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Showing 441 to 460 of 1180 Records

• 2013 (8) TMI 743 - ITAT MUMBAI
  

  Re-opening of assessment u/s 147 of the Income Tax Act – Late filing of return – Held that:- There is no denial of the fact that assessee has taxable income and even admitted the same under provision of section 115JB. The return of income also was not filed in time and return filed was beyond time limits permitted so an invalid one. - as the assessee has not furnished return of income eventhough has taxable income, we uphold the proceedings under section 147. The grounds are rejected. - Decided against the assessee.

  Sale of depreciable asset - Benefit of Indexation - assessee claimed that the assessee has not claimed any depreciation from assessment year 2000-01 and so provision of section 50 are not applicable – Held that:- contention of assessee not acceptable - Reliance has been placed upon the Hon'ble Kerala high Court in the case of CIT vs. Sakthi Metal Depot [2010 (1) TMI 659 - Kerala High Court] and Chhabria Trust vs. ACIT [2003 (5) TMI 479 - ITAT MUMBAI] - From the year 2000-01 assessee neither filed returns nor offered income under 'house property', so as to consider that asset was not used for business - , the contention of the assessee that asset was deemed to be 'capital asset' and not 'business asset' cannot be accepted. - Decided against the assessee.

  Interest u/s. 234B, 234C and 234D - Interest u/s. 234B, 234C and 234D cannot be levied as the assessee is a notified person and the provisions of the Special Court (Trial of offences relating to transactions in Securities) Act 1992 will prevail – Held that:- Reliance has been placed upon the judgment in the case of CIT vs. Divine Holdings Pvt. Ltd. [2012 (4) TMI 100 - BOMBAY HIGH COURT] - levy of interest u/s. 234A, 234B and 234C is mandatory – Decided against the Assessee.

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• 2013 (8) TMI 742 - ITAT AGRA
  

  Notice u/s 148 - Reasons to be recorded – borrowed satisfaction - Held that:- ITO, Agra was not having jurisdiction over the assessee, therefore, should not have recorded the reasons for reopening of assessment and further, he was having no reasons to believe that income chargeable to tax has escaped assessment because the order of ADM, Agra has not reached finality on admission of writ petition by the Hon'ble High Court.

  The reasons which are not in accordance with law have been recorded at Agra by the ITO, who was not authorized to do so, as was having no jurisdiction over the assessee and the Assessing Officer having jurisdiction over the assessee at Aligarh did not do anything with regard to the initiation of re-assessment proceedings and has not recorded any reasons for re-assessment proceedings and merely acted on the borrowed satisfaction.

  Reliance has been placed upon the judgments in the case of Signature Hotels P. Ltd. vs. ITO,[ 2011 (7) TMI 361 - Delhi High Court] ; Hon'ble Rajasthan High Court in the case of CIT vs. Shree Rajasthan Syntex Ltd., [2008 (5) TMI 276 - RAJASTHAN HIGH COURT].

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• 2013 (8) TMI 741 - ITAT AGRA
  

  Penalty u/s 271(1)(c) of the Income Tax Act - concealment of income - AO rejected to books of accounts since 90% of expenses paid in cash and not verifiable - AO applied the net profit rate @ 3.1% instead of 2.1% - Held that:- In the penalty order, the AO did not mention whether he has imposed the penalty for concealment of income or for furnishing inaccurate particulars of income. Relying upon the judgment of Hon'ble Gujrat High court in the case of New Sorathia Engineering Co. vs. CIT, [2006 (1) TMI 71 - GUJARAT High Court] , wherein it has been held that it is incumbent upon the Assessing Officer to state whether penalty was being levied for concealment of particulars of income by the assessee or whether any inaccurate particulars of income had been furnished by the assessee, it has been held in the present case that levy of penalty on estimate of income be cancelled.

  There is no definite finding of fact or any contrary material has been brought on record to prove that the assessee has filed inaccurate particulars of income - Levy of penalty under Section 271(1)(c) of the Act in the facts and circumstances of the case at estimate of income, would not be warranted – Decided in favor of Assessee.

