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Showing 41 to 60 of 1817 Records
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2017 (5) TMI 1783
Under valuation of Stock valuation - valuation of the product sold by the assessee which was sarees - addition based on statement recorded during survey - only discrepancy noted by survey team was regarding valuation of stock and when that was confronted to the Director, he accepted that the stock was under valued in the books - HELD THAT:- As rightly taken note by the Ld. CIT(A), the length of each saree is approximately at 6.5 meters and nobody prevented the survey team from taking the measurement of each sarees. On this plea rejecting the purchase bills produced by the assessee was not correct and the CIT(A) has rightly held that the AO had also not found any defects in the books of account which were examined in the course of survey and also in the course of assessment proceedings. The Ld. CIT(A) has also noted that the AO has verified the purchases and sales by issue of notices u/s. 133(6) and 131 of the Act.
CIT(A) rightly held that the survey team failed to bring any evidence of any concealed income or under valuation of stock and, therefore, in the light of the retraction made by the assessee and the statement given before the survey team, without any material, the addition made cannot stand the scrutiny of law. CIT(A) rightly took note of the fact that the AO has not pointed out any specific item of stock or entry which is not entered into the books of account. As we noted earlier, the survey team could not point out that there was any excess stock or unrecorded stock found either during survey or during the assessment proceedings.
The sole basis of making the addition was based on the statement recorded during survey on 28.03.2011 and 131 statement recorded on 12.04.2011 which cannot be the basis for making the addition when the facts remain that the assessee has retracted the statement. As in the case of Pullangode Rubber Produce Co. Ltd.[1971 (9) TMI 64 - SUPREME COURT] held that the assessee should be given opportunity to say that admission is incorrect or does not say the correct state of facts.
Since the assessee has produced the books of account as well as the purchase bills which have been verified by the AO, the addition made by the AO has rightly been deleted by the Ld. CIT(A). CIT(A) has also took note of the fact that the rate of net profit and gross profit declared by the assessee is higher than that of the results of the earlier years and in 2006-07 the department has accepted the net profit and gross profit offered by the assessee and since the net profit and gross profit is higher than that of the earlier years, we do not find any justification in making the addition, therefore, we do not find any infirmity in the order of the Ld. CIT(A) and, therefore, we dismiss this ground of appeal of revenue.
Disallowance of sum paid to the customers - difference in the letter heads of both the parties when compared with that of the initial reply given by the said parties to the AO - HELD THAT:- We note that the AO partly disallowed the discount allowed to Awatram & Sons and Pooja Sarees on the ground that from the initial reply the AO got from the said parties he could not verify the veracity of the claim made by the assessee. However, when the assessee was confronted with the said fact, the assessee confronted the said parties who after verification of their books handed over the confirmation of the discount given by the assessee which was duly produced by the assessee before the AO. However, the AO did not accept the said confirmation from the parties on the ground that there were difference in the letter heads of both the parties when compared with that of the initial reply given by the said parties to the AO.
We note that the AO has not doubted the sales to the said parties. However, he doubted the genuineness of the confirmation given taking note of the different letter heads used by the said parties. When the AO confronted the assessee with the initial reply, the AO got from the said parties u/s. 133(6) of the Act, the assessee in turn confronted the said parties and once they had issued confirmation after verification which has been placed before the AO, the AO ought to have verified the veracity of the said confirmation letter if he has any doubt by calling the said parties before him or by deputing the Inspector to find out the veracity of the letter heads, rather than disbelieving the confirmation letter only on the basis of surmises and conjectures which cannot stand the scrutiny of law and, therefore, the Ld. CIT(A) has rightly deleted the addition which warrants no interference from our part and, therefore, we dismiss the revenue’s ground of appeal.
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2017 (5) TMI 1782
Reopening of assessment u/s 147 - claim of loss - as loss was suffered in sale and purchase of shares which had no connection with the business of the assessee as a share broker there is in fact tangible material to come to the conclusion that income escaped assessment which we have already discussed. There is thus no question of any change of opinion - HELD THAT:- SLP dismissed. However, the question of law is left open.
