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Case Laws
Showing 121 to 140 of 1429 Records
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2014 (2) TMI 1312 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Misleading information for IPO - Inadequacy of disclosures in the offer document - violation of provisions of SEBI (Disclosure and Investor Protection) Guidelines, 2000 - Held that:- In this case, there is no material before us to show that the appellant had taken any proactive step at all to find out the correct information or to independently verify the information available. No specific query in this respect was made from the right sources of such information namely the target company and the stock exchanges though it was known that information about the listing of the shares of the target company in each stock exchange was specifically required to be disclosed in the letter of offer. Instead, the appellant made a presumption that all shares were listed in the four stock exchanges of Chennai, Mumbai, Delhi and Ahmedabad and left it to others to point out if that was not the fact. This is certainly no way to exercise due diligence and we cannot but agree with the Whole Time Member of the Board that the appellant had violated regulation 24(4) of the Takeover Code and clauses 1, 2 and 7 of the code of conduct for merchant bankers.” From the foregoing, it is no doubt that Appellant had failed to exercise due diligence which resulted in lack in veracity and inadequacy of disclosures in the offer document, which did not provide investors with a reliable document did mis-lead investors to invest in shares of ESL and hence such non-disclosure had the potential to disturb securities market equilibrium and hence Respondent has rightly held Appellant to failed to comply with clauses 5.1 (5.1.1 and 5.1.2), 5.3.3.2(ii) under chapter V of SEBI (DIP) Guidelines, 2000 read with Regulation 111 of SEBI (ICDR) Regulations, 2009.
Regarding quantum of penalty provisions of section 15J of SEBI Act were applied by Respondents and are of the view that investigation report has not quantified profit/loss for the nature of violations committed by Appellant and no quantifiable figures are made available on record to assess the disproportionate gain or unfair advantage and amount of loss caused to an investor or group of investors, and hence penalty of ₹ 10,00,000/- has been imposed considering failure to comply with SEBI (DIP) Guidelines read with SEBI (ICDR) Regulations, 2009.
From the above paragraph, it is seen that loss caused to an investor or to a group of investors cannot be quantified but it is certain that investors, as a whole, incurred huge losses as a result of IPO, yet, though Appellant is not wholly responsible for the losses to investors, since there are others who played their role in causing loss to investors, the responsibility of Appellant was major, since he plays the coordinating role in bringing out IPO and is conceived to be the one who certifies veracity and adequacy of all disclosures and had the responsibility of bringing out all relevant fact and to ensure that no material information/fact is withheld is under obligation and has authority to call for all relevant information from company seeking IPO and is expected to carry out due diligence to bring our truth and adequacy of information in IPO at all stages. The penalty is, therefore, upheld and appeal against the impugned order is dismissed. No costs.
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2014 (2) TMI 1311 - ITAT DELHI
Penalty u/s 271(1)(b) - default of noncompliance during assessment proceedings - Held that:- Assessing Officer himself in the assessment proceedings has recorded the finding that Shri Kailash Jogani, CA and Shri Nitesh Aggarwal, CA, authorized representatives attended the assessment proceedings in compliance to notice issued under Section 142(1) and 143(2). He completed the assessment at the income returned by the assessee i.e. ₹ 1,80,290/-. In view of the above factual finding in the assessment order, we are of the opinion that the assessee cannot be said to have committed the default of noncompliance during assessment proceedings which may saddle with the liability of penalty under Section 271(1)(b). Accordingly, the penalty levied under Section 271(1)(b) for the all the years under consideration is cancelled. - Decided in favour of assessee.
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2014 (2) TMI 1310 - CESTAT, BANGALORE
CENVAT credit - air travel service - tour operator service - rent-a-cab service - Revenue has entertained a view that appellant should not have availed CENVAT credit since they were claiming abatement of 60% in respect of rent-a-cab service and 90% in respect of tour operator service - Held that: - the fact remains that the Commissioner has not verified the documents submitted even though he mentioned that he has taken note of the written additional submissions - instead of granting stay and postponing the final decision, it would appropriate to remand the matter to the Commissioner for the purpose of verifying whether the appellants have reversed the proportionate credit - appeal allowed by way of remand.