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• 2013 (8) TMI 740 - ITAT CHANDIGARH
  

  Unexplained deposit(investment) in the bank - source of cash deposited in bank - sale of property by the assessee for Rs. 56,78,751 - sale deed was executed by the GPA holder for a consideration of Rs. 17,50,000 - Held that:- Since this sale deed was not executed by the assessee she can not be said to have the knowledge that the sale deed was executed only for Rs. 17,50,000/-. No fault can be found with the issue of Power of Attorney which was executed in favour of Shri Ravinder Kumar only after receipt of full consideration. The fact of payment of cash also becomes clear from the copy of affidavit filed before the lower authorities

  When these facts regarding execution of sale deed at lower amount came to the knowledge of the assessee, assessee's husband filed a complaint on 14.11.2008 with the Tehsildar, Naraingarh. Copy of this complaint was marked to the Chief Ld. Commissioner of Income Tax also. On the basis of this complaint, action was taken by the Registering authority which becomes clear from the order of the Collector (translated copy of the same is available at page 48 to 51 and 52 to 58 of the paper book). The Collector has clearly held that upon Inspector of adjoining area that though registered sale deeds were executed on the collector rate but the same was less than the prevalent market rate. This clearly shows that the assessee was taken for a ride and the cash portion paid to the assessee by the buyer was not declared and whatever steps the assessee could have taken, have been taken by the assessee to report the matter to the authorities.

  The cash has been received by the assessee on sale of agricultural land and the same has been deposited in the bank. - Source proved - No addition.

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• 2013 (8) TMI 739 - ITAT MUMBAI
  

  Treatment of short term capital gain as business income - investment in shares – Assessee is an individual and proprietor of M/s. Urmi Plastics which is engaged in the business of manufacturing of PVC, pouches and tubing - Apart from business income, assessee also showed capital gain income both under the head long term and short term for share transactions – Assessee's share transactions are to be considered as trading transactions assessed both short term capital gain and long term capital gain offered by the assessee as business income - Held that:- Assessee was involved in share transactions in earlier years and also in later years. Considering the transactions and submissions of the assessee, the same cannot be treated as business income as assessee had no borrowed funds, no set up to do share transactions as a trading activity - Coupled with the fact that the assessee has neither claimed benefit of opening and closing stock, nor AO disturbed the working of the assessee except treating the gain as business income, income declared by the assessee as short term capital gain can not be treated as business income.

  Transaction to be treated as short term or long term capital gain - Assessee got the shares transferred to demat account as on 31.03.2005 and sold as on 18.04.2005 - There is no verifiable evidence to establish whether the assessee purchased shares on 02.04.04 as claimed – Held that:- Assessee purchased the shares and transferred them into demat account on 31.03.05 - Gain earned by the assessee can be brought to tax as capital gain but as short term capital gain, as there is evidence of purchase as on 31.03.05 and sale as on 18.04.05 - A.O. is directed to treat gains as short term capital gain and tax accordingly.

  Commission amount on presumption and notion for computing tax - Commission paid at 5% for arranging long term capital gain – Held that:- The transaction is neither proved as an arranged one and nor there is evidence on record that the assessee arranged transaction by paying any commission. The presumptions cannot be made while bringing an amount to tax and no notional amount can be brought to tax – Deletion of commission amount as there is no evidence of assessee paying any commission so to sustain the addition so made.

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• 2013 (8) TMI 738 - ITAT MUMBAI
  

  Revision - Jurisdiction of CIT u/s 263 - According to CIT, A.O. was duty bound u/s.68 of the Act to do the enquiry of the information received from the FTD before passing it’s orders, and that in fact was also in substance the directions by the FTD vide its order dated 04.02.2011, and which he did not clearly do, passing the order the very next day. His order was, therefore, erroneous and prejudicial to the interest of the Revenue. - Held that:- A.O. was himself of the considered view that further enquiry is required, having sought materials for the same, though was unable to, in the exigencies of the case, verify and examine the same. In fact, the hon'ble court itself clarifies therein that the CIT could establish that the facts on record or the inference drawn from the facts on record per se justify and mandate further enquiry or investigation by the A.O., which had not been conducted by him - Mandate of s. 68 of the Act remaining unsatisfied.