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2017 (5) TMI 1781
Reopening of assessment u/s 147 - Period of limitation to issue notice - HELD THAT:- The Tribunal in the impugned order has commented and stated that in the affidavit/service report submitted by the Inspector, the date of the notice was mentioned as 30.10.2001. This is clearly a clerical or typographical error as the date on the notice is 31.10.2001 and it is clearly reflected in Annexure A. It is not the case of either party that the notice was issued on 30.10.2001. Of course, there cannot be any doubt that department should have taken precaution and should have issued notice well in advance, as they knew that the limitation period for service would expire on 31.10.2001. Had care been taken this entire exercise and appeal would have been avoided.
In view of the facts stated above question of law is answered in favour of Revenue and against the respondent.
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2017 (5) TMI 1780
Notice u/s 143(2) within period of limitation - Addition u/s 68 - HELD THAT:- The matter is required to be remitted back to the tribunal in view of the fact that tribunal has committed an error in deleting the disallowance and wrongly allowed the appeal preferred by the assessee ignoring the submissions made by the department in this regard.
The issue is answered in favour of the department. The matter is remitted back to the tribunal to decide the same afresh in accordance with law. The order of tribunal is set aside.
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2017 (5) TMI 1779
Validity of SCN - time limitation - HELD THAT:- Issue Notice returnable on 14th June, 2017. By way of ad-interim relief, the respondents are restrained from taking any coercive action pursuant to the impugned order-inoriginal.
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2017 (5) TMI 1778
Disallowance of exemption u/s. 54F - disallowance of exemption claimed by the assessee u/s. 54F - assessee did not claim any deduction subsequently, the assessee filed a revised return u/s. 153A wherein the assessee claimed deduction u/s. 54F of the Act in respect of a new flat purchased by her - HELD THAT:- There is merit in the contention of the assessee, as the claim of the assessee is supported by the decision rendered by Hon'ble Bombay High Court in the case of B.G. Shirke Construction Technology P. Ltd.[2017 (3) TMI 879 - BOMBAY HIGH COURT] There is no dispute with regard to the fact that the present assessment falls in the category of abated assessment and hence the entire assessment is open before the AO.
The claim of the assessee for deduction u/s 54F of the Act can be entertained in the facts and circumstances of the present case. The assessee has also demonstrated before CIT(A) that she is holding only one residential house on the date of sale of commercial property. It has been submitted that the house, where she resides, does not belong to her. If that be the case, the assessee shall be entitled for deduction u/s. 54F - assessee has chosen not to disclose the ownership details of the house where she is residing, i.e., whether it belongs to some other family members or it was rented flat. Accordingly we set aside the order passed by Ld CIT(A) and restore the same to the file of the Assessing Officer with the direction to allow the claim of the assessee u/s. 54F - Decided in favour of assessee.
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2017 (5) TMI 1777
Characterization of income - Additions of the amounts of sale proceeds of shares declared as long term capital gain, treated by the AO as unexplained cash credit under section 68 - addition of unexplained money used for payment of commission for obtaining the said long term capital gain - HELD THAT:- We find that the assessee had purchased the shares of Robinson Worldwide Trade Limited for which it has submitted the purchase bills & ledger account of the purchase broker which clearly reveals that the assessee had earned speculation profit which was used for the purchase of shares of Robinson Worldwide Trade Limited. The said speculation profit and even the purchases have been accepted by the Department while passing the order u/s. 153A r.w.s. 143(3) of the Act for A. Y. 2004-05 and A. Y. 2005-06. Originally, the shares were issued in physical format which got transferred in assessee's name on 14.06.2003 and 20.04.2004. The said fact can be ascertained from the letter received by the assessee from Robinson Worldwide Trade Limited. The shares of the assessee were consolidated and Jumbo share certificate was issued. Thereafter, the said shares were dematerialized to de-mat account of the assessee held with HDFC Bank. Such demated shares were sold through AKD Securities Pvt. Ltd. as can be seen from the sale bills and the payments for the sale of said shares have been received through account payee cheques.
Even for assessment years 2004-05, the assessee has submitted various documentary evidences, which have not been considered by the AO. As regards to the reliance placed by the AO on the cross-examination conducted in the case of the assessee, we find that the assessee and the director of the broker DPS Shares & Securities Pvt. Ltd. have nowhere specifically stated in their respective statements that they have issued accommodation entries to the assessee. There is no link between the statement and the assessee. They have simply stated that they issued accommodation entries on instructions of certain third parties. Further, no statements of such third parties have been confronted and in such a case, no question of cross-examination of the broker arises when there is no specific statement with regards to the assessee.