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2014 (2) TMI 1309 - ITAT AHMEDABAD
Set off of business loss against the addition u/s.68 disallowed - Held that:- The decision of the Hon’ble Gujarat High Court in the case of CIT Vs. Shilpa Dyeing & Printing Mills P. Ltd., (2015 (7) TMI 691 - GUJARAT HIGH COURT) is applicable to the facts of the case of the assessee. In this case, the decision of the Hon’ble Gujarat High Court in the case of Fakir Mohamed Haji Hasan (2000 (8) TMI 44 - GUJARAT High Court ) was also discussed. In this case it was held that once loss is determined, the same should be set off against the income determined under any other head of income including undisclosed income. Respectfully following the decision of the Hon’ble Gujarat High Court in the case of CIT Vs. Shilpa Dyeing & Printing Mills P. Ltd., (supra), the issue is decided in favour of the assessee
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2014 (2) TMI 1308 - BOMBAY HIGH COURT
Dishonouring of cheques - Suit for recovery of a sum which comprises of principal amount and interest calculated at the rate of 12% p.a - Held that:- None of the defences raised by the Defendant to the Summons for Judgment appears to be either substantial or bona fide. The defences can only be termed as illusory and moonshine. However, with a view to give an opportunity to the Defendant to prove his case at the trial and at the same time to protect the Plaintiffs, the Defendant can be appropriately granted leave to defend the suit on a condition of its depositing in the Court the principal amount of ₹ 67 crores claimed in the suit.
15. In the premises, the following order is passed:
(i) The Defendant is granted leave to defend the suit on, and subject to, the condition of deposit of ₹ 67 crores in the Court within a period of eight weeks from today;
(ii) On such deposit being made, the suit to be transferred to the list of commercial causes;
(iii) Written Statement to be filed within a period of six weeks thereafter;
(iv) The amount deposited by the Defendant may be invested by the Prothonotory and Senior Master of this Court in a fixed deposit in a Nationalized Bank initially for a period of two years and thereafter to be renewed from time to time till the disposal of the present suit;
(v) Suit to appear on board before the learned Judge taking commercial causes after fourteen weeks, i.e. on 16 June 2014.
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2014 (2) TMI 1307 - SUPREME COURT
High Court's contempt jurisdiction to create supernumerary posts of Marine Assistant Radio Operators - treat the contract Radio Operators at par with the regular Marine Assistant Radio Operators - Held that:- Direction of the High Court for creation of supernumerary posts of Marine Assistant Radio Operator cannot be countenanced.
Not only the Courts must act with utmost restraint before compelling the executive to create additional posts, the impugned direction virtually amounts to supplementing the directions contained in the order of the High Court dated 02.8.2006.
The alterative direction i.e. to grant parity of pay could very well have been occasioned by the stand taken by the Corporation with regard to the necessity of keeping in existence the cadre itself in view of the operational needs of the Corporation. If despite the specific stand taken by the Corporation in this regard the High Court was of the view that the respondents should be absorbed as Marine Assistant Radio Operator nothing prevented the High Court from issuing a specific direction to create supernumerary posts of Marine Assistant Radio Operator. The same was not done. If that be so, the direction to create supernumerary posts at the stage of exercise of the contempt jurisdiction has to be understood to be an addition to the initial order passed in the Writ Petition.
The argument that such a direction is implicit in the order dated 02.08.2006 is self defeating. Neither, is such a course of action open to balance the equities, i.e. not to foreclose the promotional avenues of the petitioners, as vehemently urged by Shri Rao. The issue is one of jurisdiction and not of justification.
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2014 (2) TMI 1306 - SC ORDER
Income earned from non-Compete Agreement - nature of receipt of commission in addition to salary - Income from salary vs Income from business - Contract of Service or Contract for Service - Agreement was entered into in dual capacity - salary in capacity as an employee of UC and non-compete fees for not taking away business of the firm - Held that:- HC held that [2012 (12) TMI 168 - DELHI HIGH COURT] the commission amount clearly was part of salary answering the description under the inclusive definition u/s 17 of the Act
Leave granted. Hearing expedited.
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2014 (2) TMI 1305 - GUJARAT HIGH COURT
Order of provisional attachment - Jurisdiction of judicating Authority, which has subordinate jurisdiction to that of a High Court confirming the order of provisional attachment, especially, when the petitions filed by the appellants-original petitioners were pending before this Court - alternative remedy
- Held that:- Section 35 of the PMLA Act provides the procedures and powers of Appellate Tribunal under the Act. It goes without saying that the Act, itself, is a self-contained Act, and therefore, even after a contention is raised by both learned Sr. Advocates, Mr. Thakore and Mr. Joshi, that the Tribunal shall have no jurisdiction, same does not find favour with us.
Also unable to persuade ourselves to accept the submission made by the learned Sr. Advocates that the Tribunal would not exercise jurisdiction, only because the concerned authority has relied upon a decision of the Andhra Pradesh High Court, which is a subject-matter of appeal before the Hon’ble Apex Court.