  As per the decision in CIT vs. Sunbeam Auto Ltd. [2009 (9) TMI 633 - Delhi High Court] wherein it has been clarified that the argument of lack of enquiry or inadequate enquiry cannot be employed where the A.O. has taken one of the possible views, showing his application of mind on the issue - The argument as regards inadequate enquiry predicates on non-application of mind, so that where, therefore, proper application of mind is reflected, the argument of lack of enquiry would not hold. The enquiry, or its absence, even as explained earlier, is purely a matter of fact, so that the decision turns once again on facts - There has been a valid assumption of jurisdiction u/s.263 in the instant case – Appeal allowed – Decided in favor of Assessee.

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• 2013 (8) TMI 737 - ITAT COCHIN
  

  Disallowance of exemption u/s 54F - investment in residential house - The dispute is with regard to the area of the land which is required for convenient enjoyment of 254.94 sq.mts of residential house. - Deposit in capital gain deposit scheme - date of completion of the building.- Held that:- the land appurtenant to the residential house has to be determined with regard to the locality where the residential house is situated, the social status of the individual assessee, profession of the individual and other factors for proper and convenient enjoyment of the residential house. - 5 cents of land determined by the CIT(A) is very less in the State of Kerala. - matter remitted back to AO for reconsideration.

  Computation of Capital Gains - Expenditure incurred towards development of the land which was sold and brokerage paid to the extent of Rs.11 lakhs - Held that:- when the assessee withdrew the claim before the assessing officer by a letter dated 16-12- 2010, the same cannot be reagitated either before the CIT(A) or before this Tribunal.

  Deduction u/s 54B - No capital asset was subjected to agricultural operation - Held that:- Merely because the assessee's brother has not made any claim u/s 54B that cannot be a reason for disallowing the claim of the assessee. When the assesee has produced certain material before this Tribunal and claimed that the land was subjected to cultivation, this Tribunal is of the considered opinion that the assessing officer has to examine the documents independently and record finding whether the land in question is subjected to cultivation or not? Therefore, the omission of the assessee's brother to claim deduction u/s 54B cannot be a reason to disallow the claim of the assessee. Accordingly, the order of the lower authorities are set aide and the issue is remitted back to the file of the assessing officer. The assessing officer shall reconsider the issue in the light of additional evidence filed by the assessee before this Tribunal and thereafter decide the same in accordance with law after giving reasonable opportunity to the assessee - Decided in favour of assessee.

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• 2013 (8) TMI 736 - ITAT DELHI
  

  Denial of accumulation under section 11(2) of the Act – assessee Society is running educational institute - alleged that assessee did not specify the purpose of accumulation in Form 10B - Held that:- Assessee has accumulated income for the specific purpose and for which the funds have been used accordingly in subsequent years - assessee has applied the accumulation of funds as specified which were in accordance with the object of the trust – disallowance set aside – Following decision of Additional Commissioner of Income-tax, Range - 1, Aligarh Versus Jamia Urdu [2012 (10) TMI 255 - ITAT, AGRA] - Decided against Revenue.

  Disallowance under section 40A(3) - Held that:- As CIT(A) has deleted the addition holding that the income of the Institution is exempt under section 10(22) the disallowance under section 40A(3) became academic - Following decision of Addl. Commissioner of Income Tax (A. O.) Range-1, Aligarh. Versus Jamia Urdu, [2012 (10) TMI 255 - ITAT, AGRA] - Decided against Revenue.

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• 2013 (8) TMI 735 - ITAT MUMBAI
  

  Transfer pricing adjustment - Rejection of comparables - loss making companies - Held that:- the comparables could not be rejected only on the ground of loss making. The cases of loss making companies are required to be further examined to find out if the loss had occurred during the normal course of business or because of some extraordinary factors which have affected the comparability of the transaction. Only in the later case the loss cases have to be excluded. No such exercise has been done - both assessee and TPO have applied TNMM method at entity level which is not correct.

  The adjustment is required to be computed only with respect to international transaction and not in respect of the entire business transactions - Merely because the assessee had made mistakes in computing the TP adjustment the authorities cannot follow the same blindly as they are duty bound to compute the adjustment correctly as per law. Because of the mistakes committed by both the sides TP adjustment has been made at Rs. 65.27 crore when the entire purchases from the AE was only Rs. 56.25 crore.