Even otherwise, the alleged cross-examination as held was not conducted in context of the assessee and during the course of cross-examination proceedings, the purchase documents which have been stated that the accommodation bills pertain to Shri Brijesh D. Shah and which do not belong to the assessee.
Thus as per case law of coordinate Bench of Mumbai Tribunal in the case of Late Smt. Kanchanben J. Shah [2016 (2) TMI 1210 - ITAT MUMBAI] which is identical on the facts of the present case, respectfully following the same, we allow all these three appeals of the assessee.
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2017 (5) TMI 1776
Reopening of assessment u/s 147 - AO processed the return u/s 143(1)(a) - statutory provisions which was made applicable under section 143 at the relevant time which is produced on record and subsequent amendment - HELD THAT:- It will not be out of place to mention that order under section 143 was confirmed on August 11, 2000 when the return was filed and the notice which is impugned under section 148 came to be issued before the assessment could have been done.
The contention of the assessee that in the notice which has been issued under section 148, ingredients under section 148 are not fulfilled, in our considered opinion, when an order under section 143 is passed, the observations which are made in the case of Rajesh Jhaveri [2007 (5) TMI 197 - SUPREME COURT] in para Nos. 11, 12 and 13 as reproduced hereinabove would apply.
The contention raised by the counsel for the appellant is required to be accepted in view of the observations made by the Delhi High Court in KLM Royal Dutch Airlines [2007 (1) TMI 138 - DELHI HIGH COURT]
We are of the opinion that the Tribunal has seriously committed an error in upholding the notice under section 148 when the officer has regularly framed assessment. The view taken by the Commissioner of Income-tax (Appeals) is required to be accepted. - Decided in favour of assessee.
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2017 (5) TMI 1775
Seeking a direction to the respondents to complete the inquiry on the complaint made by the petitioner of professional misconduct within a maximum period of four weeks - HELD THAT:- The petitioner has filed the complaint in September - October 2016, which the respondent states, is under active consideration.
The matter is under active consideration. There is no justification shown by the petitioner for issuance of a direction to the respondents to expedite hearing of the complaints of the petitioner. The petitioner has to wait for its turn, as several matters are pending before the Director (Discipline). No ground for urgency has been pleaded or shown.
Petition dismissed.
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2017 (5) TMI 1774
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of dispute between the parties - impugned ex parte order was passed by 'Adjudicating Authority without prior notice or intimation of hearing to the Appellants-Corporate Debtors against the principles of rules of natural justice - winding up notice under Section 433 of Companies Act 1956 - HELD THAT:- Once the term "dispute" is given its natural and ordinary meaning, upon reading of the Code as a whole, the width of "dispute" should cover all disputes on debt, default etc. and not be limited to only two ways of disputing a demand made by the operational creditor, i.e. either by showing a record of pending suit or by showing a record of a pending arbitration - The intent of the Legislature, as evident from the definition of the term "dispute", is that it wanted the same to the illustrative (and not exhaustive). If the intent of the Legislature was that a demand by an operational creditor can he disputed only by showing a record of a suit or arbitration proceeding, the definition of dispute would have simply said dispute means a dispute pending in Arbitration or a suit.
What appears from the present case is that much before enactment of the Insolvency and Bankruptcy Code 2016, in or around 2013, the Appellant-Corporate Debtor' entered with respondent M/s. Essar Projects India Limited and Another Memorandum of Understanding for construction of work at 0.2MTPA Steel Melt Shop Complex at Pithampur, Dist. Dhar, Madhya Pradesh. For one or other reason the outstanding dues in connection with construction work were alleged to have not been paid by appellant to the Respondent - Operational Creditor - the appellants were called upon by Respondent - Operational Creditor to repay the dues of ₹ 6,83,06,077/- along with interest® 18%. It was mentioned that the said notice issue under Section 433(e) read with Section 434 of the Companies Act 1956.