Be that as it may, the Act being a complete Code in itself and in view of the fact that we are inclined to dismiss the appeals only on the ground of jurisdiction, the other submissions made and the decisions cited by the learned Counsels for the appellants and the respondents are not delve upon in extenso by us, leaving it open for the parties to raise the same before the appropriate forum in appropriate proceedings. The reason for the same being, this Bench is of the opinion that the learned Single Judge has, after considering the provisions of the Act, has relegated the parties to the most efficacious alternative remedy available to them under the law and we do not think that we would like to interfere with same.
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2014 (2) TMI 1304 - PATNA HIGH COURT
Recovery of outstanding dues of the Government of India - Circular dated 1st January, 2013 issued by the Government of India, Department of Revenue, Central Board of Excise and Customs, New Delhi - Held that: - the petitioner having lost before this Court, the Hon’ble Supreme Court having not granted stay pending the appeal, necessary legal consequences would be recovery of the outstanding dues. The power can legitimately be exercised irrespective of the impugned circular - it is incorrect to hold the circular to be arbitrary or discriminatory or violative of any fundamental or statutory right of the petitioner or any other party - petition dismissed - decided against petitioner.
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2014 (2) TMI 1303 - CESTAT, NEW DELHI
CENVAT credit - welding electrodes used in repair and maintenance of capital goods - Held that: - the issue is no more res integra and stands settled by various decisions of High Courts that welding electrodes used for repair and maintenance are admissible Cenvatable goods - reliance placed in the case of AMBUJA CEMENTS EASTERN LTD. Versus COMMISSIONER OF C. EX., RAIPUR [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] - credit allowed - appeal dismissed - decided against Revenue.
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2014 (2) TMI 1302 - SC ORDER
Oppression and mismanagement - Closely held company - deemed public company - free transferability of shares - HC [2011 (6) TMI 666 - HIGH COURT OF BOMBAY] as ordered continuing the injunction which was initially granted by the Company Law Board for a period of six weeks - Held that:- Leave granted.
List the matters for final disposal on 9th April, 2014 at 10.30 a.m. as Item No.1.
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2014 (2) TMI 1301 - HIGH COURT OF CALCUTTA
Oppression and mismanagement - Held that:- In the instant case, the Company does not have any commercial activities. It has the immovable properties which are let out to the different tenants. The interest of the complaining members are sufficiently protected by appointment of the special officer/receiver who is directed to collect the rents from the tenants and to keep the same in separate account. It is only the share holding patterns as well as the introduction of the new directors are alleged by the petitioners and the supporting respondents. The main application for oppression and mismanagement is pending and the Court is not denuded of any power to annul all the action which amounts to oppression and mismanagement.
This Court, therefore, does not find that the proceeding under Section 397 & 398 at the time of initiation was validly instituted and assumed the representative character, does not become invalidated because of the reduction of the requisite shares subsequently. Although it is much debated by the warring parties that the issuance of the duplicate shares is clearly impermissible unless it is proved that the original is lost or the duplicate shares and can only be issued to the registered member, this Court feels that the same being the subject matter in the original proceeding and, therefore, is required to be dealt with for the purpose of granting the final relief.
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2014 (2) TMI 1300 - SUPREME COURT
Constitutional validity of Orissa Service of Engineers (Validation of Appointment) Act, 2002 - appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service - Held that:- In the case at hand, the State of Orissa had not suffered any adverse judicial pronouncement to necessitate a Validation Act, as has been the position in the generality of the cases dealt with by this Court. The title of the impugned Legislation all the same describes the legislation as a Validation Act. The title of a statute is no doubt an important part of an enactment and can be referred to for determining the general scope of the legislation. But the true nature of any such enactment has always to be determined not on the basis of the label given to it but on the basis of its substance.
The Enactment in the case at hand deals with the law relating to regularisation of incumbents holding public office on ad hoc or temporary basis, much in the same way as regularisation of such temporary appointments is ordered in terms of a scheme for that purpose. The only difference is that while a regularisation scheme can be framed by the Government in exercise of its executive power, the regularisation ordered in the case at hand is by way of a legislation. It is trite that what could be achieved by the Government by exercise of its executive power could certainly be achieved by legislation, as indeed it has been achieved in the case at hand. Question No.1 is answered accordingly.