  It will not be appropriate to compare the margin of manufacturing companies to those of trading companies. - business profile of the assessee itself was not very clear. - it is appropriate that a fresh transfer pricing study be undertaken for selecting proper comparables after careful study of functional profile of the assessee so as to arrive at proper TP adjustment - Decided in favour of assessee.

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• 2013 (8) TMI 734 - ITAT JODHPUR
  

  Unexplained investment u/s 69 - Ownership of income - Protective assessment - A.O. has concluded that the transaction in question related to purchase of beetel nut made by DTI [Dinesh Tobacco Industries] and not related to Shri Nand Kishore Malani in any manner - A.O. proposed to assess the income in the hands of DTI on the basis of DRI's finding - Held that:- n there is no scope for making the addition of ₹ 3,75,00,000/- , in the same manner as it was surrendered by Shri Nand Kishore Malani, in the hands of the assessee firm when Shri Nand Kishore Malani has made a surrender of the entire money and he has also paid taxes thereon and has also disclosed this income in his return of income. There is no scope for making any addition either on substantive basis or on protective basis in the hands of the assessee firm or in the hands of M/s Dinesh Pouches Ltd. - Following decision of M/s Dinesh Tobacco Industries Vs. DCIT [2013 (8) TMI 715 - ITAT JODHPUR] - Decided in favour of assessee.

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• 2013 (8) TMI 732 - ITAT MUMBAI
  

  Block assessment - Section 158BC and 158BD - amount in the Bank Account and fixed deposit as unexplained credit - validity of initiation of proceedings u/s 158BC and applicability of the provisions of section 68 -Held that:- a mere declaration by someone under VDIS is not sufficient being a satisfactory explanation of cash credit appearing in the books of the assessee which is subjected to further verification and examination to find out the true nature and source of such amount. Further, the declaration made by the claimants can be considered only with respect to those cases where the declaration under the VDIS as well as the deposits in the Bank Account are in the same name.

  A declaration made by a person under the VDIS of certain amount and then made a claim regarding the deposit with the Bank which is not in the name of such person cannot be considered as an explanation u/s 68 of the Income Tax Act. Therefore, the declaration under VDIS can be considered for further examination and verification for the purpose of explanation in respect of deposits in the Bank Account and FDR only with respect to the cases where the declaration and deposit are in the same name and not in the fictitious name.

  Appraisal report is not a relevant and cogent material to be considered for assessment purposes. What is the material is the evidence and information as well as books of account detected during the course of the search and seizure proceeding and subsequent investigation.

  Deduction u/s 80P - Held that:- where the addition has been made u/s 68 with respect to the undisclosed deposits, therefore, the benefit of Section 80P is not available on such unexplained income.

  Matter remanded back with the direction to AO that, if the deposit and the declaration in the VDIS are in the same name and pertains to the same time/year then it can be considered as an explanation subject to verification of the correct name and identity of the depositor. The declaration of income under VDIS post search and seizure action but name of the declarant does not match with the name of the depositors in the account, the same would not be considered as relevant evidence.

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• 2013 (8) TMI 731 - ITAT AMRITSAR
  

  Income from undisclosed sources - Gift received through NRE account - Onus to prove the genuineness of gift - CIT sustained addition - Held that:- A gift normally connotes a transaction where a person parts his own property to another without consideration and for love and affection. It is rare to come across a person who makes a gift of money to another out of the borrowed funds - merely because a gift has come through banking channels and from identifiable sources would not be sufficient to discharge the burden of the assessee in respect of cash credit shown to be a gift, unless inter-alia, the credit-worthiness of the donor was also proven.

  In the present case, the alleged donor, Smt. Amarjit Kaur, is certainly not shown to be credit worthy since she had no indepdent sources of income and even the allowance received from the UK Govt. was not sufficient to cover the alleged gifts. The claim of taking a loan from Sh. Jatinder Kumar Sidhu is doubtful since the transaction was admittedly in cash and the claim has also been made at a very late stage. The transaction is also not verifiable. Further, as noted earlier, the claim of making gift out of the borrowed money is against normal human probability. The contention that the assessee had no other source of income is not relevant as far as addition u/s 68 of the Act is concernd, since this is a deeming provision which treats unexplained cash credit as the assessee's income - Following decision of Yash Pal Goel v. CIT [2009 (1) TMI 58 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.