In the present case as admittedly a notice was issued by Respondent-Operational Creditor under Section 433(e) and 434 of the Companies Act 1956 in 28th October 2016 which was disputed by Appellant - 'Corporate Debtor' objecting quality of service and non-completion of the work within time which is much prior to enactment of 'I & B Code', 2016, and notice under Section 8 of the I & B code', there is an "existence of dispute" for which the petition under Section 9 preferred by Respondent - Operational Creditor was not maintainable - as the impugned order dated 6th March 2017 was passed by 'Adjudicating Authority without notice to the Appellant - Corporate debtor in violation of principle of natural justice and the Adjudicating Authority failed to notice the relevant facts that there was a dispute raised and replied by the Corporate Debtor, the impugned order passed by Adjudicating Authority cannot be upheld.
Appeal allowed.
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2017 (5) TMI 1773
Direction to close down the inland container depot at Tuglakabad (ICD) and submit a report along with photographs - revision petition filed on the ground that such directions by the learned Magistrate were not sustainable under Section 133(1)(b) of the Code of Criminal Procedure as no evidence was taken prior to passing of such an order and that the order was in the nature of a knee jerk reaction - HELD THAT:- The power under the aforesaid Section can be exercised either on receipt of a police report or other information under certain circumstances which have been enumerated in this Section. It begins with a conditional order under Section 133, which could be served on the person against whom the order is made as if it were a summons. On the service being effected, the person concerned may carry out the order, in which case, the proceedings will come to an end. If he does not, he has to show cause against the order or apply to the Magistrate to test whether the order is reasonable and proper. If the person does not comply with the order and fails to appear before the Magistrate, the order is made absolute. He may also be prosecuted under Section 188 of the Indian Penal Code - If the person disputes the existence of any public right, the Magistrate will hold preliminary enquiry and if he finds the contention good, the question will be left to be determined by a Civil Court. If there is no substance in the contention, the enquiry will proceed. When an order is made absolute under Section 136 or Section 138, the person will be called upon to carry it out within the specified time and if he fails to carry it out, he could be prosecuted under Section 188 of the Indian Penal Code.
From the order dated 06.05.2017 which is a conditional order of closing down the ICD, Tuglakabad and submitting the report along with the photographs before the learned Magistrate on 09.05.2017, it does not appear that any enquiry was held by the learned Magistrate. As such, thereafter, the order dated 09.05.2017 containing the impugned directions only means that the order of 06.05.2017 has been made absolute by order dated 09.05.2017. However, the order dated 09.05.2017 has been nomenclatured as an interim order under Section 133 Cr.P.C. - The provisions of the Code enjoin the Magistrate, for the purposes of an enquiry under Section 137 or 138, to direct a local investigation or summon and examine any expert, subject to the provisions of Section 140 of Cr.P.C.
It appears that the plan contains guidelines for all types of possible disasters like fire, chemical leaks, spills, terrorist activities, earthquakes etc. Various standard operating procedures, instructions and guidelines have been issued for minimizing the chances of mishap and losses. The guidelines are all comprehensive and take into account the precautions for storage and transportation of hazardous goods, cargo at different levels. Emergency response instructions have also been issued and an awareness programme is also in the offing - The plan definitely evinces the commitment of the organization to the safety of its employees, the public and the environment.
It appears to be imperative, that the matter be referred to the learned Magistrate for a final determination regarding making of an absolute order for removal of nuisance. The Magistrate would definitely have to apply its mind as to whether the existence of ICD, Tuglakabad with the storage facilities and with the requirement of complying with the safety standards under the DGFT and IMDG Code, can at all be called nuisance.
The matter is remitted to the Court of the learned Magistrate for holding an enquiry, hearing the petitioner and the respondent No.2 and if needed directing for local investigation by summoning and examining any expert under Sections 139 and 140 of the Code of Criminal Procedure, and thereafter passing necessary orders to remove nuisance if at all it exists and to ensure the safety of people and environment - Revision petition disposed off.
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2017 (5) TMI 1772
Seeking to remove all the material i.e. all obnoxious chemical/gas, any explosive material and any other material which could cause health hazard to the public in the vicinity - seeking release of all the containers from the site in a phased manner - allowance of fresh containers at a particular site or not - submission of Disaster Management plan mitigate any emergency/disaster - undertaking to the effect that no container having obnoxious chemical/gas/explosive be allowed at the site, which may lead to any disaster.
