reserved for cross objection of the Applicant concerns the issue of charging of half anchorage fees under Section 50-B of the Act; there is no indication that any liberty was reserved on the issue concerning pilotage charges - there are no merit even in this aspect of the cross objection.
The amount deposited by the Applicant as a condition of interim relief in its favour may now be withdrawn by MbPT. Such withdrawal, however, shall not be made for a period of four weeks from today - the commercial appeal is allowed.
-
2021 (2) TMI 1307
Reimbursement of differential tax amount arising out of change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) with effect from 01.07.2017 - grievance of the Petitioner is that in view of the introduction of the GST, Petitioner is required to pay tax which was not envisaged while entering into the agreement - HELD THAT:- The Petitioner shall make a comprehensive representation before the appropriate authority within two weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 15.03.2021.
The writ petition is disposed off.
-
2021 (2) TMI 1306
Seeking impleadment of applicant to the present company petition - Order I, Rule 10(2) of the Code of Civil Procedure - HELD THAT:- Present petition is filed by the company along with members/directors of petitioner No. 1-company, which generally is not the case. Thus the interest of all members will be taken care of, albeit without being joined in the proceedings. If the arguments of the applicant are accepted that he has qualified to be impleaded as a party in proceedings under Section 241-242 of the Companies Act, 2013, merely because he is a member of the company as described under Section 2(55) of the Companies Act, 2013, then every member may need or file such application, at any stage of the proceedings and the main petition may not see the light of the day ever.
There is not even a whisper about any instance/incident/any document to show that non-joinder of the present applicant will prejudice the rights of the proposed petitioner or will prejudice the adjudication of the petition. The petition is filed in the year 2016 whereas the impleadment is filed in 2020 (though not barred) specially when applicant claims that his membership and/or directorship are of 2007-08 and after rounds of litigations are upheld in year 2014. So at the time of filing of present petition in 2016, the same could have been considered to make present applicant as a party or not.
There are no merits in the application - application dismissed.
-
2021 (2) TMI 1305
Dishonor of Cheque - Partnership Firm was dissolved during February 2017 and the subject cheque is said to have been issued by A-2 on 05.05.2017, after the dissolution of the Partnership Firm - allegations made in the complaint does not satisfy the requirements of Section 141 of the Negotiable Instruments Act - HELD THAT:- The issue regarding the dissolution of Partnership firm cannot be gone into by this Court and it is a factual issue which can be decided only in the course of trial.
Requirements of Section 141 of the Negotiable Instruments Act - HELD THAT:- In the present case, A-1 is the Partnership Firm and A-2 who is the partner is the signatory of the cheque. The petitioner A-3 has been roped in as an accused since she is a partner of A-1 Firm. The complaint can be prosecuted as against the petitioner only if the allegations made in the complaint satisfies the requirements of Section 141 of the Negotiable Instruments Act.
In the present case, the respondent has merely repeated the words used under Section 141 of the Negotiable Instruments Act and there is absolutely no allegation as to how and in what manner the petitioner is incharge and responsible for the conduct of the business. In the absence of such an allegation, the complaint is not maintainable as against the petitioner. The law on this issue is well settled.
The proceedings is hereby quashed insofar as the petitioner is concerned - the Court below is directed to complete the proceedings, against the other accused persons within a period of three months from the date of receipt of a copy of this order.
Petition allowed.
-
2021 (2) TMI 1304
Civil Services (Preliminary) Examination, 2020 - Seeking mandamus to the 1st respondent to extend one additional attempt to the petitioners/intervenors as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020 - Articles 14, 19, 29 and 21 of the Constitution of India - grant of extra attempts to last attemptees who missed their attempts due to sudden and strict lockdown due to unprecedented pandemic in March, 2020 sudden and strict lockdown due to unprecedented pandemic in March, 2020.
Whether the petitioners/intervenors and other similarly placed candidates are entitled to another/additional chance for CSE 2021 on account of the unprecedented Covid-19 pandemic which as alleged has deprived them from effectively participating in the Examination 2020?
HELD THAT:- Under the scheme of Rules 2020, mere filling up of the form is not sufficient to avail an attempt. If someone appeared in either of the paper of the preliminary examination, that was considered to be an attempt availed by the candidate and, in the given situation, after the application form was filled, the candidates who wanted to withdraw their application form at the later stage because of the Covid-19 pandemic, the commission took a policy decision to open the window for the second time, which in the ordinary course is not available under the scheme of rules, for the candidates who intended to withdraw their application from 1st August, 2020 to 8th August, 2020. Since the examination was scheduled for 4th October, 2020 only those candidates were left who were mentally prepared to appear and willing to avail an opportunity of appearing in the Examination 2020 and after appearing in the examination, when they could not qualify, it has given a way to the present litigation on the specious ground of Covid-19 pandemic that they were unable to effectively participate in the process of selection which has been initiated by the Commission in holding preliminary examination on 4th October, 2020.
So far as the instant case is concerned, there are limited attempts for the candidates who appeared in the general category and the scheme of Rules 2020 does not provide any discretion to the 1st respondent to grant relaxation either in attempt or in age and any exercise of discretion which does not vest with the 1st respondent, if exercised, may go in contravention to the scheme of Rules 2020.