Regularization of in-service degree holder Junior Engineers who have been working for considerable length of time as Assistant Engineers on ad hoc basis - Held that:- On a true and proper determination of the posts comprising the cadre strength of Assistant Engineers, some more vacancies could fall in the 5% quota proposed to be reserved for the degree holder Junior Engineers and no mandamus could be issued for filing up such vacancies. It is trite that existence of an enforceable right and a corresponding obligation is a condition precedent for the issue of a mandamus. We fail to locate any such right in favour of the writ petitioner degree holders who are still holding posts as Junior Engineers. They will have, therefore, to wait for their turn for promotion against the 33% quota reserved for them along with their diploma holder colleagues. We hardly need to emphasise that those appointed against 5% quota may also have had no such right, but since they have worked in the higher cadre for a long period and discharged duties attached to the posts of Assistant Engineers with the benefits attached thereto, their regularisation comes on a totally different juristic basis than the one sought to be urged on behalf of those who were left out. Appointments as Assistant Engineers were from out of Junior Engineers made strictly according to seniority. The fortuitous circumstance under which the appointments did not extend to the full quota of 5% would make no material difference when it comes to finding out whether the Junior Engineers can claim an enforceable legal right.
Seniority position of those being regularized either under the Validation Act or in terms of the directions being issued by us in these appeals - Held that:- Illegality or constitutional infirmity in the provisions of Section 3(2) or 3(3) of the impugned legislation. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary-ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would enbloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.
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2014 (2) TMI 1299 - ITAT PUNE
Addition of interest as well as brokerage - documents seized from the premises of Mr. Shriram H. Soni - Reopening of assessment - Held that:- Since identity of the assessee was not proved by Mr. Shriram H. Soni at any point of time nor any corroborative evidence was found from the residence of Mr.Shriram H. Soni so as to prove that the assessee is the same person as per the name appearing in the seized document, therefore, in absence of any contrary material brought to our notice, we set-aside the order of the CIT(A) and direct the Assessing Officer to delete the addition.
Since we have deleted the addition made by the Assessing Officer and upheld by the CIT(A), therefore, the ground relating to the validity of the re-assessment proceedings u/s.147 and applicability of section 153C become academic in nature and therefore is not being adjudicated. - Decided in favour of assessee.
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2014 (2) TMI 1298 - ITAT DELHI
Penalty u/s 271(1)(b) - proof of deliberate defiance on part of the assessee - Held that:- Penal action is not warranted as the present case does not fall in the arena of deliberate and willful defiance by not appearing before the AO on the specific date. A perusal of the record shows that the assessee was given about 10 days to give its explanation. It is also seen that the returned income has been accepted by the AO vide order u/s 153A r.w.s 143(3) and not u/s 144 of the Act.
Nothing has been brought on record to show that the present case is an attempt of deliberate defiance on part of the assessee. Infact the assessment having been completed u/s 143(3) of the Income Tax Act means that subsequent compliance in the assessment proceedings was considered as good compliance. It is further seen that no reasoning has been given by the CIT(A) as to why the following explanation extracted by him in pages 3 & 4 in para 4 of his order cannot be accepted - Decided in favour of assessee.
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2014 (2) TMI 1297 - KARNATAKA HIGH COURT
Vladity of reopening of assessment - notice issued u/s 148 having not mentioned the requirement of filing Return and the date within which the Return should be filed - scope of Section 292B - Held that:- The assessee not only responded to the notice under Section 148 within one month, but on the basis of the return filed earlier, participated in the proceedings till the matter reached the FAA and was disposed of.
A glance at Section 292B shows that under this provision, certain Acts are not to be treated as invalid, may be by reason of any mistake, defect or omissions, either in return of income, assessment, notice, summons or other proceedings. A notice cannot be invalidated by reason of any mistake, such as the one occurred in the present case, namely, the period of filing return of income was not specified as contemplated by Section 148 of the Act. If such a defect is not allowed to be cured, or treated as invalid so as to declare the notice invalid, despite the fact that assessee had taken that notice as valid and responded to it in letter and spirit and participated in the proceedings, the very purpose/objective of the provisions contained in Section 292B of the Act would stand frustrated/defeated - Decided in favour of revenue
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2014 (2) TMI 1296 - ITAT MUMBAI
Addition of labour charges and purchases - invoking the provisions of section 145(3) - Held that:- Addition was made by the AO merely on the basis of statement of Mr. Anilkumar Chahwalla who is a proprietor of M/s Padmavati Gems from whom the assessee purchased the goods and M/s Parth Corporation to whom the assessee made the lab our payments. The assessment framed in the case of said person Mr. Anilkumar Chahwalla was a subject matter of appeal before the Ld. CIT(A ), Valsad, vide order dated 27.12.2008, accepted the contention of the said assessee, Mr. Anilkumar Chahwalla. That statement on 24.12.2008 o btained by threatening the assessee of police action and under coercive pressure and the said statement was not given by free will.