HELD THAT:- What has been prayed for is that the order dated 09.05.2017 be modified to the extent that only the containers having chemicals/gases/explosive materials or any other material which could cause health hazard to the public in the vicinity be removed within a reasonable period and that the direction under (b) and (c) be put in abeyance till further orders.
Issue notice. Mr. Rahul Mehra, learned senior standing counsel accepts notice. Status report be filed on or before the next date - Till that date, the directions passed in item Nos.(b) & (c) of the order impugned is kept in abeyance.
Relist on 11.05.2017.
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2017 (5) TMI 1771
Addition u/s 68 - Unexplained cash deposit in bank account - HELD THAT:- As assessee has established the identity, creditworthiness and source of loan from Smt. Parvati Bai Chouhan being 78 years old senior citizen pensioner lady and the AO without making any inquiry from the lender lady, proceeded to make the addition u/s 68 of the Act merely on the basis that cash was deposited immediately before issuance of cheque to the assessee. Unless it is established that the money deposited by the assessee was flown from the assessee and the same was routed through a fictitious lender by manipulating the book entry then only the amount can be taxed in the hands of the assessee by making the addition u/s 68 - Decided in favour of assessee.
Disallowance being 5% of labour and wages expenses - HELD THAT:- From the observations of the authorities below, we clearly observe that the discrepancies were pointed out by the Assessing Officer to the AR vide order sheet entry dated 9.1.2015 and on 12.1.2015 the AR agreed to disallowance of 5%, hence it can be safely presumed that the AR agreed to the impugned disallowance after taking instruction from the assessee and we also point out that as per ground no. 2 mentioned in Form No. 35 before the Commissioner of Income Tax (Appeals) it is not the contention or case of the assessee that the AR agreed to the ad hoc disallowance without any instructions from the assessee. We are, therefore, unable to see any valid reason to interfere with the orders of the authorities below wherein they have made ad hocdisallowance of 5% of total expenses claimed by the assessee on labour and wages. Therefore, the addition made by the Assessing Officer and upheld by the Commissioner of Income Tax (Appeals) is confirmed - Decided against assessee.
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2017 (5) TMI 1770
Deduction u/s 80P(2)(a)(i) in respect of interest income - HELD THAT:- This issue is covered by the decision of Tumkur Merchants Souharda Credit Co-operative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] as well as in the case of M/s. Guttigedarara Co-operative Society Ltd. [2015 (7) TMI 874 - KARNATAKA HIGH COURT] - Also in the case of Shri S.M. Revana Siddaiah, CEO, Primary Agriculture Credit Co-operative Society Ltd. & Others [2017 (2) TMI 1500 - ITAT BANGALORE] - Thus claim of the assessee under Section 80P(2)(a)(i) of the Act in respect of interest income is allowed and orders of the authorities below are set aside. - Decided in favour of assessee.
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2017 (5) TMI 1769
Revision u/s 263 - Assessment of income from life insurance business - surplus arising from “shareholder account” as separate income and not as income arising from life insurance business - as per CIT set off of deficit in policyholders account to the surplus in the Shareholders account is wrongly done against the provisions of sec 44 read with section 115B - set off of loss from policyholders account which is from the life insurance business cannot be set off against the income from shareholders account and by setting off of the deficit from the policyholders account to the surplus of the Shareholders account, the assessee has not offered the income which is taxable at normal rate - HELD THAT:- As reply the assessee had clearly brought out its understanding on the rules of aggregation. According to it, Rule 2 of first schedule of Income-tax Act, provided for aggregation of profits as per policy holders account and shareholders account. No doubt, assessment order passed by the AO which has been subjected to 263 proceedings before us is cryptic without any reference to the above mentioned letter submitted by the assessee. However, it is clear from the reply given by the assessee, as extracted supra, that the AO had required the assessee to explain its stand regarding aggregation of profits / loss as it appeared in policy holders account and as it appeared in shareholders account and the assessee had given an explanation. We cannot say that the AO was not aware of the issue of aggregation.