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• 2013 (8) TMI 730 - CESTAT NEW DELHI
  

  Reduction of redemption fine and penalty - held that:- It is an established fact on record that the machine imported enjoying customs benefit was utilized for job work which has hampered interest of Revenue - such a use is not possible without human intervention and object or motive is imputed to that. Therefore, the mild fine of Rs.2.00 Lakhs imposed in adjudication does not call for interference. - decided against the assessee.

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• 2013 (8) TMI 729 - CESTAT AHMEDABAD
  

  Illegal diversion of goods. - Stay application – waiver of pre deposit of penalty u/s 112(b) and 114(i) – Held that:- Assessee in his statement accepted that there was some illegality in clearing the muriate of potash - assesseee had not cooperated with the lower authorities during the adjudication proceedings - cout relied upon Maruti Seeds & Fertilisers (2013 (8) TMI 570 - CESTAT AHMEDABAD) - assessee had not made out the case and all the defences taken by him need to be gone into detail which can be done only at the time final disposal of the appeal – The stay petition was filed for the waiver of pre-deposit of the amount of penalty imposed by the adjudicating authority on the appellant under the provisions of Section 112(b) and Section 114(i) – pre-deposit ordered for an amount of Rs.1,25,000 – stay granted partly.

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• 2013 (8) TMI 728 - CESTAT AHMEDABAD
  

  Waiver of pre deposit of penalties u/s 112(a) – Stay petition - Held that:- Show cause notice and the earlier round of litigation that the entire case starts on the basis of clearance of consignments based on forged/tampered licence - findings recorded by the adjudicating authority that the forged/tampered licences were not available even at the time of investigations and hence could not be produced before the Bench – waiver of pre deposit allowed to the assessee – decided in favour of assessee.

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• 2013 (8) TMI 727 - CESTAT NEW DELHI
  

  Benefit of Notification No.102/2007 - Refund of SAD - no excise duty was collected in the invoices because BED is nil, hence no declaration was made on the Invoice that no credit of additional duty was taken - Held that:- every restriction, stipulation condition as well as limitation prescribed by the Notification was to be scrupulously followed to avail benefit of notification Court followed the judgements of State of Jharkhand & Ors vs. Ambay Cements & Anr (2004 (11) TMI 319 - SUPREME COURT OF INDIA ) and Mihir Textile Ltd. Vs CCE (1997 (4) TMI 75 - SUPREME COURT OF INDIA) - We do appreciate the difficulty of the appellant. But we are helpless to come to rescue of the appellant granting exemption at the cost of the people of India when there was failure to fulfil condition of notification. - Failure to fulfil condition of notification, disentitles the appellant to the benefit of exemption given by the notification. – decided against the assessee.

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• 2013 (8) TMI 726 - CESTAT NEW DELHI
  

  Confiscation of Goods u/s 111(d) and 111(m) - Mis-declaration of Goods - Redemption of Goods u/s 125 – Penalty u/s 112(a) - Permissibility of Review - The assesses filed Bill of Entry for import of consignments declared as old woolen and synthetic rags/garments, completely fumigated - Revenue was of the view that the Bill of Entry was assessed by enhancing the value of consignment - Whether the review made by the authority concerned was permissible under the law or not - Held that:- The argument of the assesse that the appeal filed was time-barred under provisions of Section 129D failed - Fraud and justice cannot dwell together - The delay was not a matter for which the assesse should get protection for his fraudulent action.

  COLLECTOR OF CENTRAL EXCISE Versus M.M. RUBBER CO. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] and COMMISSIONER OF CUSTOMS, KANDLA Versus ESSAR OIL LTD. [2004 (10) TMI 90 - SUPREME COURT OF INDIA] - Assessment of Bill of Entry, without giving any reasons, was an appealable order - But the matter could not have been decided in appeal because the order did not give the reasons for the order - The issue of a reasoned order got delayed because the documents were withdrawn for investigation by DRI - It was the result of the fraudulent action of the appellant in giving fraudulent description of goods on the Bill of Entry.