Therefore, it was retracted immediately by way of an affidavit dated 27.12.2008 . It is well settled proposition that any statement obtained by coercive measures or under any pressure cannot be admitted as an evidence because it is not by free will. Therefore, the addition made by the AO on the basis of statement of Mr. Anilkumar Chahwalla which was retracted later on was not justified. Moreover the CIT(A) Valsad, while deciding the appeal of Mr. Anilkumar Chahwalla considered the transactions between the assessee and Mr. Anilkumar Chahwalla, proprietor of M/s Padmavati Ge ms and M/s Parth Corporation as genuine. Therefore, the AO is not justified in taking a divergent view. Similarly for the labour charges pa id to M/s Parth Corporation, the assessee furnished before the AO, copy of certificate dated 15.07.2005 issue by ITO Ward-1, Navsari, addressed to assessee, permitting deduction of TDS at a lower rate u/s 197 of the IT Act on the labour charges paid by the assessee to M/s Parth Corporation. Therefore, the transactions relating to the labour charges between the assessee and Mr. Anil Kumar Chahwalla, proprietor of M/s Parth Corporation, cannot be doubted particularly when the quantitative effect of the labour bills was also reflected in the stock register. - Decided against revenue.
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2014 (2) TMI 1295 - ITAT PUNE
Revision u/s 263 - Entitlement for claim of deduction u/s 80P - no elaborate discussion in this regard made by AO - Held that:- The circumstances explained by the assessee as well as the order-sheet entry recorded by the Assessing Officer on 19.09.2008 clearly reflects that claim of the assessee for deduction u/s 80P of the Act was very much before the Assessing Officer even before he picked-up the return of income of the assessee for a scrutiny assessment under section 143(3) of the Act. Therefore, the anomaly in the depiction of the claim of deduction under section 80P of the Act on account of a software glitch, as explained by the assessee, is not only plausible but appears to be borne out of record. Having regard to the aforesaid position emerging on a perusal of the assessment records maintained by the Department, we are unable to uphold the assertion of the Commissioner to the effect that the Assessing Officer entertained and allowed the deduction u/s 80P of the Act in the absence of any such claim in the return of income filed by the assessee.
The second point made by the Commissioner that the Assessing Officer did not make any enquiries with regard to entitlement of assessee to the deduction u/s 80P of the Act is also, in our view, not justified having regard to the material on record. In this context, A.Y. 2007-08 we find that in the course of assessment proceedings, assessee gave details of the incomes earned as also the claim of deduction u/s 80P(2)(d) of the Act in its communication which is on record. Evidently, the claim of the assessee was allowed by the Assessing Officer after being satisfied with the explanation of the assessee, though the discussion in the assessment order is quite brief on the aspect. So however, the decision of the Assessing Officer cannot be held to be erroneous simply because in the assessment order he has not made an elaborate discussion in this regard in terms of the parity of reasoning laid down by the Hon'ble Bombay High Court in the case of CIT vs. Gabriel India Ltd.(1993 (4) TMI 55 - BOMBAY High Court) - Decided in favour of assessee
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2014 (2) TMI 1294 - CESTAT, NEW DELHI
CENVAT credit - whether the various iron and steel items used by the respondents in their factory for fabrication of capital goods are cenvatable or not? - Held that: - If the items can be used in the fabrication of capital goods, the benefit of CENVAT credit of duty paid on various iron and steel items would be available to them in terms of the law declared by the Larger Bench decision of the Tribunal in the case of Vandana Global Vs. CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - credit allowed - appeal allowed - decided in favor of assessee.
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2014 (2) TMI 1293 - ITAT MUMBAI
Disallowance of Set Off of brought forward Business Loss against the deemed Short Term Capital Gains earned on Sale of Building and Plant & Machinery - Held that:- Assessee’s appeal is squarely covered by the decision of Digital Electronics Ltd. Vs. Addl. CIT [2010 (10) TMI 722 - ITAT, Mumbai] allowing the claim of the assessee for set off of brought forward business losses against short term capital gain as the income earned in the relevant year, although not taxable as 'profits and gains from business or profession' was an income in the nature of income of busiess nevertheless. The assessee was, therefore, indeed justified in claiming set off of business losses against the income of capital gains. - Decided in favour of assessee
Set off of brought forward unabsorbed depreciation against the short term capital gain - Held that:- This issue is also covered in favour of the assessee by the case of General Motors India Pvt. Limited vs. Dy. CIT [2012 (8) TMI 714 - GUJARAT HIGH COURT ] held any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001. And once the Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y. 1997-98 upto the A.Y. 2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever.- Decided in favour of assessee
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