CIT himself has mentioned that the assessee was engaged in life-insurance business. Question whether policy holders account and shareholders account, in the case of an assessee carrying on only the business of life-insurance business was to be separated or consolidated, had come before the Tribunal in ICICI Prudential Ltd [2015 (1) TMI 9 - ITAT MUMBAI]
There is a clear opinion expressed by the Mumbai bench that when section 44 of the Act is applied, distinction between various heads of income paled into insignificance. The assessee had in its return, separately shown the revenue in its shareholders account and revenue derived from its policy holders account. Revenue account for policy holders account clearly reflected the change in valuation of liability in respect of life-policies which were accounted
There is a clear opinion expressed by the Mumbai bench that when section 44 of the Act is applied, distinction between various heads of income paled into insignificance. The assessee had in its return, separately shown the revenue in its shareholders account and revenue derived from its policy holders account. Revenue account for policy holders account clearly reflected the change in valuation of liability in respect of life-policies which were accounted. Appeal filed by the assessee is allowed.
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2017 (5) TMI 1768
Assessment u/s 153A - incriminating material found in search or not? - HELD THAT:- In the present case, the issue dealt with by the AO in the assessment order u/s.153A of the Act, could not and ought not to have been examined by the AO in the assessment proceedings u/s.153A of the Act as the said issue stood concluded with the assessee’s return of income being accepted prior to the date of search and no notice having been issued u/s.143(2) of the Act within the time limit laid down in that section. Such assessment did not abate on the date of search which took place on 17.01.2012.
In respect of assessments completed prior to the date of search that have not abated, the scope of proceedings u/s.153A of the Act has to be confined only to material found in the course of search. Since no material whatsoever was found in the course of search, the additions made by the AO in the order of assessment for both the Assessment years could not have been subject matter of proceedings u/.s.153A of the Act. Consequently, the said various additions made in the orders of Assessment ought not to have or could not be made by the AO. Gr.No.1 raised by the Assessee in both the appeals are accordingly allowed.
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2017 (5) TMI 1767
Computation of book profits for the purpose of computing tax liability u/s 115JA - as per Appellate Authorities provision for non-performing assets and lease equalization fund cannot be added back to the book profits as per explanation to section 115JA(2) - HELD THAT:- Having regard to the plain provisions of the Act, the said amount can be added back to book profits for the purpose of determining 115JA of the Act, as it is specifically authorised by clause (g) to Explanation to sub-section (2) of section 115J. This is permissible as per law laid down by the Hon’ble Supreme Court in the case of Apollo tyres [2002 (5) TMI 5 - SUPREME COURT] and the decision of Weizmann Homes Ltd. [2013 (5) TMI 123 - KARNATAKA HIGH COURT] The decision of the Hon’ble Delhi High Court in the case of Indian railway Finance Corporation Ltd.[2014 (6) TMI 224 - DELHI HIGH COURT] is not applicable to the facts of the present case as in that decision, it is not admitted that provision for lease equalisation charges is nothing but diminution in the value of assets. Therefore, the CIT(A) ought not to have allowed the claim of the assessee without examining the order of the Hon’ble High Court of Karnataka in detail. Therefore, the orders of the CIT(A) are reversed. Appeals filed by the revenue are allowed.
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2017 (5) TMI 1766
Suit for recovery - it was argued by appellant that the amount deposited by the appellant in the bank accounts of the respondents was to be returned to him on demand and as such Article 22 of the Schedule to the Limitation Act, 1963 was applicable and the limitation will start from the date of the demand i.e. 22.2.2013 - HELD THAT:- The evidence of the appellant before the Trial Court having deposited ₹ 2,21,000/- in the bank account of proprietary firm of respondent No. 1, ₹ 1,49,000/- in the bank account of respondent No. 1 and ₹ 1,50,000/- in the bank account of respondent No. 3 totalling to ₹ 5,20,000/- went unrebutted and unchallenged since the respondent Nos. 1 & 3 were ex-parte before the learned Trial Court. All these deposits were made by the appellant in the respective accounts of the respondent Nos. 1 & 3 in the month of May, 2010. The suit was filed by the appellant on 23.8.2014. The appellant has not placed on record any written agreement executed between the parties.
Article 19 of the Act applies to a suit for recovery of money payable on account of money lent for which the period of limitation is three years and time from which the period of limitation begins is the date when the money is lent. Under Article 22 of the Act, for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable, the period of limitation is three years and time from which the period of limitation begins is the date when the demand is made.