  Whether an attempt of revoke would pass a test of legal propriety as mentioned in Section 129D of the Customs Act, 1962 – Held that:- New facts implying fraud were noticed even after order was passed by Commissioner (Appeals) - the new facts should have been taken into account by the Tribunal for condoning the delay in filing appeal - COMMISSIONER OF CUSTOMS Versus CANDID ENTERPRISES [2001 (3) TMI 101 - SUPREME COURT OF INDIA] – the Argument of the assesse was not maintainable under Section 129D - The fact that the goods were not examined properly before passing the order cannot be considered as a new fact - only the facts that came out of fresh examination are new facts – Decided against Assesses.

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• 2013 (8) TMI 725 - CESTAT NEW DELHI
  

  Mis-declaration of Goods - Rejection of drawback claims – Held that:- The Rejection of Drawback claims was upheld due to the conduct of the assesses and in view of the investigation which was in progress - The delay was relevant only when the drawbacks were held admissible and the consequence was that the exporters were eligible for interest - The drawback claims on goods exported during the period were held up as export attempted to be made was found to be misdeclared and investigations were commenced - The Customs Act envisages payment of interest in terms of Section 75A of the Customs Act in the event of delay in disbursement of drawback claims.

  DEPB Scrips Cancelled on Being Time Expired - Held that:- The question of denying TRA without getting DEPB scrips cancelled was not proper and legal - However, as DEPB scrips were time expired even at the time of passing of the order no order was required to be passed - the investigation revealed that the export made were not in accordance with shipping bills, it would have been appropriate that references should have been made for cancellation of that DEPB scrips – The assesse-company have asked for telegraphic release advice (TRA) only in respect of two DEPB scrips though they were issued totally five DEPB scsrips - The Commissioner had denied the request for TRA - The action to deny TRA without taking action to get the DEPB scrips cancelled had no meaning - There was no order on other DEPB scrips - it was clear that the validity of DEPB scrips was only one year and the grant of TRA had no significance as of now unless the DEPB scrips were revalidated by the DGFT authorities - In the event of any request for revalidation of DEPB scrips it would be necessary for the customs authorities to take it up for with the DGFT authorities against any such renewal if so advised.

  Redemption Fine u/s 125 - Penalty u/s 114 – Held that:- Redemption fine imposed on goods which were already exported and not available for confiscation were set aside - Penalty was reduced - this was a case of export of sub-standard items and overvaluation of exports - the charge of mis-declaration and overvaluation, the Commissioner had chosen to impose excessive amounts as redemption fine, obviously in excess of market price - redemption fine imposed were to be set aside.

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• 2013 (8) TMI 724 - DELHI HIGH COURT
  

  Winding up Petition u/s 433(e) and (f) r.w.434 and 439 of the Companies Act - Held that:-The order and directions will not be given effect to for a period of nine weeks to enable them to make payment of the outstanding amount by that time – if no payment was made and/or neither party applies to the Court for any directions, the order for appointing the OL will become operational - the OL will file a status report by the next date.

  The OL was appointed and was directed to take over all the assets, books of accounts and records - The OL shall also prepare a complete inventory of all the assets before sealing the premises in which they were kept - He may also seek the assistance of a valuer to value the assets - He was permitted to take the assistance of the local police authorities, if required - Publication of the citation of the petition be effected in the Official Gazette, 'The Statesman' (English) and 'Veer Arjun' (Hindi) in terms of Rule 24 of the Companies (Court) Rules, 1959 ('Rules').

  Directors were directed to strictly comply with the requirements of Section 454 of the Act and Rule 130 of the Rules and furnish to the OL a statement of affairs in the prescribed form verified by an affidavit within a period of 21 days from when the order becomes operational - They will also file affidavits in the Court, with advance copies to the OL, within four weeks setting out the details of all the assets, both movable and immovable and enclose therewith the balance sheets, profit and loss accounts and copies of the statements of all the bank accounts for the last three years.

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• 2013 (8) TMI 723 - SUPREME COURT
  

  Finalised Seniority List - Instructions of Deputy Secretary Department of Revenue that the revised seniority list of Assistant Commissioners of Customs and Central Excise circulated in terms of Circular dated 27.02.2013 was the "finalised seniority" list of Assistant Commissioner appointed up to 1996-1997 - Held that:- The facts and circumstances of the case shall not prevent the Government from giving to the officers seniority from the year the vacancies became available - The direction was issued at the request made by the Government of India and on the concession of Mr. Sharan, learned senior counsel for the respondent which shall not operate as a precedent in future.

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