If an additional attempt remains restricted to the last attemptees for the reason that they had suffered during Covid 19 pandemic, all attemptees irrespective of the nature of attempt (i.e. 1st, 2nd etc.) who appeared in Examination 2020 must have faced the same consequences as being faced by the writ petitioners and each one of them have suffered in one way or the other during the Covid-19 pandemic. At the same time, this reasoning would equally apply to those who have crossed the upper age barrier. More so, when no discretion is left with the 1st respondent to grant relaxation in the age bracket to the candidates other than provided under Rule 6 of the scheme of Rules 2020 which indeed the present petitioners are not entitled to claim as a matter of right and that apart, those who have withdrawn their forms either because of lack of preparation or because of some personal reasons but have crossed the upper age limit to appear in CSE 2021, they would also be equally entitled to claim and no distinction could be made whether the candidate has appeared in the Examination 2020 and availed the last attempt or attempts is still available at his disposal or has crossed the upper age limit.
The thrust of submission of learned counsel for the petitioners was that discretion has been exercised by the respondent as a matter of policy in the earlier selections and the present petitioners have a legitimate expectation that the Government must exercise its discretion to overcome the unprecedented situation which the petitioners have faced while appearing in the Examination 2020 and their right of fair consideration and effective participation in the selection process has been denied to them which is in violation of Articles 14 and 21 of the Constitution.
The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.
Petition dismissed.
-
2021 (2) TMI 1303
Reimbursement of balance amount payable under the GST Act - Cancellation of registration of petitioner - non-filing of GST returns for a continuous period of six months - HELD THAT:- The question whether, in fact, any amount is owed to the Petitioner by Opposite Party No.1 on account of GST deducted from its bills or vice versa, has become a highly disputed question of fact. The claim of the Petitioner ultimately, in simple terms, is one for money which it seeks as reimbursement from Opposite Party Nos.1 and 2. It is not possible for this Court in its writ jurisdiction under Article 226 of the Constitution to calculate on a case by case basis which component of the work executed by the Petitioner for Opposite Party Nos.1 and 2 is amenable for reimbursement on account of GST and which is not. This being a disputed question of fact, the Court declines to undertake this exercise in the writ jurisdiction and leaves it to the Petitioner to seek other appropriate remedies available to the Petitioner in accordance with law.
Petition disposed off.
-
2021 (2) TMI 1302
Condonation of delay of 295 days in filing SLP - no staisfactory explanation - HELD THAT:- There has been an inordinate delay of 295 days in filing the Special Leave Petition which has not been satisfactorily explained by the petitioner.
The Special Leave Petition is, accordingly, dismissed on the ground of delay.
-
2021 (2) TMI 1301
Seeking condonation of delay in filing appeal - Seeking grant of bail - Smuggling - Charas - applicability of statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- The special leave petition is dismissed on the ground of delay.
-
2021 (2) TMI 1300
Validity of Look-Out Circular on a declared bankrupt - It is contended that the petitioner does not have any business with respondent no.3 but only with its Singapore Branch; as such, respondent no. 3, which is situated in India, cannot have any cause of action to lodge a complaint asking for an LOC to be issued against the petitioner - applicability of winding up and bankruptcy orders passed by the Singapore Court, under the law of Singapore on the Look-Out Circular - HELD THAT:- Admittedly, the petitioner's Company, which is the main source of business of the petitioner as per the averments made in the writ petition itself, was would up by the Singapore High Court. Even, on a personal level, the petitioner was declared to be bankrupt, albeit by the Singapore High Court. The premise of security for the loan taken by the petitioner from the Singapore Branch of respondent no.3 was thus denuded by such declarations. Although passed under the Singaporean law, such orders utterly jeopardized financial standing and integrity of the petitioner, which was sufficient to raise apprehension that the petitioner might not be in a position to repay the loan.
No distinction can be drawn, merely on territorial grounds, between the UCO Bank of India (respondent no.3) and its branch at Singapore. The branches of a bank are, as the nomenclature suggests, outlets of the bank itself and not separate juristic entities. The transactions carried out through those branches are those which have, at their source, the parent branch which, in the present case, is the UCO Bank in India. Admittedly, the UCO Bank is a nationalized bank and a Government of India undertaking. Thus, the financial interests of the Singapore Branch of respondent no.3 are inextricably linked with those of the respondent no.3 itself and, consequently, with the interests of Indian public money - The winding up and bankruptcy orders were sufficient to freeze the business of the petitioner in Singapore, which was the source of repayment of loan by the petitioner to respondent no.3 through its Singapore branch. This, in turn, directly affected the Indian interests vested in respondent no.3.
The only other sticking point, as regards authority of the bank officials to issue a request, was obliterated vide Office Memorandum dated October 12, 2018, which introduced Clause (xv), empowering the Chairman/Managing Directors/Chief Executive of all public sector banks to issue requests for LOCs. In the present case, the designated official of the respondent no.3-Bank issued the request which was, thus, valid in law. The present writ petitioner is not a mere sailor in a merchant vessel, whose livelihood depends on travels outside India and, has to have a steady income by dint of such travels to put money into his salary account as per any Division Bench direction of this Court; nor is the present wit petitioner a person against whom a specific offence has been alleged but the relevant FIR and other documents are admittedly not available on record, as were the facts of the judgment/order cited by the petitioner. The present petitioner is a declared bankrupt with his only company, disclosed in the writ petition, having been wound up by orders of a competent court of Singapore, which country is the admitted business base of the petitioner.
Not only the economic interests of India but bilateral relations with Singapore (both of which are recognized in the relevant Office Memoranda as valid grounds of issuance of LOC) will suffer in the event the petitioner is permitted to leave India, thereby evading repayment of the huge loans taken by him from the Singapore branch of respondent no.3, a nationalized and Government undertaking bank of India.
Without incriminating the petitioner in any future proceeding/challenge in any court of law against the winding up and bankruptcy orders, it can safely be observed that there was sufficient ground for apprehension to issue an LOC against the petitioner - petition dismissed.
........
|
9911796707