There is no evidence that the money deposited by the appellant in the accounts of respondent Nos. 1 & 3 was payable on demand. The appellant had not tendered in evidence the alleged letter dated 22.2.2013 addressed to the respondent No. 1 vide postal receipt Ex. PW-1/19. Postal receipt is not connected to the letter - the appellant has not even requested to adduce additional evidence under Order 41 Rule 27, CPC. Even the photocopy of the letter which is placed on record along with Ground of Appeal is addressed to respondent No. 1 and not the respondent No. 3 - the appellant cannot be allowed to claim that his suit is covered under Article 22 of the Act.
The appellant fails to show that the suit was filed within the period of limitation and the Trial Court has arrived at a right conclusion that the suit was barred by limitation - there are no merit in the appeal - the appeal is dismissed with cost of ₹ 25,000/- payable to respondent No. 2.
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2017 (5) TMI 1765
Jurisdiction - certification of correctness of inventory - conduct of proceedings under Section 110(1B) of the Customs Act, 1962 - Binding precedent or not - HELD THAT:- The special leave petition is dismissed leaving the question of law open. It is agreed that verification of the stocks in question, for the purpose of Section 110(IB) of the Customs Act, 1962, be made by the Judicial Magistrate or any person authorised by him for the purpose. No objection shall be raised in this regard by the parties concerned.
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2017 (5) TMI 1764
Scheme of compromise or arrangement - Jurisdiction - power of Tribunal to grant dispensation of the shareholders' meeting regarding the proposed scheme of amalgamation where all the shareholders have given consent - scope of Companies Act - Companies Act, 2013 has authorized only for the dispensation of the meeting of creditors where creditors having at least 90% value agreed and confirmed by way of an affidavit scheme - the matter was heard before the Bench - both the member differ on certain points and gave separate judgements and on that basis the matter was referred to the Hon'ble President under the provisions of Section 419(5) of the Companies Act, 2013 for constituting larger Bench - matter was then referred to the 3rd Member, Ms. Manorama Kumari, Member (Judicial).
HELD THAT:- Hon'ble President, NCLT referred the matter to the 3rd Member, Ms. Manorama Kumari, Member (Judicial) who has given a separate judgement and has passed order, which is annexed herewith as Annexure C.
As per Ms. Manorama Kumari, Member (Judicial),
There is imperative need to examine Section 230 and Section 232 of the Companies Act, 2013 and Rules made thereunder including the NCLT Rules, 2016 in the context of the objectives of the new Act and the legislative history behind this subject - Section 230(3) Companies Act, 2013 and Section 232(2) of the said Act and Rule 6 of the Companies (Compromises, Arrangements and Amalgamations Rules 2016, both start with the word "Where" and this has to be read with the word "may" as mentioned hereinabove. Now a question arises, that what was the legislative intent and the ratio decidendi behind using the word "may" and it is important to understand as to why the High Courts have exercised discretion under Section 391(1) of the Companies Act, 1956. It has to be accepted that the word "may" introduces an element or an essence of discretion and whenever the question of discretion comes in, authority follows and perhaps that is the reason why the authority and the inherent powers are granted so that in the interest of justice the same can be exercised in appropriate situations.
It cannot be ignored that almost all the High Courts have exercised this discretion since long and dispensed with the calling of the meetings in appropriate situations. The precedents created by the High Courts to dispense with the requirement of convening the meetings are worth and continuation of such precedents are virtue in the era of ease of doing businesses as well as future course of corporate actions. A settled issue should not be unsettled without proper reasons. Thus the notion that calling of meetings is mandatory does not stand.
In this case, number shareholders of both the applicant companies are very small (including majority common shareholders) and all of them have given their consents for the scheme in writing and the financial position of applicant/ amalgamated company shall have positive net worth post effectiveness of the Scheme and there has been no compromise with the creditors and that the respective creditors would, in no way, be affected by the scheme and that all the liabilities of the Amalgamating Company shall stand transferred to the Amalgamated Company. Scheme does not contemplate any corporate debt restructuring exercise.
Section 232 of the Companies Act, 2013 is a specific provision carved out by the legislature when both the conditions mentioned in clauses (a) and (b) of sub-section (1) of Section 232 of the said Act are satisfied - The Tribunal is empowered to take appropriate steps in the interest of justice under Rule 11 of National Company Law Tribunal Rules, 2016 read with Rule 24(2) of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
Various directions regarding holding, convening as well as dispensing of various meetings issued.
Application allowed.
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